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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Esterson, R (on the application of) v Revenue and Customs [2005] EWHC 3037 (Admin) (25 November 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/3037.html Cite as: 77 TC 629, [2005] EWHC 3037 (Admin), [2008] STC 875, [2006] BTC 170, [2007] STI 2215

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25th November 2005

1. MR JUSTICE DAVIS: By these proceedings, commenced by a claim form issued on 1st February 2005, the claimant, Mr Esterson, challenges the decision of the Commissioners of Customs and Revenue that the pension payable to him should be subject to deduction of UK tax at the full rate. Given the form that this challenge takes, the Commissioners do not seek to say that the claims raised are not appropriately dealt with by Judicial Review proceedings, nor is any point taken on delay. Permission was initially refused by Richards J on the papers, but was granted, after an oral hearing, by McCombe J on 22nd July 2005.
2. The background facts can be relatively shortly stated. Mr Esterson was born in the United Kingdom. He has, however, been resident in Jersey, the Channel Islands, since 1966; he has no place of residence in the United Kingdom. In 1970, he joined what was then BAOC which in 1975 merged with BEA to become British Airways. Mr Esterson was a pilot. He was promoted to Captain in 1987 flying, as I understand it, predominantly long-haul flights. On 19th September 2000 at the age of 55, the compulsory retiring age for British Airways pilots, he retired. He was entitled to a pension from the relevant British Airways pension scheme, which was a final salary scheme.
3. In order to carry out his duties as a pilot, Mr Esterson would frequently travel from Jersey to the United Kingdom, essentially to link up with the planes which he was due to fly from the relevant airport. In practice, because of the nature of his duties as a pilot, the vast majority of his duties were undertaken outside the United Kingdom.
4. Mr Esterson estimates that, on average, over the 30 years that he worked for British Airways or its predecessors, his annual duties in the United Kingdom were in the region of 7 per cent. According to Mr Esterson, when he started in 1970 he was told that his salary would be subject to full United Kingdom tax. However, in the event it was accepted that only the proportion of the duties actually undertaken in the United Kingdom, as part of his employment, would be liable to deduction of United Kingdom tax (see for example section 19(1) of the Income and Corporation Taxes Act 1988 and before that section 18(1) of the Income and Corporation Taxes Act 1970). The balance, as I gather, would be liable solely to tax in Jersey which Mr Esterson told me was, at all relevant times, 20 per cent.
5. As Mr Esterson told me, his understanding was that when he came to retire (his intention being to remain resident in Jersey on retirement) his pension would be entirely free of United Kingdom tax and would be subject solely to any applicable Jersey tax. In the event, he was bitterly disappointed in that expectation. On his retirement, the Revenue informed him that 100 per cent of his pension payments from the British Airways scheme would be subject to deduction of UK income tax and at the full rate, 40 per cent. Notwithstanding subsequent protracted correspondence, the Revenue has maintained at that position.
6. Mr Esterson says he cannot understand the fairness of an outcome, whereby 100 per cent of his pension is subject to United Kingdom tax at the full rate, when throughout his working life his earnings attributable to duties carried out in the United Kingdom as part of his employment averaged only 7 per cent and United Kingdom income tax, on those earnings, was only payable on that element accordingly.
7. Moreover, he says that that decision was contrary to a representation made to him by the Revenue many years earlier, was contrary to the policy which he says the Revenue had previously adopted with regard to British Airways pilots resident in Jersey and was inconsistent with the tax treatment accorded by the Revenue to other British Airways pilots resident in Jersey who had retired.
8. At the hearing before me, Mr Esterson appeared in person. He presented his written and oral arguments with exemplary clarity and economy, as well as the utmost courtesy. The defendants were represented by Mr Swift of counsel. I am grateful to both sides for their excellent submissions.
9. I should deal with the primary legislation, although I can do so relatively briefly since there was no dispute as to its effect. The current position with regard to liability to United Kingdom's tax on pensions paid by United Kingdom schemes is that set out in the Income Tax (Earnings and Pensions) Act 2003 (see in particular part 9). However, at the date of Mr Esterson's retirement in 2000, the relevant provisions applicable were contained in the Income and Corporation Taxes Act 1988.
10. Section 19, in the relevant respects, reads as follows:

"(1) The schedule referred to as Schedule E is as follows:-

SCHEDULE E

"1. Tax under this Schedule shall be charged in respect of any office or employment on emoluments therefrom which fall under one or more than one of the following Cases- ...

