Judicial review in tax cases

Produced by Tolley and written by Anne Redston. Anne is a barrister at Temple Tax Chambers and is not authorised to write on behalf of the Tribunals Service or the judiciary.
Judicial review in tax cases

The following Personal Tax guidance note Produced by Tolley and written by Anne Redston. Anne is a barrister at Temple Tax Chambers and is not authorised to write on behalf of the Tribunals Service or the judiciary. provides comprehensive and up to date tax information covering:

  • Judicial review in tax cases
  • What is judicial review?
  • HMRC decisions and judicial review
  • Tax decisions potentially subject to judicial review
  • Examples of HMRC decisions which can be subject to judicial review
  • Legislative provisions potentially subject to judicial review
  • Where to make your application for judicial review
  • Judicial review in the High Court (Admin Chamber)
  • Pre-action protocol
  • Application for permission and the main (‘substantive’) hearing
  • More...

This guidance note considers judicial review in the context of tax.

In particular, it explains:

  1. what judicial review is

  2. the scope of judicial review

  3. where to make an application for judicial review, and in particular:

    1. when it is possible to make an application to the Upper Tribunal

    2. whether it is possible to make an application to the First-tier Tribunal

  4. what to do if your dispute involves both public law and technical tax issues

  5. the remedies available ― ie what outcomes the taxpayer can expect if he wins

Judicial review is complex and this guidance note is only a summary. Unless you are experienced in judicial review work, it is recommended that you take specialist advice.

In particular, this guidance note does not cover non-tax related claims, criminal matters, or Scots or Northern Irish law.

This guidance note, and the other related guidance notes on Tribunal appeals, sets out the position before the coronavirus (COVID-19) pandemic. Although not specifically about judicial review, many of the themes discussed in the Tax Tribunals and coronavirus (COVID-19) guidance note, broadly apply to judicial review proceedings. However, you are advised to take specialist legal advice.

What is judicial review?

Judicial review is the procedure whereby the court considers whether the decision of a public body was lawful.

Judicial review has classically been described as “not an appeal from a decision but a review of the manner in which the decision was made”.

Judicial review proceedings can be taken against:

  1. any public body, including HMRC, and

  2. legislation, including secondary legislation

Judicial review is normally only available when there is no alternative remedy (such as when there is no right to appeal against the decision), see Preston, Glencore and Archer.

However, tax disputes may include two or more elements, some within judicial review and some within the normal appeal procedures. That situation is considered at the end of this guidance note.

HMRC decisions and judicial review

Tax decisions potentially subject to judicial review

An HMRC decision can be within the scope

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