Sir Michael Birt, Kt., Bailiff, sitting alone.
Larsen Oil & Gas Drilling Limited
Independent Oil Fields Rentals IOR Limited
North East Oil Limited
Comptroller of Taxes
Advocate A. D. Hoy for the Applicants.
Advocate J. D. Kelleher for the Respondent.
1. This is an application by the applicants for leave to apply for judicial review of the decision of the respondent ("the Comptroller") to issue a notice ("the Notice") on 28th May, 2012, to Volaw Trust and Corporate Services Limited ("Volaw") pursuant to Regulation 3 of the Taxation (Exchange of Information with Third Countries)(Jersey) Regulations 2008 ("the 2008 Regulations"). The Notice required Volaw to provide the Comptroller with documents relating to, inter alia, the affairs of the applicants.
2. The application is very closely linked with a matter which has already been before the courts by way of an appeal by Volaw and Mr Berge Larsen ("Mr Larsen") (pursuant to the right of appeal conferred by the 2008 Regulations) against the issue of the Notice. The decision of the Royal Court rejecting that appeal is to be found at Volaw Trust and Corporate Services Limited and Larsen-v-Comptroller of Taxes  (2) JLR 40 and the decision of the Court of Appeal dismissing the appeal from the decision of the Royal Court is to be found at Volaw Trust and Corporate Services Limited and Mr B Larsen-v-Office of the Comptroller of Taxes  JCA 239, although no doubt it will in due course be reported in the Jersey Law Reports. Volaw and Mr Larsen subsequently sought leave to appeal to the Judicial Committee of the Privy Council ("the Privy Council") but that was rejected on 21st May, 2014, on the ground that the application for leave did not raise an arguable point of law.
3. A stay on the ability of the Comptroller to transmit the information received pursuant to the Notice to the Norwegian Tax Authority (at whose request the Notice had been issued) was granted by the Court of Appeal pending application to the Privy Council. I was advised at the hearing that the stay is currently still in force and that Mr Larsen has applied to the Privy Council for it to be maintained pending an application which he wishes to make to the European Court of Human Rights. At the time of the hearing, I was informed that the decision of the Privy Council on the question of a stay was awaited. It followed that the stay might be lifted at any moment, although it might be maintained pending Mr Larsen's application to the European Court if the Privy Council so decided.
4. The current application for leave to move for judicial review is dated 6th June, 2014, and seeks interim relief that the Comptroller should not provide the documents gathered pursuant to the Notice to the Norwegian Tax Authority until this application is determined. Following receipt of the application, I directed that the matter be listed for oral argument pursuant to RCR 16/1(4) and that the Comptroller be given notice of the application. Advocate Kelleher duly attended on the Comptroller's behalf. I granted an interim stay on the release of documents to the Norwegian Tax Authority in the meantime.
5. The hearing took place on 23rd June, 2014. I announced my decision the following day to refuse leave to apply for judicial review. The applicants indicated at the hearing that they would wish to appeal any adverse decision. In view of my impending departure from the Island the next day, I ordered that the interim stay should be continued until 14 days after delivery of the reasons for my decision. This was intended to give the applicants time to apply to a single judge of the Court of Appeal should they so wish. Having now returned to the Island, and given the lengthy delay in this matter as described below, I have sought to prepare these reasons as a matter of urgency so that the matter may be considered by a single judge as soon as possible.
6. I should add that I have since been informed that the Privy Council has decided not to maintain the stay and that it will lapse on 16th July.
7. In order to put the application in context and to explain the reasons for my decision to refuse leave, it is necessary to describe the history of this matter. I propose to do so comparatively briefly. The full background is to be found in the judgments of the Royal Court and the Court of Appeal referred to earlier.
8. Mr Larsen is a Norwegian national. His tax affairs have been under investigation in Norway for some time. The first applicant ("Larsen Oil"), the second applicant ("IOR") and the third applicant ("North East") are companies administered in Jersey by Volaw, which is a registered trust company carrying on the business of company and trust administration in Jersey. Larsen Oil and IOR are Jersey companies, North East is a BVI company.