"Case 2. Where that person is not resident or, if resident, then not ordinarily resident in the United Kingdom, any emoluments for the chargeable period in respect of duties performed in the United Kingdom, subject however to section 192 if the emoluments are foreign emoluments (within the meaning of that section) and subject also to section 170."

Then by section 19(1)3, this is provided:

"3. Tax under this Schedule shall also be charged in respect of any pension which is paid otherwise than by or on behalf of a person outside the United Kingdom."

Section 597 of that Act provides in part as follows:

"(1) Subject to subsection (2) below, all pensions paid under any scheme which is approved or is being considered for approval under this Chapter shall be charged to tax under Schedule E, and section 203 shall apply accordingly."

Before that time, equivalent legislation was contained in the Income and Corporation Taxes Act 1970 and the Finance Act 1970.

11. The British Airways pension scheme was and is a United Kingdom scheme which was and is an approved retirement benefit scheme for the purposes of part 14 of the 1988 Act. In those circumstances, and by operation of the primary legislation, United Kingdom tax is payable and deductible under the PAYE scheme on pension payments from such a scheme, notwithstanding that a recipient at all relevant times has not himself been resident in the United Kingdom but has, for example, been resident in Jersey.
12. There is a double tax arrangement in place between the United Kingdom and Jersey. This means that Mr Esterson will be liable to no extra tax on his pension payments in Jersey if tax is paid under the United Kingdom tax legislation. However, the current applicable tax rate in Jersey is, as I was told, 20 per cent, whereas the deduction in the United Kingdom, of course, is at the rate of 40 per cent: a 20 per cent differential which naturally, as far as Mr Esterson is concerned, is very significant indeed.
13. It appears that over the years there have been, from time to time, some discussions as to whether a treaty should be introduced to provide exemption for persons in the position of Mr Esterson as a pensioner, but nothing has eventuated.
14. As I have indicated, collection of tax has been undertaken through the PAYE scheme. Of particular relevance for present purposes (which in its present form reflects previous regulations) is Regulation 57 of The Income Tax (Pay As You Earn) Regulations 2003 SI 2003/2682. That Regulation provides as follows in the relevant respects:

"57- (1) This regulation applies if a pension payer pays a pension, which does not arise wholly from an employment carried on abroad, to a pensioner-

"(a) who is not resident in the United Kingdom,

(b) who has not given Parts 2 and 3 of Form P45 to the pension payer, and

(c) in respect of whom a code has not otherwise been issued by the Inland Revenue..."

I need not read the rest of that regulation out.

15. The wording of this particular provision corresponds, as I was told, to previous regulations to like effect. That is to be set in the context of what may be styled a practice direction published by the Revenue under the number EP8281. In its original version (although I should explain that there were predecessors to EP8281 itself) this read as follows:

"When is PAYE to be applied?

"PAYE is to be applied to all pensions paid to non residents except where the pension is paid in respect of employment carried on abroad.

"An employment is regarded as having been carried on abroad if

The last ten years service in respect of which the pension is paid was abroad

or

The service abroad amounted to

- half the total service in respect of which the pension is paid was abroad and

- at least ten of the last twenty years."

The version of EP8281 before me is dated as issued in April 1997.

16. A revised version of EP8281 was published in July 2002. That is headed:

"International Employments: Part3: Subjects needing special care: When is PAYE to be applied?

"PAYE is to be applied to all pensions paid to non-residents except where the pension arises wholly from an employment carried on abroad.

"In practice, this is extended to apply to pensions where:

the last ten years service in respect of which the pension is paid was abroad

or

the service abroad amounted to -

half the total service in respect of which the pension is paid was abroad

and

At least ten of the last twenty years."

It is said that this latest form of wording accurately reflects what is now to be found in regulation 57 of the 2003 PAYE Regulations.

