Key Facts
- •Claimants applied for cross-examination of an HMRC witness in judicial review proceedings.
- •Judicial review concerns HMRC's refusal of repayment under the Disguised Remuneration Repayment Scheme.
- •Dispute centers on whether the decision-maker applied the correct test for "reasonable disclosure" under s20(5)(d) Finance Act 2020.
- •Claimants argue the decision-maker misapplied the test, using a "clear indication" standard instead of the correct standard.
- •HMRC disputes this, relying on the decision-maker's witness statement.
- •A conflict exists between the decision letter and the witness statement regarding the test applied.
Legal Principles
Cross-examination in judicial reviews is exceptional and only permitted where necessary for a fair and just disposal.
Administrative Court Judicial Review guide 2024, 11.2.2; R (oao Bancoult v Secretary of State for Foreign and Commonwealth Affairs) [2012] EWHC 2115 (Admin)
The court/tribunal must refuse relief if the outcome would likely not have been substantially different if the conduct complained of had not occurred (s 31(2A) Senior Courts Act 1981; s16(3C) Tribunal Courts and Enforcement Act 2007).
Senior Courts Act 1981, s 31(2A); Tribunal Courts and Enforcement Act 2007, s16(3C)
Outcomes
Application for limited cross-examination granted.
Limited cross-examination is necessary for a fair and just disposal due to a material factual dispute (the test applied) and an apparent conflict between documentary and witness evidence. The tribunal must first determine if the test was misapplied before considering HMRC's alternative argument.