BN66 - Round 2 (Court of Appeal)

[smalldog]

without meaning to sound sarcastic as im not being, what are the COA judges doing for 3 months? Whats the process, do they review and research all associated documentary evidence, do they have meetings with parties who may have a view on the rights and wrongs?? what actually happens during this period?

[Emigre]

without meaning to sound sarcastic as im not being, what are the COA judges doing for 3 months? Whats the process, do they review and research all associated documentary evidence, do they have meetings with parties who may have a view on the rights and wrongs?? what actually happens during this period?

Being a higher court CoA judgements set legally binding precedent for the lower courts. It is therefore their obligation to ensure that their judgement is in no way contradictory to existing precedents and also to ensure that their judgement adds value to the relevant list of precedents in a clear and workable way so that it can add clarity (that word again) to the law.

Our case is definitely not an open and shut case. If it was we would have been declined the right of Appeal to the CoA in the first place. If the case comes in as a 3-0 loss and the content of the individual decisions is very one-sided it will be as good as enshrining acceptance of aggressive retrospection into the UK tax code. That is clearly unacceptable in a civilised society. We are still civilised are we?

However, if their judgement falls towards our cause the wording of their judgement could be such that they effectively outlaw retrospective tax raids for good. There are some circumstances where retrospection could be appropriate under a strict set of rules. The task that our case has set them is to recognise the extremes and to define the boundaries of acceptable and unacceptable retrospection in a way that is clear for all to see and understand and also in a way that does not give rise to unexpected consequences, especially a plethora of additional legal cases.

There is s broad spectrum here and ultimately they need to determine, in their opinion, where our situation exists within it. In any event that is a lot of research, much discussion and debate, and some very deliberately worded decisions. We know what we want them to say but I'm not sure from an impartial perspective that many of us would actually want to be in their shoes.

Emigre

[paulsc]

Being a higher court CoA judgements set legally binding precedent for the lower courts. It is therefore their obligation to ensure that their judgement is in no way contradictory to existing precedents and also to ensure that their judgement adds value to the relevant list of precedents in a clear and workable way so that it can add clarity (that word again) to the law.

Our case is definitely not an open and shut case. If it was we would have been declined the right of Appeal to the CoA in the first place. If the case comes in as a 3-0 loss and the content of the individual decisions is very one-sided it will be as good as enshrining acceptance of aggressive retrospection into the UK tax code. That is clearly unacceptable in a civilised society. We are still civilised are we?

However, if their judgement falls towards our cause the wording of their judgement could be such that they effectively outlaw retrospective tax raids for good. There are some circumstances where retrospection could be appropriate under a strict set of rules. The task that our case has set them is to recognise the extremes and to define the boundaries of acceptable and unacceptable retrospection in a way that is clear for all to see and understand and also in a way that does not give rise to unexpected consequences, especially a plethora of additional legal cases.

There is s broad spectrum here and ultimately they need to determine, in their opinion, where our situation exists within it. In any event that is a lot of research, much discussion and debate, and some very deliberately worded decisions. We know what we want them to say but I'm not sure from an impartial perspective that many of us would actually want to be in their shoes.

Emigre

Thank you for that clear explanation of why it is taking so long Emigre, it is something that has been worrying me. I am now somewhat mollified.

[DonkeyRhubarb]

Thank you for that clear explanation of why it is taking so long Emigre, it is something that has been worrying me. I am now somewhat mollified.

If you watched the programme about the Supreme Court, their judgments normally take 3-4 months, and this is the highest court in the land often with 9 judges on the bench.

So 3 months is exceptional for the Court of Appeal. Most of their judgments are handed down in 4-6 weeks.

As I've said before, one of the reasons it will take longer is that they're having to decide 2 entirely different cases, our's and PwC's.

But there is no doubt that this is a complex and difficult area. I've read loads of stuff on article 1 protocol 1 ECHR and it's as woolly as hell.

Ultimately I think it comes down to whether the judges accept that the Government have clearly overstepped the mark in this case.