17. It may be noted that ever since 1944, when the relevant primary legislation for these purposes was first introduced, the treatment of tax on pensions and annuities paid to non-residents had been the subject of internal debate within the Inland Revenue. In fact, the treatment of pensions on the one hand in such circumstances and of annuities on the other hand did not always coincide.
18. Mr Esterson has resourcefully obtained relevant internal documents by invoking the provisions of the Freedom of Information Act. One can see from these the genesis of what became ultimately EP8281. Mr Esterson could point, as part of the internal debate, to an internal letter of 24th March 1945 which, after a discussion of certain points, said this:

"The Board here felt -

1) That we certainly can't charge non-resident pensioners whose service has been wholly or mainly abroad..."

An accompanying note said this under the heading "The Problem":

"We obviously shouldn't tax a pension if all the man's career was abroad, nor if it was mainly abroad. Where is the dividing line to be drawn?"

Mr Esterson could and did point to other documents which were of a similar tenor.

19. Mr Swift, for his part, could point in this disclosure of material to other memoranda which take a rather different and more rigorous approach with a view to recovering tax. Overall, although very interesting, these documents do not, I think, really assist me very much either way in the resolution of the dispute before me. Mr Esterson did, in fact, make a wide ranging attack on the fairness of the legislation using (and not unreasonably) his own case as an illustration of what he says are the unfair results which can be produced. But as to that, Mr Swift was entitled to respond, as he did, by saying that the legislation reflects the will of Parliament and effect must be given to it.
20. Mr Swift also pointed out that United Kingdom approved retirement benefit schemes have considerable advantages in the form of significant tax allowances and exemptions, as well as the advantage of regulation: which advantages thus operate to increase the benefits ultimately available to the beneficiaries. That too can and should be borne in mind as a rationale, if any justification be needed at all, for making tax payable on pension payments in such circumstances.
21. I turn then to the issues. The first and principal point which Mr Esterson raises is to rely on a representation which he says was made to him in the early 1970s, and perhaps 1972, by the Inland Revenue to the effect that if he remained resident in Jersey, as he has done, he would not be liable to United Kingdom tax on his British Airways pension. That being so, he submits that it would be unfair and contrary to the legitimate expectation engendered for the Revenue now to depart from that representation or assurance and seek now to deduct such tax.
22. It seems to me, considering the matter, that this argument breaks down at a number of stages. The first point is to assess whether or not such representation was in fact made, as Mr Esterson says. In considering this matter, I should, I think, bear in mind the observations of Bingham LJ in the case of R v Inland Revenue Commissioners ex-parte MFK Underwriting Agents Limited [1990] 1 WLR 1545 at page 1569:

"I am, however, of the opinion that in assessing the meaning, weight and effect reasonably to be given to statements of the revenue the factual context, including the position of the revenue itself, is all-important. Every ordinarily sophisticated taxpayer knows that the revenue is a tax-collecting agency, not a tax-imposing authority. The taxpayers' only legitimate examination is, prima facie, that he will be taxed according to statute, not concession or a wrong view of the law: Reg. v Attorney-General, Ex parte Imperial Chemical Industries Plc. (1986) 60 T.C.1, 64G, per Lord Oliver of Aylmerton. Such taxpayers would appreciate, if they could not so pithily express, the truth of the aphorism of 'one should be taxed by law, and not be untaxed by concession.' Vestey v Inland Revenue Commissioners [1979] Ch. 177, 197 per Walton J. No doubt a statement formally published by the Inland Revenue to the world might safely be regarded as binding, subject to its terms, in any case falling clearly within them. But where the approach to the revenue is of a less formal nature a more detailed inquiry is in my view necessary. If it is to be successfully said that as a result of such an approach the revenue has agreed to forgo, or has represented that it will forgo, tax which might arguably be payable on a proper construction of the relevant legislation it would in my judgment be ordinarily necessary for the taxpayer to show that certain conditions had been fulfilled. I said 'ordinarily' to allow for the exceptional case where different rules might be appropriate, but the necessity in my view exists here. First, it is necessary that the taxpayer should have put all his cards face upwards on the table. This means that he must give full details of the specific transaction on which he seeks the revenue's ruling, unless it is the same as an earlier transaction on which a ruling has already been given. It means that he must indicate to the revenue the ruling sought. It is one thing to ask an official of the revenue whether he shares the taxpayer's view of a legislative provision, quite another to ask whether the revenue knew will forgo any claim to tax on any other basis. It means that the taxpayer must make plain that a fully considered ruling is sought. It means, I think, that the taxpayer should indicate the use he intends to make of any ruling given. This is not because the revenue would wish to favour one class of taxpayers at the expense of another but because knowledge that a ruling is to be publicised in a large and important market could affect the person by whom and the level at which a problem is considered and, indeed, whether it is appropriate to give a ruling at all. Secondly, it is necessary that the ruling or statement relied upon should be clear, unambiguous, and devoid of relevant qualification.

