Leave for Judicial Review
Imperium Trustees (Jersey) Limited v Jersey Competent Authority [2024] JCA 014
The Applicant successfully obtained leave for the judicial review of the decision of the Respondent to issue a tax information notice pursuant to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 and the Taxation (Implementation) (Convention on Mutual Administrative Assistance in Tax Matters) (Jersey) Regulations 2014 but was prevented from obtaining an order for costs by International Cooperation (Protection from Liability) (Jersey) Law 2018, which protected the Respondent when acting in such matters from liability in costs save in the case of fraud. In Imperium Trustees (Jersey) Limited v Jersey Competent Authority [2024] JCA 014 the Court of Appeal declined to read down the 2018 Law but declared it to be incompatible with Article 6 Convention rights to a fair trial. The Applicant sought (1) leave to amend its grounds of judicial review and (2) permission to rely on the additional ground in judicial review proceedings.
The new ground was to the effect that, because the costs rule under the 2018 Law was a restriction on the right of access to the court, it also rendered the whole mechanism for challenging a decision of the Respondent to issue such a Notice as being in breach of Articles 6 and also Article 8 (private and family life) Convention rights.
Held:
(1) The threshold for leave for judicial review was referred to in the Court of Appeal’s substantive judgment on leave for judicial review in Imperium Trustees (Jersey) Limited v Jersey Competent Authority [2023] 1 JLR 229 at paragraph 105 and was recently explored the test for leave in Buckley v Minister for Treasury and Resources [2023] JRC 209: “109 . . .a judge has to be satisfied that there is an issue that requires a full hearing with the costs that that necessarily involves. In particular, where what is alleged is irrationality or procedural impropriety, the question for the judge is whether the issue raised is one that requires determination by the Jurats. In other words, does the issue raised based on all the material before the judge give rise to competing arguments, either of which might persuade the Jurats (or a judge on a pure point of law) with the benefit of all the evidence and full argument. If so, then leave should be granted. If, on the other hand, the arguments raised are fanciful or improbable then leave should be refused.”
(2) The present application required the Royal Court to depart from its previous decision in Imperium Trustees (Jersey) Limited v Jersey Competent Authority [2023] 1 JLR 229, in which it was held that judicial review is an appropriate remedy compatible with Article 6 Convention rights but which predated the enactment of the 2018 Law.
(3) As a result of the Court of Appeal’s judgment on the costs rule, the Applicant had met the threshold for leave to judicial review being granted because it was arguable that an applicant’s inability to recover costs renders the whole of the scheme to challenge Notices issued under the 2008 and 2014 Regulations invalid, although at this stage that was only an argument. The Respondent was permitted to file further evidence, if the Respondent wished to do so, in relation to the nature of requests made under the 2008 and 2014 Regulations to enable the Court to assess the likely impact of the 2018 Law on individuals bringing a challenge under the 2008 and 2014 Regulations.
Leave was accordingly granted the Applicant leave to amend its Schedule 5 Notice and its grounds of judicial review and leave to bring judicial review proceedings in respect of the additional ground, with it being heard at the same time as the grounds in respect of which the Court of Appeal has already given leave in the Court of Appeal’s substantive judgment.
Bridgeford A, WDJL 8 – 14 April 2024