Neutral Citation Number: [2014] EWHC 2426 (Admin)

CO/12316/2013 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 20 May 2014
 
B e f o r e: 

MRS JUSTICE ANDREWS
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Between: 
THE QUEEN ON THE APPLICATION OF ST MATTHEWS (WEST) LTD 
Claimant

v 

HM TREASURY 
Defendant 
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Mr J Woolf (instructed by PWT Advice LLP) appeared on behalf of the Claimant 
Mr K Beal and Mr S Pritchard (instructed by HMRC) appeared on behalf of the Defendant 
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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 the Government introduced in order to plug a loophole in the tax legislation, in order to outlaw certain types of tax avoidance scheme.  The challenge is brought primarily under Article 1, Protocol 1 of the European Convention on Human Rights, and I have given permission to the claimants to allow them to also address arguments to the court on Article 6 of the Convention.
5.	Mr Woolf says on behalf of the claimants that he wishes to cross‑examine the witnesses on two specific matters, both of them pertaining to alleged selectivity on the part of the Government in terms of retrospective legislation to deal with aggressive anti‑avoidance schemes.  The first is in the area of employment, the second, he says, relates to other schemes relating to stamp duty land tax.  As to the former, it is clear that the witnesses whose evidence has been adduced by the Defendant work on the stamp duty land tax side of Her Majesty's Revenue and Customs.  I am told by Mr Beal QC on instructions that they do not have any relevant knowledge of employment legislation or of decisions that have or have not been taken in relation to retrospective legislation.  Therefore, any questions that might be asked of them in cross-examination would be futile because they have no evidence that they could give on the subject that would take the matter any further.
6.	As regards to the question of alleged selectivity in respect of targeting the stamp duty land tax avoidance schemes, the point has only emerged very recently.  It is understandable why Mr Beal did not appreciate it to be a live issue until this morning, although there is a somewhat obscure allusion to it in both the witness statement of Mr Bryant and in a document that was served in response to the defendant's objections to the claimant's applications by Mr Woolf yesterday afternoon.  
7.	It seems to me that the issue that I have to determine in the is, essentially, a legal issue.  The evidence of the factual background is in the witness statements.  I am not persuaded that the court will be assisted in the slightest by cross‑examining Mrs Ewart or any other witness on behalf of the defendants as to why, if at all, retroactivity has not been used in relation to other tax avoidance schemes, let alone that fairness and justice demands that course. The issue here is whether the use of retrospective legislation to shut down this particular scheme was lawful or not. It also seems that this is purely a fishing exercise.  I was shown one document, which I have been told that the claimant has downloaded from the internet only recently, although he admits that he was aware of the existence of the other tax avoidance schemes since January.  That document suggests that there has been disclosure of a particular scheme to HMRC but there is no way of knowing whether it has or it has not, let alone whether any decision has been made about how to respond to the disclosure.  If the point had been flagged up more clearly at an earlier stage, it is possible that Mrs Ewart would have had a chance to look into it and produce some evidence about the decision that was or was not made in relation to that scheme.  But, more fundamentally, it does seem to me that the question of arbitrariness and the question of selectivity are different points and I still struggle to understand what relevance comparison with the treatment of other such schemes is going to have to the legal issues that I have to decide.  
8.	The final point that was made is one of detail.  Mr Woolf said that he wants to cross‑examine Mrs Ewart to explore why it is that a protocol relevant to retroactive legislation was not considered, or when it was considered, by the Government before they enacted the legislation under challenge.  In fact it is quite clear from the memo that has been disclosed that consideration was given to that protocol. It is even referred to in one paragraph of the memo.  Therefore there is no need for cross‑examination to elucidate further factual material in relation to that.
9.	I am not satisfied that this is an appropriate case to apply the exceptional power to allow cross‑examination of the witnesses and I decline the application.  I should say, however, that I will allow the Article 6 point to be raised and, on Mr Woolf's assurance that he is not going to raise any point of detail in relation to documents that are governed by Scottish law, about which there is no evidence at all, and that he will attempt when we have a break in the proceedings to agree certain facts relating to that with Mr Beal. I am not at the moment minded to exclude any of the exhibits to Mr Bryant's witness statement, so that witness statement will stand in evidence, as will indeed the evidence of Mrs Ewart in response to it.