"In so stating these requirements I do not, I hope, diminish or emasculate the valuable, developing doctrine of legitimate expectation. If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the examination, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should be generally in no better position. The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen. The revenue's discretion, while it exists, is limited. Fairness requires that its exercise should be on a basis of full disclosure. Mr Sumption accepted that it would not be reasonable for a representee to rely on an unclear or equivocal representation. Nor, I think, on facts such as the present, would it be fair to hold the revenue bound by anything less than a clear, unambiguous and unqualified representation."

In my view, those observations are directly in point in this particular case. So also in my view in point are the observations of Scott-Baker J in the case of ex-parte Gallaghan [2002] ELR494 at paragraph 41 of the judgment.

23. Mr Esterson in fact had some difficulty in identifying precisely in what form, and by whom, the representation which he relies on was made. At some stages, he has said that the representation was oral. More often, however, he has suggested that it was in writing. However, he himself has not been able to produce any such letter or other written document, nor can the Revenue locate any such letter or other written record of any such representation or assurance. As far as his own position is concerned, Mr Esterson says that this was over 30 years ago, that he has moved house on at least two occasions in that time, and moreover he has lent his file out to fellow BA pilots from time to time.
24. It is noticeable that the Revenue do still have a file of correspondence going back to the 1970s relating to income tax on Mr Esterson's employment in the United Kingdom. Further, the evidence of Mr Morrison, which I accept, indicates that the usual practice of the Revenue would be to retain, on file, such a letter if stating that a particular form of income in the future would not be liable to tax, as being a document of ongoing importance to be retained in what he called a 'permanant notes pad'.
25. The evidence of Mr Duffus, the inspector of the relevant branch in Edinburgh in the 1970s, is to like effect. That, moreover, makes eminant good sense. In my view, it is most improbable that if such an assurance was made, as Mr Esterson now says, it would not have been recorded in writing and kept on file.
26. I have borne in mind other evidence, to which I will come, that representations possibly similar to the representation which Mr Esterson says was made to him, may have been given to other BA pilots resident in the Channel Islands. Nevertheless, given the evidence before me, in my view, on the balance of probabilities, no such letter was ever sent to Mr Esterson. This, in itself in my view, is of the greatest significance in deciding whether or not the Revenue should be assessed as having made a representation or an assurance that it would forgo tax on any future pension payments to Mr Esterson from the BA scheme; which assurance, it is said, the Revenue should not be permitted to depart from. That is precisely for the reasons identified by Bingham LJ. If such was meant to be the commitment of the Revenue one would indeed expect it to be at the least recorded in writing.
27. As to Mr Esterson's alternative suggestion of an oral representation or assurance, that of itself, as I see it, loses much of its force, given his primary reliance on there having been a written representation. In any event, I am not persuaded that such a representation was made in the terms suggested. Mr Esterson has not identified the individual concerned, although he does say it would have been someone at the LP21 unit in Edinburgh. Nor has he identified, with any precision, the precise words which he says were used.
28. The obvious candidate perhaps for having made such a representation might be Mr Duffus, the inspector at that office at that time. But in his witness statement, Mr Duffus says, perhaps unsurprisingly, that he has no recollection of giving such assurance. More importantly, perhaps, he also says and, for cogent reasons to my mind, that he simply would not have given any such assurance and at all events if any such assurance would have been given he certainly would have put it in writing. That evidence I accept.
29. In any event, a conversation can have many different shades of wording and meaning. An oral statement to the effect that "if what you told me is right, it looks as though you will not have to pay UK tax on your pension when you retire" stands on an altogether different footing to a statement to the effect "as long as you remain resident in Jersey until you retire in an 20 years or so time, I can promise you that you will not have to bear UK tax on your pension."
30. In any event, any conversation that may have occurred between Mr Esterson and the LP21 office may have been no more than a discussion of the effect of what became put in the EP8281 document, which Mr Esterson may or may not have misunderstood. Moreover, I think it likely that Mr Esterson's mind-set on the point will have been influenced by what he understood the position to be over the years with regard to other retired British Airways pilots living in Jersey.
