Judicial review - Regulation 14 decision
Before : |
Sir Michael Birt, Commissioner |
Between |
Triton Administration (Jersey) Limited |
Applicant |
And |
Office of the Comptroller of Revenue |
Respondent |
Between |
Company 1 |
First Plaintiff |
Advocate M. W. Cook for the Applicant.
Advocate G. G. P. White and Advocate S. Meiklejohn for the Respondent.
EX TEMPORE judgment
the COMMISSIONER:
1. The general principle is that where there is an application for judicial review, the Jersey Competent Authority ("JCA") must not actually send off the information produced pursuant to a Notice to the third country until the conclusion of the proceedings. However, under Regulation 14 (3)(b)(iii) there is provision for the JCA to release the information earlier if "permitted to do so by the Royal Court".
2. Advocate Meiklejohn, on behalf of the JCA, has applied that I make an order to that effect on this occasion because of the time critical nature in Sweden, that I think I touched upon in my ex-tempore judgment. The position is that the ability of the Swedish Tax Authority ("STA") to raise an assessment in respect of 2018 will apparently expire on 31 December 2024 so it needs, it says, to have the information before then so that it can consider the information and make an assessment in respect of 2018, the time period in respect of 2017 having already expired.
3. Advocate Cook submits that I should not make such an order for two reasons. The first is that there is, for a person served with a Notice, a right to apply for leave to appeal to the Judicial Committee of the Privy Council ("JCPC" ) within 14 days of the decision, the decision having been given today. Granting the application would, he submits, render any such appeal nugatory. I have to say that I regard the prospect of the JCPC granting leave as being remote, but that is a matter for the JCPC and not for me. Nevertheless, the general approach of the JCPC is well established, namely that it will only give leave where a matter raises a point of law of general public importance which ought to be considered at this time.
4. For my part, I cannot see that there is any point of law of public importance in this case. The law is well established, and this is simply a case of the court applying that well established law to the facts of this case. That is not the sort of case where the JCPC will usually grant leave. So, I proceed on the basis that, in my opinion, which is of course not determinative, it is a matter for the JCPC, but in my opinion the prospect of the JCPC granting leave to appeal is remote. Nevertheless, it is a right that Triton has.
5. The second ground relied upon by Advocate Cook for opposing this application under Regulation 14 is that there is an Article 6 ground to be argued, and the documentation should not be released before then because that will render nugatory any successful outcome of the Article 6 ground. He makes the point that the argument made by the various applicants in the Article 6 ground is that the whole process of challenging a Notice is contrary to Article 6 ECHR because of the inability of a successful applicant to recover costs from the JCA.
6. However, I am persuaded by the point Advocate Meiklejohn makes. Whether there has been a breach of a European Convention human right is very fact specific. My understanding is that the court always looks at the individual facts in order to say whether the convention rights of the individual applicant have in fact been infringed. So, in this case, it seems to me, that any court would have to consider whether the Article 6 rights of Triton have in fact been infringed.
7. Now in this case, I have rejected the judicial review claim and there is therefore no question of any costs order possibly being made in favour of Triton. Similarly Triton has in fact not been restricted in any way in its access to this court. It has put forward detailed arguments and has been represented by a firm of advocates and by Advocate Cook before this court. So again, I regard the prospects of it in fact being found on the particular facts of this case, that Triton's Article 6 rights have been infringed as being remote.
8. So, on that basis, we have a remote possibility of an appeal to the JCPC and a remote possibility of the release of the documents infringing the Article 6 rights of Triton. In my view this has to be balanced against the fact that Jersey is a party to the Convention on Mutual Assistance and it is in the public interest that, consistent with the rule of law, the Jersey authorities comply with the Island's obligations under the Convention.
9. This court has concluded that there is no reason not to comply with this obligation and that the judicial review application is not well founded. Balancing the two matters relied upon by Advocate Cook and the serious effects of not releasing the information virtually immediately, I think the balance comes down in favour of releasing the information, so that it can be used and Sweden's application under the Convention will not be in vain, which otherwise it would be.
10. Accordingly, I am going to grant an order under Regulation 14(3)(b)(iii). However, as Advocate Cook submitted, it seems likely an appeal against this order may lie to the Court of Appeal ("CA") rather than the JCPC because this will not be an appeal against the judicial review decision; it will be an appeal against a form of interlocutory order in relation to the proceedings. It is not for me to decide whether that is correct or not, but I think it is right to allow sufficient time for an urgent application to made to a single judge of the CA to see if such judge thinks that my decision to release the information now should be suspended or overturned. Accordingly, I make the order permitting the release, but I suspend that order from taking effect until midday on Friday 13 December 2024.
11. We will do everything possible to get my ex-tempore judgment typed up but counsel have had the opportunity of taking a note and I see no reason why Triton, if it wishes and is so advised, cannot make an urgent application this afternoon to be filed with the CA, and administrative arrangements can be made for a single judge to look at it before midday on Friday and decide whether to allow it, dismiss it or grant a short extension if the judge needs further time. That will be a matter for the parties to address before the single judge.
12. So, in short I make the order under Regulation 14 as requested by the JCA but it is not to take effect until midday on Friday 13 December 2024.
No Authorities