A commercial judicial review concerning the diverted profits tax clarifies the High Court’s power to grant permission to appeal, writes Ben Amunwa.
Does the High Court have the power to grant permission to appeal against its own decisions to refuse permission for judicial review after a hearing?
No, says the case of Glencore Energy UK Ltd v HMRC [2017] EWHC 1587 (Admin), in which the High Court clarified the operation of civil procedure rules (CPR).
The case arose from an application for judicial review made by Glencore Energy (the multinational mining giant and taxpayer), against a decision by HMRC to impose a charge for diverted profits tax under FA 2015.
Glencore’s application was dismissed on the basis that there were alternative remedies available to it in the form of statutory review and appeal procedures, (judicial review being a remedy of the last resort) and because the errors complained of made no substantial difference to the outcome.
The dispute focused on whether the CPR provides the High Court with the power to determine an application for permission to appeal against the refusal of permission for judicial review.
CPR 52.3(2) provides for a general rule on applications for permission to appeal which allows the lower court or the appeal court to grant permission.
CPR 52.8 contains a specific rule for judicial review proceedings which states that there is no right for the High Court to grant permission to appeal following refusal of permission and that the disappointed party must seek permission to appeal from the Court of Appeal.
That must be done within a very short deadline of seven days. The relationship between these two rules had not been considered previously until now.
The judge concluded (at paras 10–12):
‘CPR 52.3(2) is a general rule whereas CPR 52.8 is a special rule applicable to judicial review. There would be no point in CPR 52.8 having been drafted had it been intended that the general rule should govern cases where permission to apply for judicial review had been refused after a hearing.
‘It is true that CPR 52.8 does not expressly state the negative, i.e. that the High Court, having refused permission, has no power to grant permission to appeal. But that it the silent premise upon which it is drafted.
‘The logic behind these rules must be understood in the context of the regime governing judicial review in CPR 54. A litigant cannot bring proceedings for judicial review unless permission is granted and if no permission is granted there are no proceedings on foot: CPR 54.4. Where the High Court has refused permission on paper then the litigant can renew the application before the High Court but cannot appeal that refusal: CPR 54.12. Where the applicant has been refused permission after an oral hearing then there is a specific rule (CPR 52.8) enabling the disappointed litigant the chance to request the Court of Appeal to grant permission to bring proceedings. CPR 54.4, 54.12 and 52.8 thus provide a complete code which governs the bringing of proceedings for judicial review.’
While the decision took place in the context of commercial judicial review, its guidance is likely to affect any public law practitioners dealing with applications in the Administrative Court.
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The High Court ruling in Glencore Energy
A commercial judicial review concerning the diverted profits tax clarifies the High Court’s power to grant permission to appeal, writes Ben Amunwa.
Does the High Court have the power to grant permission to appeal against its own decisions to refuse permission for judicial review after a hearing?
No, says the case of Glencore Energy UK Ltd v HMRC [2017] EWHC 1587 (Admin), in which the High Court clarified the operation of civil procedure rules (CPR).
The case arose from an application for judicial review made by Glencore Energy (the multinational mining giant and taxpayer), against a decision by HMRC to impose a charge for diverted profits tax under FA 2015.
Glencore’s application was dismissed on the basis that there were alternative remedies available to it in the form of statutory review and appeal procedures, (judicial review being a remedy of the last resort) and because the errors complained of made no substantial difference to the outcome.
The dispute focused on whether the CPR provides the High Court with the power to determine an application for permission to appeal against the refusal of permission for judicial review.
CPR 52.3(2) provides for a general rule on applications for permission to appeal which allows the lower court or the appeal court to grant permission.
CPR 52.8 contains a specific rule for judicial review proceedings which states that there is no right for the High Court to grant permission to appeal following refusal of permission and that the disappointed party must seek permission to appeal from the Court of Appeal.
That must be done within a very short deadline of seven days. The relationship between these two rules had not been considered previously until now.
The judge concluded (at paras 10–12):
‘CPR 52.3(2) is a general rule whereas CPR 52.8 is a special rule applicable to judicial review. There would be no point in CPR 52.8 having been drafted had it been intended that the general rule should govern cases where permission to apply for judicial review had been refused after a hearing.
‘It is true that CPR 52.8 does not expressly state the negative, i.e. that the High Court, having refused permission, has no power to grant permission to appeal. But that it the silent premise upon which it is drafted.
‘The logic behind these rules must be understood in the context of the regime governing judicial review in CPR 54. A litigant cannot bring proceedings for judicial review unless permission is granted and if no permission is granted there are no proceedings on foot: CPR 54.4. Where the High Court has refused permission on paper then the litigant can renew the application before the High Court but cannot appeal that refusal: CPR 54.12. Where the applicant has been refused permission after an oral hearing then there is a specific rule (CPR 52.8) enabling the disappointed litigant the chance to request the Court of Appeal to grant permission to bring proceedings. CPR 54.4, 54.12 and 52.8 thus provide a complete code which governs the bringing of proceedings for judicial review.’
While the decision took place in the context of commercial judicial review, its guidance is likely to affect any public law practitioners dealing with applications in the Administrative Court.