31. So this ground, as advanced by Mr Esterson, must fail. That is not to say that Mr Esterson did not have the belief that he would not have to pay United Kingdom income tax on his pension. Indeed, I accept that he did have such belief. But in my view it is not shown that such belief was attributable to any specific and unequivocal representation by the Revenue on which it was intended that he should rely, and I do not think that Mr Esterson could have had any legitimate expectation in the sense that that bears, in public law, to the contrary. His legitimate expectation in that sense was, shortly put, that he would be taxed in accordance with law and Revenue practice.
32. However, for completeness I should add other points which also tell against this particular argument, to my way of thinking.
33. First Mr Esterson had some difficulty in identifying any real detriment accruing to him as a result of this alleged representation (apart of course from the bitter disappointment he felt when told he would be liable to pay UK tax on the pension payments). Mr Esterson did suggest to me a number of steps that he may have taken, had he appreciated the potential position as it has developed: for example, not to make further payments into the scheme or to seek before retirement to transfer his benefits to a non-approved scheme in Jersey, or some other steps. However, the witness statement of Mr Delnon of the Inland Revenue, particularly at paragraphs 32 and 33, indicate that matters could not readily be so rearranged and further, as Mr Swift pointed out in the course of argument, the British Airways pilot scheme was an extremely attractive one, even allowing for potential UK tax on payments.
34. Second, and to some extent reflecting what I have already said, I think it of note that Mr Esterson, as he candidly told me, had been advised in around 1970 by an accountant that he would have to pay United Kingdom tax on 100 per cent of his pension when he retired. In addition, he also told me that he was advised by an accountant in Jersey in the mid-1990s (that is to say before he retired) that he would not, so long as he remained in Jersey for the last ten years before retirement, have to pay such tax. That Mr Esterson sought such advice is, to my way of thinking, revealing.
35. The next way in which Mr Esterson puts his case is by reference to EP8281. He says he fell within the original categorisation of that practice statement, and by the subsequent revision to the wording of EP8281, the Revenue has, as it were, moved the goal-posts and departed from its previously publicised policy, which he submits it is not free to do: at all events so as in the event retrospectively to catch a person in his position.
36. I was not minded to dismiss Mr Esterson's arguments quite so readily on this point as Mr Swift would have me do: not least because Mr Esterson's arguments seemed to me to reflect what some people might regard as a thoroughly sensible approach to be adopting. Nevertheless, on consideration of the matter, I think that Mr Swift's arguments are correct on this particular point.
37. Mr Esterson's argument would connote that there are to be read into EP8281, as it first stood, the words "wholly or mainly" after the words "is paid in respect of employment" and before the words "carried on abroad". I do not see a justification for doing that. I also do not think that the position is changed by the revised wording to EP8281. In that revised version, the introduced word "wholly" relates to the pension arising. It does not relate, and is not drafted so as to relate, to the actual employment carried on abroad. In this regard, and as I have said, the revised wording accords with regulation 57 of the PAYE Regulations. It is also, of course, entirely compatible with the primary legislation. The evidence of Mr Delnon in fact was to the effect that the latest version of EP828 accords with the way that the Inland Revenue have sought to apply its practice for over 50 years.
38. A further ground advanced by Mr Esterson was then to this effect (although, to some extent, it is a variation on his earlier arguments). He submits that the Revenue has acted inconsistently and arbitrarily and has departed from a policy which had been carried into effect by the LP21 branch with regard to British Airways pilots in Jersey. The LP21 branch, was the branch which to all intents and purposes (and subject, on occasion, it would appear to guidance from the Bootle office) dealt with such pilots in the BA scheme. Mr Esterson told me that he knew of no British Airways pilot who had retired between 1970 and 2000 resident in the Channel Islands who had, before 2000, been assessed as liable to UK tax on their British Airways pension payments.
39. This argument requires, as a starting point, that there was such a policy (in Mr Esterson's word) adopted by the LP21 branch. I add that if there was one, it was never published or put down in writing and in reality, Mr Esterson's argument is that that branch throughout treated all such pilots in the same way.