9. According to the affidavit of Mr Mark Healey, a director of Volaw, whose affidavit was sworn on behalf of the applicants, Larsen Oil was at all material times owned as to 25% by Mr Larsen (although this was increased to 27.78% in May 2014). Larsen Oil owns, inter alia, 35% of IOR. Mr Larsen also owned initially 49% of the IOR shares. That was diluted to 25% in 1997 and sold in 1999 to a company known as IOR UK. In 2000 those shares were in turn sold by IOR UK to North East. It is said therefore that Mr Larsen is no longer a direct shareholder in IOR but he remains a shareholder in Larsen Oil which in turn holds 35% in IOR. North East is said to be owned at all times by a named UK resident.
10. Back in July 2006, the Attorney General, following an approach by the Norwegian authorities who were already at that stage investigating Mr Larsen's tax affairs, served two notices on Volaw (one on 7th July and the other on 13th July, 2006,) requiring the production of documents under the Investigation of Fraud (Jersey) Law 1991 ("the 2006 Production Notices"). Volaw duly complied with these notices and the material in question was made available to the Norwegian police. However, that material was provided on terms that it would only be used for the purposes of criminal investigations and any subsequent criminal proceedings. It cannot therefore be used for any civil tax assessments or proceedings.
11. On 26th February, 2010, following the coming into force of the Tax Information Exchange Agreement ("TIEA") between Norway and Jersey on 7th October, 2009, the Norwegian Tax Authority made a request under the TIEA for assistance in relation to a tax investigation of Mr Larsen and his closely related companies. The Comptroller issued a formal notice to Volaw on 22nd April, 2010. There was then considerable correspondence and subsequent notices were issued. However, the final notice ("the Notice") was issued on 28th May, 2012. It was addressed to Volaw and related to information concerning Mr Larsen, who is named in the Notice as the taxpayer under investigation. It named four particular companies which he was said to have been associated with at the material time and these are Larsen Oil, IOR and North East together with another company which is not party to the present application. The terms of the Notice are described in full at para 36 of the Royal Court judgment. In effect the Notice required production of all the documents which had been produced to the Attorney General under the 2006 Production Notices and included all documents which Volaw held in connection inter alia with the three applicants.
12. Regulation 14 of the 2008 Regulations confers a right of appeal to the Royal Court against the issue of a notice by the Comptroller upon the taxpayer (which means the person whose liability to pay taxes is under examination or investigation in the relevant third country) and the person required to provide the information. Thus the right of appeal in this case lay with Mr Larsen and Volaw. It did not lie with any of the applicants. Volaw and Mr Larsen appealed against the Notice and this was the matter which came before the Royal Court as described earlier.
13. For the purposes of this hearing I have read the judgments of both the Royal Court and the Court of Appeal. They are extremely detailed and closely reasoned and it is impossible to do justice to them by way of a brief summary. Nevertheless for my purposes the decision of the Royal Court can be summarised as follows.
14. At para 41, the Royal Court (Commissioner Page) described the grounds of challenge by Volaw and Mr Larsen (the appellants) as follows:-
"41 The grounds of challenge were multiple, often overlapping and not always consistent (the appellants' written opening submissions alone running to 92 pages). But the principal complaints were these:
(i) that there is no power under the 2008 Regulations to require the production of information that pre-dates the entry into force of the Jersey/Norway TIEA on October 7th, 2009 (as the May 2012 notice does);
(ii) that the threshold condition for the application of reg. 3 is not satisfied because there are no reasonable grounds, as required by para. (1) of that regulation, for believing that Mr. Larsen may have failed to comply with the domestic law of Norway concerning income tax and that such failure has led or is likely to lead to serious prejudice to the proper assessment or collection of tax;
(iii) that the conditions of para. (2) of reg. 3 are not satisfied in that there are no grounds on which the Comptroller could reasonably be of the opinion that Volaw has documents and/or records which contain or may contain tax information relevant to (a) a liability to income tax to which Mr. Larsen may be subject and/or (b) the amount of any such liability;
(iv) that the way in which the request and the May 2012 notice are formulated is illegitimate in that they are insufficiently detailed and no more than a fishing expedition; the documents of which production is required go beyond those actually requested by Norway and, as a class, are too widely delineated; and
(v) that, where disclosure is sought in relation to a "criminal tax matter" there is no power to require the production of information other than for the purposes of a criminal investigation or prosecution, whereas the true and only purpose of the request was and is to enable the Tax Authority to make a civil assessment of Mr. Larsen's tax liability."
