CHANCERY DIVISION
Fetter Lane, London, EC4 1NL |
||
B e f o r e :
sitting as a Judge of the High Court
____________________
ALTUS GROUP (UK) LIMITED | Claimant | |
- and – | ||
(1) BAKER TILLY TAX AND ADVISORY SERVICES LLP | ||
(2) BAKER TILLY TAX AND ACCOUNTING LIMITED | Defendants |
____________________
David Turner QC (instructed by Taylor Wessing) for the Defendants
Written submissions: 21 & 28 January and 2 February 2015
____________________
Crown Copyright ©
H.H. Judge Keyser Q.C.:
Introduction
Permission to appeal
1) There is a double irony in the way the ground is put. First, the claimant contended at trial, against the defendant's submissions, that the legal points should not be determined, except where they were plain, but should be approached on the loss of a chance basis; and I agreed with that contention. The present ground amounts to saying that (with the exception of one point that has minimal impact on the claim) I should have decided all of the legal points, but only in favour of the claimant. Second, the reason why Mr Ewart QC was brought in to argue the section 54 point was that Mr Yates believed that he would be professionally embarrassed, because the claimant's case on section 54 would involve him arguing directly to the contrary of the argument he had advanced on behalf of HMRC in an ongoing case in the Upper Tribunal. Mr Yates therefore clearly considered the section 54 objection properly arguable; he could not have argued as he did for HMRC if he did not.
2) It is inherent in the "loss of a chance" approach that the court will not, in a case such as the present, decide points of law that would be capable of decision, and indeed would require decision, in a different type of case. All points of law are ultimately capable of being decided, but if that meant that they always had to be decided the "loss of a chance" approach would be undermined. I assessed the strengths and weaknesses of both sides' arguments, and I see no proper basis for overturning my assessment of the prospects of this remaining ground of tax challenge.
Costs
The award of costs
1) The defendants were the successful party.
2) The judgment in favour of the defendants was less advantageous to the claimant than the terms of a Part 36 offer made on 13 October 2014 and having effect from 4 November 2014.
1) Subject to paragraph 2 below, the claimant shall pay 50% of the defendants' costs until and including 4 November 2014 and 100% of the defendants' costs after 4 November 2014; such costs to be subject of a detailed assessment on the standard basis if not agreed. (I understand that these are the appropriate dates. If I am a day out, the parties will no doubt tell me.)
2) There shall be no order as to the costs of Ms Dyson's report dated 20 June 2014 and of the "Second Independent Expert Report of David Sayers" dated 18 July 2014.
Interest on costs
Payment on account of costs