The High Court judgement was handed down on 4th July, and it was unfavourable.
We were not surprised by this but were surprised that the basis of the judgement had significant errors of both law and interpretation of recent case law. We spent considerable time, both in writing and orally at the hearing, clarifying to the Judge all the relevant law and cases. Almost all of this was seemingly ignored.
Our Counsel Tom Chacko immediately submitted an application to the Judge for permission to appeal.
The preliminary appeal is served on the Judge who heard the claim and he is under obligation to respond quickly. Unsurprisingly, he has rejected the preliminary appeal. We will now issue a detailed appeal to the Court of Appeal by July 25th.
We would expect a response from the Court of Appeal in early Autumn given there is a summer break.
Overall, we believe that our claim remains as before since the High Court Judge has, inexplicably, ignored significant parts of the law. In effect, we have passed stage 1 of the legal process and should we get leave to appeal will be able to present the claim to 3 Judges one of who we would hope will be knowledgeable in tax.
It is our view that Mr Lewis has seriously misinterpreted the scope and purpose of Section 59B TMA, and instead decided that Section 59B permits the recovery of over-repayments whether they derive from carry backs or sideways loss claims. He thought that the De Silva decision brought a carry-back claim within its scope and, as regards Ranjit-Singh’s sideways claim, that the HMRC amendment letter sent to her did what Section 59B and the De Silva decision contemplated.
This is a seriously flawed judgement. There is virtually no analysis of the application of De Silva as we had pleaded, and even less discussion of the Archer requirements. Mr Lewis failed to address the inapplicability of De Silva to sideways loss claims. This is perhaps not surprising; not only is Mr Lewis not tax-experienced, but we always said that our technical arguments need to be examined by more senior judges.
Since the appeal application has been refused by Mr Lewis, Tom Chacko is preparing a direct application to the Court of Appeal for consent, and this will be submitted by the deadline of July 25th.