15. The Royal Court went on to consider each of these grounds in turn and found against the appellants on all of them. Thus it held:-
(i) Production of information that pre-dated the entry into force of the Jersey/Norway TIEA was legitimate where "criminal tax matters" were concerned.
(ii) Having described in some detail the nature of the concerns of the Norwegian Tax Authority and in particular the suspected involvement of the applicants in the key transaction which was under investigation by the Norwegian Tax Authority, the Court concluded at para 77:-
"77 The answer to that question [namely whether the criteria for the Comptroller to issue the Notice were satisfied] is that having regard, first, to what we have already said (that we consider that there are very good grounds for believing that the Tax Authority's suspicions are well founded and that Mr. Larsen's interests in some at least of the companies involved in the transactions in question were more extensive or different from what he would have the outside world believe) and, secondly, to the evidence of Mr. Drangsholt and Dr. Matre, [experts on Norwegian law] we are satisfied that there are indeed reasonable grounds for believing that Mr. Larsen may have failed to comply with Norwegian domestic income tax law and that such failure has led, or is likely to lead, to serious prejudice to the proper assessment or collection of tax. ..."
(iii) The relevant grounds of Regulation 3 were satisfied in that there were reasonable grounds for believing that the documents may contain information relevant to the matters described above.
(iv) The scope of the Notice was not excessive in relation to the request and was sufficiently detailed.
(v) Information obtained in relation to "criminal tax matters" as defined in Article 3(1)(f) of the TIEA - i.e. "tax matters involving intentional conduct whether before or after the entry into force of the Agreement which is liable to prosecution under the criminal law of the requesting party" - could be used for the purposes of a civil assessment of the taxpayer's liability to tax as well as for a criminal investigation or prosecution.
16. In summary, the Royal Court dismissed the appeal. However, on 31st May, 2013, it granted a stay of the order for production of the information pending resolution of any appeal. The Court required that Volaw lodge all the relevant documents with its advocates to hold to the order of the Court. That remains the position at present.
17. Mr Larsen and Volaw appealed against the decision of the Royal Court. This came before the Court of Appeal in September and the reasons for the judgment dismissing the appeal were delivered on 28th November, 2013.
18. The matters argued before the Court of Appeal were summarised at para 103 of the judgment as follows:-
"103. The principal complaints in the grounds of appeal before us were these:-
(i) whether the fact that the documents sought pre-date the entry into force of the J/N TIEA [as in fact they do], means that they fall outside the terms of the 2008 Regulations ("the retrospectivity issue");
(ii) whether the Comptroller should have declined the Request on the basis that the Norwegian Notices discriminated against Jersey companies ("the discrimination issue");
(iii) whether the threshold criteria specified by the 2008 Regulations for the lawful exercise of the Comptroller's powers to require the production of information by a person other than the named taxpayer are satisfied ("the reasonable grounds issue");
(iv) whether the Appellants could foresee when they created the documents and records sought by the Notice that they would be vulnerable to requisition under a law which post-dated their creation, and, if not, whether this breached their rights under Article 8 of the European Convention on Human Rights ("ECHR") ("the foreseeability issue");
(v) whether the Notice is insufficiently detailed and constitutes no more than a fishing expedition (''the insufficient detail issue'');
(vi) whether the documents of which production is required go beyond those actually requested by the Competent Authority (''the over breadth issue'');
(vii) whether, in any event, the documents are too widely delineated ("the proportionality issue");
(viii) whether the true purpose of the Request was and is to enable the NTA to make a civil assessment of Mr Larsen's tax liability (''the improper purpose issue'');
(ix) whether where disclosure is sought in relation to a "criminal tax matter" there is any power in the competent authority to use information for any purpose, other than for the purposes of a criminal investigation or prosecution ("the use issue")."
