Appeal against notice issued by Comptroller to Volaw seeking information under tax agreement between Norway and Jersey and seeking variation in trial date.
Before : |
Sir Michael Cameron St. John Birt, Kt., Bailiff, sitting alone. |
Between |
Volaw Trust & Corporate Services Limited |
Appellant |
And |
Comptroller of Taxes |
Respondent |
And |
Berge Gerdt Larsen |
Appellant |
And |
Comptroller of Taxes |
Respondent |
Advocate A. D. Hoy for Volaw.
Advocate R. J. MacRae for the Respondent.
Advocate J. Harvey-Hills for Berge Gerdt Larsen.
judgment
the bailiff:
1. This is an application by Mr Larsen and Volaw to adjourn the hearing of their appeal against what I will call the first notice issued by the Comptroller in January 2012. The appeal is due to be heard over four days commencing 23rd July, in two weeks' time.
2. I begin by reminding myself that good reason has to be shown to adjourn a trial date. The Court's timetable should wherever possible be adhered to for reasons which are set out in the authorities and which I do not need to repeat. I also accept that, as Mr MacRae submitted, it is important that appeals against decisions of the Comptroller in respect of tieas should be heard promptly. The Court will certainly do its best to achieve that objective as far as possible.
3. However, this cannot be at the expense of justice. The parties must be given the opportunity to prepare and argue their cases fully. Both counsel agreed that this was an important case; it is the first time that the Court will consider the Comptroller's duties in respect of tieas and requests from overseas jurisdictions; it is important for the Island and it is important for the parties. It is therefore also important that the Court should receive the maximum assistance from counsel and that the parties should have the opportunity to prepare the matter fully and be in a position to put their best foot forward.
4. I have concluded that the balance of justice in this case comes down in favour of adjourning the appeal. The need to adjourn arises out of two actions which have been taken by the Comptroller. First, in March the Court laid down a timetable to bring this matter to trial. That timetable was varied by agreement between the parties because of a slight delay on the part of the appellants. The revised timetable required the Comptroller to file his expert evidence by 13th June and reduced the time available for the appellants to file expert evidence in reply. However the Comptroller did not file his evidence by 13th June, nor did he seek or obtain an agreed extension or an extension from the Court. He simply failed to file his evidence until close of business on 28th June, effectively 29th June. The appellants say that the evidence filed by the Comptroller raises two new matters of Norwegian tax law which require to be addressed by their expert in his reply. They say that one of the other matters also requires there to be further evidence on the facts of the case from Volaw in order to deal with these new matters raised by the expert retained by the Comptroller.
5. It is accepted by all parties that this is not the Comptroller's personal fault, in that it has not been easy to obtain the necessary expert evidence in time. But this is not a matter of attributing blame to individuals; it is a matter of considering the consequences of the fact the Comptroller was late in filing the expert evidence and breached the timetable laid down by the Court. I accept for the reasons put forward by Advocate Harvey-Hills that this delay on the part of the Comptroller raises a real risk that the appellants will be prejudiced in their preparation and their conduct of the appeal.
6. The second action taken by the Comptroller is that he issued a further notice on 28th May, 2012. This second notice apparently includes all the documents sought in the first notice but also seeks additional documents. The appellants have appealed that second notice and that has been fixed for hearing in November. Originally, the Comptroller wanted the appeal against that second notice to be heard at the same time as the appeal against the first notice and that that should be at the July sitting. But he now accepts that that is impracticable as being too soon; so he now argues that, in fact, rather than it being heard together, they should be heard separately.
7. The appellants argue that this is oppressive. They say that essentially the second notice replaces the first notice because it includes everything in the first notice but the appellants will still have to argue their appeal in respect of the first notice. They dispute Advocate MacRae's suggestion that the result of the appeal against the first notice will in reality determine the outcome of the second appeal and render it unnecessary. They argue that, while some of the issues will be the same in respect of the two notices, the much greater width of the second notice means that there will be argument in relation to that notice regardless of the outcome of the appeal in respect of the first notice. They say therefore that they will be faced with two trials in respect of what is really one matter.
8. In my judgment the decision of the Comptroller to issue the second notice changed things and I consider that it would be unsatisfactory to run the risk of two trials. In my judgment the better course is to have one appeal which deals, to the extent that this is necessary, with both notices.
9. I must of course consider the prejudice to both parties as a result of either granting or not granting an adjournment. I have already said that I accept that there is a substantial risk of the appellants being prejudiced if I do not grant an adjournment. Advocate MacRae says that the position of the Norwegian tax authorities would be prejudiced if I do grant an adjournment. He says that the evidence which will be obtained from the first notice is required for the criminal trial in Norway against Mr Larsen which is due to start on 16th August and to take some six months.
10. However, both experts appear to be agreed that the evidence from the first notice is not actually required for the prosecution itself. Thus at paragraph 130 the tax expert Mr Drangsholt says that a prosecution may proceed without the Norwegian tax administration first having assessed the tax and he said the documents are required for that very purpose. He goes on to say that the reason that the police want the tax assessment to be conducted before the criminal matter relates to confiscation and forfeiture. That of course will come right at the end of the trial which, on the present programme, will be after the hearing of the appeal against both notices here. Furthermore, it is presumed that the case in respect of such matters can be adjourned once the outcome of guilt or innocence is determined.
11. So, having regard to all these matters, I conclude on balance that the two notices of the Comptroller should be considered on appeal together and that the interests of justice come down in favour of adjourning the appeal and hearing both appeals in November if they cannot be heard before.
No Authorities