The Effect of the Human Rights Act 1998 on Taxation Policy and Administration - [2004] eJTR 8; (2004) 2 eJournal of Tax Research 155

...just like the Strasbourg Court, any domestic court will be reluctant to arbitrate on matters of tax policy and, in finding no breach, will formulate their decision on the basis of the wide margin of appreciation afforded to the Government, and argue that the measure is in proportion to the needs of a democratic society. Only in very exceptional cases will the courts be willing to hold that a measure is not proportionate."

[smalldog]

thats all useful stuff but still doesnt answer my question.

What will they be doing on a day to day basis, trawling through lots of documents in chambers, meeting with people who have an opinion such as CIOT, discussing the issues with government members, will the three of them be sitting down over a brandy to discuss etc, anyone know what they actually do during this period??

I thought the documentary was fascinating, I assume Singh was the chap with the white turban who didnt say a huge amount?

[OnYourBikeGB]

Only in very exceptional cases will the courts be willing to hold that a measure is not proportionate."[/I]

I find that last sentence to be both a bit depressing, but also possibly cause for a bit of optimism. On first reading, it would imply that we are have a very difficult case to prove, and that on balance the COA starts from a position of favouring the Government. But again we come back to the length of time. I agree, it's obviously going to take longer due to the fact that there is two arguments, but the longer we wait, the more it implies that the judges are either struggling with coming to a decision, or at the very least, giving full weight to the implications of the case beyond ourselves. And we are in exceptional waters here. I used to think that it would only come to a conclusion with the Supreme Court, but now I think this ruling, if it really has been given the full concentration and analysis it deserves from the COA that it seems to be getting, will be the critical one. I am very cautiously optimistic.

[DonkeyRhubarb]

What will they be doing on a day to day basis, trawling through lots of documents in chambers, meeting with people who have an opinion such as CIOT, discussing the issues with government members, will the three of them be sitting down over a brandy to discuss etc, anyone know what they actually do during this period??

The judges are hearing new cases every week, and I would guess well over half their time is spent in court.

For example, all 3 of our judges (Mummery, Sullivan and Tomlinson) are in court today:
Court Hearings - Court of Appeal Civil Division

Only a small fraction of their time over the last 3 months will have been spent on our case. This will involve studying the barrister's submissions, examining case law and obviously reviewing Parker's HC ruling.

As far as I know they don't consult with anyone other than each other.

They will try to reach a unanimous decision but if they can't agree then they will issue a majority verdict.

[TheBarCapBoyz]

What "returns" are they asking for?

I now have the answer to this question from Tom at Montp. Apparently if there is a delay in the bloke from Stoke receiving the closure notices sent out from Middlesbrough, they go in to a strop
and demand the returns (which are what the closure notices are based on of course).

And they haven't even processed my appeal yet as it is in a backlog, so the bloke from Stoke won't have that either. That's if he ever gets, and understands what an appeal is, and assumimg the cretin can actually read.

Strange they get neither the CNs or the appeal but can threaten you with the heavy mob.

Actually it's not strange at all. This is the scum we are talking about.

I think I will demand an apology from the bloke in Stoke.

Tom told me Montp are getting a shed load of these letters. He said I can ignore it.

[TheBarCapBoyz]

I now have the answer to this question from Tom at Montp. Apparently if there is a delay in the bloke from Stoke receiving the closure notices sent out from Middlesbrough, they go in to a strop
and demand the returns (which are what the closure notices evaluate for tax of course).

And they haven't even processed my appeal yet as it is in a backlog, so the bloke from Stoke won't have that either.

Strange they get neither the CNs or the appeal but can threaten you with the heavy mob.

Actually it's not strange at all. This is the scum we are talking about.

I think I will demand an apology from the bloke in Stoke.

Tom told me Montp are getting a shed load of these letters. He said I can ignore it.

I have decided to put in an official complaint against Bartholemew using the HMRC complaints procedure.

We'll see how cocky this count is then.

[centurian]

Ultimately I think it comes down to whether the judges accept that the Government have clearly overstepped the mark in this case.

Yep, for all the masses of evidence and statements, it will come down to some relatively small points.

They will try to reach a unanimous decision but if they can't agree then they will issue a majority verdict.

Pure speculation, but that could be part of the reason for the delay - they don't agree