19. The Court of Appeal went on to consider each of these issues in considerable detail and rejected them all. It therefore dismissed the appeal. In considering issues (iv) and (vii), it specifically had regard to Article 8 ECHR.
20. On 7th December, 2013, the Court of Appeal refused leave to appeal to the Privy Council. Mr Larsen and Volaw subsequently applied for special leave to appeal but this was rejected by the Privy Council on 21st May, 2014, as previously stated in paragraph 2.
21. In October 2013, Mr Larsen was convicted of tax related crimes which, I was informed, included his involvement in the transactions which are the subject of the request by the Norwegian Tax Authority to the Comptroller in this case. Mr Larsen is appealing against that conviction. I was told that the appeal is expected to be heard in April 2015.
22. It is against that background that the applicants now seek leave to apply for judicial review to quash the decision of the Comptroller to issue the Notice. I would summarise the grounds upon which they seek relief as set out in their Notice of Application as follows:-
(i) The 2008 Regulations are partial and unequal in their operation as between different classes of persons affected by the exercise of the power conferred upon the Comptroller. This is because the interest of the applicants is as great if not greater than that of Volaw and Mr Larsen. The documents in question are held by Volaw on their behalf and belong to them. Yet the Regulations confer no right of appeal upon the applicants who own the documents.
(ii) Relying upon the well-known observations of Lord Mustill in R v Home Secretary ex P Doody  1 AC 531 at 560 F-G the applicants submit that fairness dictates that the Comptroller should have provided the applicants with copies of the Norwegian Tax Authority's request and given the applicants an opportunity to comment before any decision was made to issue the Notice. The applicants had an interest in the issue of the Notice because they were expressly referred to in it and copies of documents which belonged to them were required to be produced under it. Indeed the Court of Appeal in the present case (see paras 31 and 54) indicated that the Comptroller should give an opportunity for representations to be made prior to service of a notice. Although such a failure in relation to those with a right of appeal might be cured by any such appeal, that did not apply to those (such as the applicants) who did not have a right of appeal.
(iii) The Comptroller failed to make sufficient enquiries to understand what was being requested and why it was being requested, as he should have done (see Secretary of State for Education and Science v Thameside Metropolitan Borough Council  AC 101 4 at 1065B and MH Investments and JA Investments v Cayman Islands Tax Information Authority 16 ITLR 274). It was likely, from the terms of the request, that the Norwegian Tax Authority was investigating potential Norwegian tax liabilities of the applicants as well as Mr Larsen. The Comptroller should therefore have clarified the apparent discrepancy between some of the statements in the request and the assertion that the taxpayer under investigation was Mr Larsen. If proper enquiry had been made and if it had become apparent that each of the applicants was a taxpayer for the purpose of the 2008 Regulations, they would have enjoyed a right of appeal under those Regulations.
(iv) The Comptroller was under a duty to take account of all relevant considerations and one of these was the provisions of the Data Protection (Jersey) Law 2005 ("the Data Protection Law"). The Notice required production of personal data relating to inter alia employees, officers and shareholders of the companies and the Comptroller reached his decision without consideration of the Data Protection Law; nor was any consideration given to the provisions of that Law by the Royal Court or the Court of Appeal.
(v) The absence of a right of appeal on the part of the applicants was a breach of their rights under Article 6 of the ECHR, which secures to everyone the right to have a claim relating to his civil rights and obligations (including arguable civil rights and obligations) brought before a court. The applicants had a contractual right to the confidentiality of their documents under the terms by which Volaw provided its services and a right that personal data should be processed in accordance with the requirements of Data Protection legislation. In the absence of a right of appeal to the courts against the issue of the Notice, the applicants had been deprived of the ability to enforce their civil rights and this amounted to a breach of Article 6. The availability of judicial review did not cure the breach of Article 6 as it would not allow a proper examination of the underlying factual basis of the decision.