40. In my judgment, this argument also fails and for a number of reasons. First, if that was the approach of LP21 at the time, I do not think it should be regarded as something from which the Revenue could not be free to depart thereafter. That approach which Mr Esterson says LP21 branch adopted, would potentially involve (assuming the relevant pilots concerned had whilst employed undertaken some duties in the United Kingdom) a misunderstanding of the primary legislation and of EP8281. I think the courts will ordinarily be slow to promote into a policy, available to the entire class of relevant taxpayer, an asserted practice which a particular branch has allowed to develop acting under a mistake or misapprehension. It may be that some other taxpayers, some other British Airways pilots, have been fortunate. It does not follow that Mr Esterson should, as a matter of public law fairness, share in that fortune by requiring a continuation of the mistake or misapprehension; the comments of Moses J in ex-parte Weston [2004] 76 Tax Cases 207.
41. Second, and quite apart from that, I am not in fact satisfied that there was such a practice or policy as Mr Esterson argues for. For one thing, the evidence shows, and I did not understand Mr Esterson to dispute it, that LP21 considered the case of each BA employee by reference to his or her individual circumstances, as indeed one would expect. The evidence of Mr Morrison, moreover, shows that in the light of the claims made by Mr Esterson and indeed certain other complaints made by other Jersey based retired British Airways pilots, a review of the files had been undertaken by the Revenue. 86 cases relating to retired British Airways aircrew were identified involving the Channel Islands and Isle of Man, where it could be taken that at least some duties had been carried out in the United Kingdom during the course of employment. Errors in the form of tax not being charged on the pension payments, were identified in 28 cases.
42. I gather that the Revenue is approaching those individual cases, in deciding what now to do, by reference to the circumstances of each individual employee concerned and by reference to the circumstances of each individual case. But this analysis and identification of such cases indicates that LP21 was in fact adopting a different approach in different cases, and that tax was, it would appear, was being levied on pension payments in a significant number of cases. I do not think this point is rebutted by Mr Esterson's suggestion that this balance must have represented not pilots but cabin-staff or the like who may have had quite different tax concerns and considerations.
43. Mr Esterson put in a list of details of some of the British Airways pilots based in Jersey who he said had the same understanding as he did: that is, that they would not be liable to United Kingdom's tax on their British Airways pension. On analysis, this list was by no means conclusive in support of Mr Esterson's case. Some of the individuals in response to a questionnaire provided to them by Mr Esterson did not claim to have received any representation from the Revenue. Others claimed to have received such a representation or advice in writing, but did not then produce the relevant written document. Others, again, referred to advice received from accountants.
44. The high point of the cases put before me in support of Mr Esterson's overall position, perhaps are those relating to Captain Girard and Captain Gare. These do, prima facie (and I do stress prima facie) lend some support to such a representation having been made to those two individuals. But as to that the full facts relating to their two cases are still being investigated and the full documentation is still not established; and, in the case of Captain Gare in the case of one such document, a fax, that is not currently fully decipherable.
45. In any case, if there was such a misrepresentation in the cases of those two individuals, it does not necessarily mean that that is required to be replicated in the terms of the treatment of Mr Esterson for the reasons I have already given.
46. Mr Esterson did also briefly seek to invoke aspects of the Convention on Human Rights and the Protocol to Article 1. I intend no disrespect to that brief argument by disposing of it just as briefly; those points have absolutely no bearing on or relevance to this present matter.
47. In conclusion, and because of Mr Esterson's repeated complaint that he had been treated unfairly, I should emphasise that in public law terms the doctrine of unfairness (in common with the subordinate doctrine of legitimate expectation) does not simply operate on a subjective basis. As most recently spelled out by Laws LJ in the decision in Nadaraja [2005] EWCA Civ 1363, especially at paragraphs 67 to 69 of the judgment, and as accords with numerous other cases in this field, those doctrines are, or at all events ought to be, given application by reference to the facts of each case on a principled basis. In my judgment there is, in public law terms, no requirement of fairness, legitimate expectation or proper and consistent application of policy which precludes the Revenue from assessing Mr Esterson as liable to UK tax on his BA pension. Therefore, and whilst appreciating that this is a most disappointing result for Mr Esterson, my clear conclusion is that this claim must be dismissed.