St Matthews (West) Ltd, R (On the Application Of) v HM Treasury
2014
ADMINISTRATIVE COURT
UK
CORAM
- MRS JUSTICE ANDREWS
Areas of Law
- Civil Procedure
- Constitutional Law
- Tax Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The claimant sought to cross-examine the defendant's witnesses in a judicial review concerning retrospective tax legislation. The court, referencing relevant legal precedents, denied the application for cross-examination, asserting it was not necessary for a fair determination. The court did allow the claimant to raise arguments under Article 6 of the European Convention on Human Rights. Key legal principles highlighted include the exceptional nature of cross-examination in judicial reviews and the court's discretion to permit it if needed for justice.
J U D G M E N T (As approved)
1. MRS JUSTICE ANDREWS: This is an application by the claimant to cross-examine one or more of the defendant's witnesses brought in the context, not just of a judicial review claim, but a rolled-up hearing for permission to bring judicial review with the judicial review to follow. I have been shown by the defendant's counsel, Mr Beal QC, specific authorities from the Court of Appeal which make it clear that the course of allowing cross-examination in these circumstances, is an exceptional one.
2. The first case is Bubb v London Borough of Wandsworth [2011] EWCA Civ 1285 , a decision of the Court of Appeal of 9 November 2011 on appeal from HHJ Ellis. It was a housing case. Lord Neuberger made it very clear in paragraphs 24 to 26 that in the overwhelming majority of judicial review cases, even where the issue was whether a finding of fact should be quashed on one or more of the grounds identified by Lord Bingham, there should be no question of live witnesses.
3. The other case to which I was taken, a decision of Stanley Burnton LJ, Bancoult v Secretary of State for the Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin) , was one of those exceptional cases in which cross-examination was allowed. As a result of some documents that had been passed to a newspaper by WikiLeaks, there were challenges to a decision that had been made by the Foreign and Commonwealth Office. There was an evidential gap because there were no notes to be disclosed of the relevant meeting at which the decision was taken. In those circumstances, cross-examination was granted. Stanley Burnton LJ said this in paragraph 14:
"I acknowledge that cross examination is exceptional in judicial review proceedings. This is largely because the primary facts are often not in dispute, or at least those asserted by the defendant public authority are undisputed. In addition, the defendant public authority may normally (but not invariably) be relied upon to disclose its relevant documents, thus fulfilling its duty of candour in relation to its documents. However, the Court retains a discretion to order or to permit cross examination, and it should do so if cross examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly."
4. I have to ask myself whether cross-examination is necessary to determine this claim fairly and justly. The challenge in this case is to the legitimacy of retrospective legislation that t