(vi) The Notice also constituted a breach of the applicants' rights under Article 8 of the ECHR. Although interference with such rights is permitted in certain circumstances, such interference must be in accordance with law and necessary in democratic society. That was not the case in the present circumstances. First, the interference was not in accordance with law as the 2008 Regulations did not meet the requirements of foreseeability and accessibility because they were enacted after the documents subject to the Notice were created. The retrospective effect of Regulation 3 was unclear and unforeseeable. Secondly, the interference was not in accordance with law as the 2008 Regulations provided inadequate protection against arbitrary interference with the applicants' rights because, following the decision of the Court of Appeal, the content of the request was treated as not being open to challenge, so there was no remedy in the event that the request contained false statements; and in any event there was no right of appeal on the part of the appellants. Thirdly, where Article 8 is engaged, a relevant decision making process must be such as to allow the views and interests of those who would be adversely affected to be made known and taken into account. That was not so in the present case as the interference was made without reference to the applicants and without giving them an opportunity to make representations. Finally, the interference must be proportionate and that was not so in the present case because the documents required to be provided were of a much wider category and covered a much longer time period that was necessary to investigate Mr Larsen's tax liability.
(vii) There was discrimination contrary to Article 14 taken in conjunction with Article 6 because the applicants were treated differently from Mr Larsen in that they were refused a right of appeal under the 2008 Regulations. This was an unjustifiable difference in treatment particularly where the documents in question belonged to the applicants.
(viii) For the same reason, there was discrimination under Article 14 in relation to Article 8 because of the lack of a right of appeal.
23. In oral argument, Advocate Hoy developed a further point. He submitted that the role of the Comptroller in relation to a TIEA was two pronged. First, the Comptroller had to decide whether to issue a notice requiring the production of documents. Secondly, upon receipt of the documents, it was his duty to go through them in order to decide whether they were relevant to the investigations of the requesting tax authority and should therefore be passed over. It followed, he said, that the process was not yet complete because the Comptroller had not yet undertaken this second stage. I had some difficulty in following his argument but, as best I could understand, it was to the effect that, because the second stage had not yet been undertaken, I should take this into account in assessing whether delay should be a bar to the application for leave.
24. The question which immediately arises in relation to this case is whether the application for leave is too late. This was also the point taken by Advocate Kelleher and I turn to consider this aspect first.
25. RCR 16/3(1) provides as follows:-
"(1) Subject to paragraphs (2) and (3), an application for leave to apply for judicial review must be made promptly and in any event not later than 3 months from the date when grounds for the application first arose."
26. The need to act promptly is emphasised by paragraph (2) of Rule 16/3 which provides that even where an application is made within the three month period, the Bailiff may refuse to grant leave if satisfied that the application is not sufficiently prompt and that, if relief were granted, it would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration.
27. However, there is an ability to allow an application to be made after the period of three months and this is contained in paragraph (3) of Rule 16/3 which provides as follows:-
"(3) An application may be made after the end of the period of 3 months if the Bailiff is satisfied -
(a) that there is good reason for the application not having been made within that period; and
(b) that if the relief sought were granted, on an application made at this stage, it would not be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration."
28. The Notice was issued on 28th May, 2012, and Volaw and Mr Larsen lodged their notices of appeal against the Notice on 18th June, 2012. It follows that this application (dated 6th June, 2014,) is made over two years after the issue of the Notice.
29. Mr Healey's affidavit sworn in support of the application does not list the names of the directors of the applicants but does state that Volaw has provided directors and corporate services to all three applicants at all material times. He himself swore an affidavit in support of the appeals of Volaw and Mr Larsen.
30. All that Mr Healey, on behalf of the applicants, has to say about the delay in bringing this application is at paragraphs 52 and 53 of his affidavit which state as follows:-
"52. The Companies did not appeal against the 28 May 2012 Notice as they are not the named taxpayer in the Notice and therefore had no right of appeal under the Regulations.
53. The Companies were, however, aware that the appeal was being brought by [Mr Larsen] and Volaw and it was hoped that their appeals would be successful. It would have been premature and wasteful to bring these judicial review proceedings while there was a chance that such appeals would be successful."
31. Advocate Hoy submits that the applicants had good reason for waiting to issue the current proceedings because it would have been premature to do so before the appeals of Volaw and Mr Larsen were determined. Had those appeals been successful, there would have been no need for the judicial review proceedings. He referred me to R v CCE ex p Greenwich Property Limited  STC 618 at  where Collins J said this:-
" On 23 September 1998, the Commissioners of Customs and Excise decided to uphold an assessment that Greenwich Property Limited (Greenwich Property) was obliged to account for value added tax (VAT) in a total sum of about £210,000. The assessment arose because the Commissioners decided that Greenwich Property was not entitled to benefit from a concession which it believed meant that it was able to treat a supply as zero-rated. The delay in seeking judicial review of that assessment is because Greenwich Property initially appealed to a value added tax tribunal. But on 20 July 2000 the tribunal ... decided that there was no right of appeal since Greenwich Property's case depended on an extra-statutory concession and (see para 20 of the decision) it was:-
'not ... within the jurisdiction of this Tribunal, which is appellate in nature, to review the Commissioners' application of the [concession] any more than it is within our jurisdiction to review the Commissioners' 'care and management' powers, such as their conferring and withdrawing the benefits of extra-statutory concessions'.
On 15 August 2000 this application for judicial review was made. On 18 September 2000 Richards J granted permission to proceed notwithstanding the delay since he was satisfied that there was a good reason for it. Mr McKay, who appeared before me on behalf of the Commissioners, indicated that he did not propose to take any point based on delay."
32. It does not seem to me that that case assists Advocate Hoy. In the first place the matter proceeded by concession with no point being taken by the respondents. Secondly, the reason for the delay was that it had been thought that there was a right of appeal whereas it transpired that there was not. Accordingly, judicial review was the only method of seeking redress and the delay in doing so had been caused by a misunderstanding by the applicant as to the right of appeal. That is very different from the present case where there was no misunderstanding by the applicants of the legal position as to appeal. They simply chose to wait.
33. Advocate Hoy also referred me to R (Asif Javed) v Secretary of State for the Home Department  QB 129. In that case the applicants challenged the validity of an Order made by the Secretary of State whereby he included Pakistan in a list of designated countries (where there could be a statutory expedited asylum procedure which deprived persons of a right of appeal from the decisions of special adjudicators) on the ground that there was in general no serious risk of persecution. The applicants contended that the treatment of women in Pakistan rendered this an irrational assertion and the Court agreed. At para 78 of the judgment, the Court referred to the delay in bringing the application for judicial review but pointed out that this failure was 'technical' because the applicants had sensibly first pursued appeals to special adjudicators. It was decided in the circumstances that the delay did not afford a reason for refusing the applicants the relief to which they would otherwise be entitled. Again, I do not consider that this case assists the applicants. The applicants in Asif Javed did not sit back and do nothing. They sought to appeal the decision of which they complained.
34. In my judgment there was no good reason for the application in this case not having been brought within the three month period. Volaw and Mr Larsen were fully aware of the contents of the Notice and the knowledge on the part of Volaw can be imputed to the applicants as they were providing the directors of the applicants. Indeed the applicants admit that they were aware of the Notice and of the appeals and deliberately decided not to bring judicial review proceedings whilst the appeals were continuing.
35. I do not consider that this was a satisfactory way of proceeding. Although Advocate Hoy is right to state that the applicants are separate from Volaw and from Mr Larsen, nevertheless it is hard to see that they would be likely to have many additional or different arguments to bring as to the validity of the Notice. The Notice was issued as long ago as 28th May, 2012, and the appeal process has only finally been determined by the rejection of leave to appeal by the Privy Council in May 2014. The effect of granting leave at this stage would be for the whole process to start again. There will be a hearing before the Royal Court followed, quite possibly, by an appeal to the Court of Appeal and an possibly an application for leave to appeal to the Privy Council. Although the process may not take the two years that were taken in respect of the appeal, one can certainly envisage such a process taking a further year.
36. The whole purpose of the obligation to act promptly and of the three month deadline in applications for judicial review is that there is a public interest in the validity of actions by public authorities being ascertained promptly so that everyone knows where they stand; see for example the observation of Lord Hope of Craighead in R (Burkett) v Hammersmith and Fulham London Borough Council  3 All ER 97 at para . In the area of TIEAs, there is a public interest in the validity of a Notice being challenged and ruled upon within a reasonable delay. The information will be sought by the requesting country in order to determine whether there has been a breach of its tax laws so that further tax is payable. It is clearly important that this is determined as soon as reasonably practicable. There is similarly a public interest for Jersey in rendering assistance reasonably promptly if the request is properly made in accordance with the relevant TIEA.
37. If the applicants really felt that they had some interest separate from that of Volaw and Mr Larsen which required them to challenge the Notice, they should have brought their application for judicial review within the three month period and their application could have been heard at the same time as the appeals. This would have meant that all arguments on behalf of any party concerned with the correctness of the Notice could have been heard at the same time and appeals to the Court of Appeal and Privy Council could also have dealt with all the issues. As it is, what is proposed now is that after exhaustive litigation in which the validity of the Notices has been thoroughly considered and ruled upon, the applicants wish to start the process all over again with consequent further delay.
38. If there were some extremely strong indication of illegality, procedural impropriety or irrationality which was apparent from the grounds relied upon by the applicants, it is conceivable that it might be proper to grant leave notwithstanding the long period of delay. But there is nothing in the application which convinces me that any of the points relied upon by the applicants has such a character.
39. The majority of the grounds relied upon by the applicants relate to the fact that the applicants had no right of appeal under the 2008 Regulations and were therefore, they submit, disadvantaged. Thus (referring to the grounds of appeal as summarised at para 22 above) ground (i) contends that the 2008 Regulations are partial and unequal in their operation because the applicants have no right of appeal whereas Volaw and Mr Larsen do; ground (ii) relies upon the lack of consultation by the Comptroller with the applicants before issuing the Notice; ground (iii) is to similar effect in that it is said the procedure was unfair because the applicants had no right of appeal and were not consulted; ground (v) contends that the applicants' rights under Article 6 ECHR were breached because they did not have a right of access to a court for determination of their civil rights by reason of the lack of any right of appeal, judicial review being, it was submitted, insufficient for the purpose; and finally grounds (vii) and (viii) elaborated the procedural criticisms by reference to Article 14 ECHR to the effect that the applicants were discriminated against in relation to their rights under Article 6 and Article 8 ECHR because, unlike Volaw and Mr Larsen, they had no right of appeal.
40. That leaves ground (iv) which complains that, if the Comptroller had made proper enquiry of the Norwegian Tax Authority, he might have established (by reference to certain comments in the letter of request that the Tax Authority was seeking to clarify whether the foreign companies were liable to pay tax in Norway) that the applicants were taxpayers for the purposes of the 2008 Regulations with the consequence that they would have enjoyed a right of appeal under those Regulations.
41. In my judgment, there is something artificial about the suggestion that the applicants have some separate interest which merits further investigation at this late stage bearing in mind that Volaw provides the directors of the applicants, that Mr Larsen is a direct or indirect shareholder in at least two of them (even on his version) and it was Volaw and Mr Larsen who conducted the previous litigation all the way up to the Privy Council. Volaw has no interest of its own as it is merely the company administrator for the applicants. Volaw must be taken to have been acting on behalf of and in the interests of the applicants in challenging the Notice.
42. The real issue is whether the issue of the Notice by the Comptroller was in accordance with the TIEA and the 2008 Regulations and was lawful. That issue has been exhaustively considered by the Royal Court and the Court of Appeal, with the Privy Council refusing leave to appeal on the ground that the application for leave did not raise an arguable point of law. The only grounds relied upon by the applicants which go to the merits of the Comptroller's decision are grounds (iv) and (vi). Ground (vi) was thoroughly considered by the Court of Appeal and I do not see anything in the material before me to suggest that it is seriously arguable that the decision on that aspect was wrong. As to (iv), it is correct that this point was not taken before the Royal Court or the Court of Appeal but it was included in the application for leave to appeal to the Privy Council. Notwithstanding that, the Privy Council declined leave on the grounds that the application did not raise an arguable point of law. The Notice of Application does not explain why consideration of the provisions of the Data Protection Law would or might have led to a different decision on the part of the Comptroller. In my judgment, there is insufficient in the material before me to conclude that the data protection point is seriously arguable.
43. That leaves the various procedural arguments which ultimately all derive from the complaint that the 2008 Regulations did not provide a right of appeal for the applicants notwithstanding that it was their documents which were the subject of the Notice. I do not accept that these arguments justify the granting of leave at this late stage for the following reasons:-
(i) The appellants could and should have brought an application for judicial review right at the outset. Such an application could have been heard at the same time as or immediately following the hearing of the appeals. All the matters relating to the issue of the Notice could therefore have been considered and dealt with at the same time, with any subsequent appeal to the Court of Appeal also dealing with all matters. The wish to see if the appeals were successful before launching judicial review proceedings was not, in my judgment, an adequate reason for delaying so long.
(ii) As an alternative the applicants could have sought leave to be joined in the appeals of Volaw and Mr Larsen under Rule 6/36 which enables the Court to add as a party any person '... whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon ...'.
(iii) Volaw, whose knowledge is to be attributed to the applicants (for the reasons previously stated), became aware of the terms of the letter of request before issuing its appeal. If the applicants really believed that they should have been treated as a 'taxpayer' for the purposes of the request and the 2008 Regulations (so that they could have appealed), they should have raised this point and sought to appeal on the basis that they were taxpayers once they became aware of the terms of the letter of request.
(iv) Whilst I accept that judicial review is not the same as an appeal, I do not accept that proceeding by way of judicial review would have placed the applicants at such a material disadvantage as to infringe their Article 6 rights. As the Court of Appeal made clear, the nature of any appeal is limited and is confined to considering whether, on the basis of the information contained in the letter of request (as supplemented by any further enquiries) the Comptroller has reasonable grounds for believing that a taxpayer may have failed to comply or may fail to comply with a domestic law of a third country concerning tax, and that any such failure has led, or is likely to lead to serious prejudice to the proper assessment or collection of tax. Judicial review would be concerned with essentially the same issue and would, in my judgment, provide a perfectly adequate remedy if the Comptroller did not have proper grounds for reaching his conclusion.
(v) I do not consider that Advocate Hoy's argument about a two stage process assists. In the first place, I do not consider that there is such a two stage process. There is nothing to that effect in the 2008 Regulations and the Comptroller is not realistically in a position to decide which documents are or are not relevant in relation to an investigation which he is not carrying out but is being carried out by an overseas tax authority. Secondly, even if there is, the fact remains that this is a challenge to the issue of the Notice and time therefore runs from that date. I do not agree with Advocate Hoy that there is an analogy to be drawn with the case of Burkett where the House of Lords held that the time for challenging the grant of planning permission ran from the actual grant of permission rather than from a preliminary resolution authorising a conditional grant of permission.
44. The Notice was issued as long ago as May 2012. The applicants have known since then that their documents are included in the Notice. The validity of the Notice has been the subject of detailed consideration by the Royal Court and the Court of Appeal with the Privy Council refusing leave to appeal on the basis that the application to appeal disclosed no arguable point of law. There is an important public interest in the Island assisting proper requests for assistance under a TIEA in a timely fashion subject of course to any challenge properly brought within the timescales envisaged in the legislation or Rules of Court. I consider that there would be prejudice both to the Norwegian Tax Authority and to the good administration of the Norwegian TIEA by Jersey if this matter were allowed to be reopened at such a late stage.
45. In my judgment, the time has come for this long outstanding request of the Norwegian Tax Authority to be complied with and I am not prepared to countenance further delay when this application should have been brought within the three month period laid down by RCR 16/3(1). I find there to be no good reason for the long delay and I therefore refuse leave to apply for judicial review.
Taxation (Exchange of Information with Third Countries)(Jersey) Regulations 2008.
Volaw Trust and Corporate Services Limited and Larsen-v-Comptorller of Taxes  (2) JLR 40.
Royal Court Rules.
Investigation of Fraud (Jersey) Law 1991.
Europeran Court of Human Rights 2000.
MH Investments and JA Investments v Cayman Islands Tax Information Authority 16 ITLR 274.
Data Protection (Jersey) Law 2005.