Murat, R (on the application of) v Special Commissioners Office

MR JUSTICE OUSELEY: This is a form of proceedings by way of appeal which Mr Murat has sought to commence against Mr Wallace, who is a Special Commissioner of Income Tax. Mr Wallace heard an appeal brought by Mr Murat against penalty notices issued by HM Revenue and Customs on 29th December 2003. Mr Wallace reduced the quantum of penalties to £2,870 from £4,280.

Mr Murat then appealed against that decision, raising both tax management points and human rights points. He appealed to the High Court and Moses J, on 24th October 2004, dismissed the appeal against that decision of the Special Commissioners. Mr Murat thereafter sought permission to appeal to the Court of Appeal in respect of Moses J's judgment. He alleged breaches of Articles 4 and 6 ECHR. The application for permission was refused by Latham LJ on 6th April 2005.

In these proceedings the same decision of Special Commissioner Mr Wallace of 29th December 2003 is at issue. The only difference is that in the first appeal the Revenue were named as the respondent. That would be the normal course of events for the other party to the decision to be named as the respondent to the decision. Now, it is Mr Wallace, the Commissioner himself, who is sought to be made the respondent.

Those facts alone suffice to show that these proceedings are misconceived and are indeed an abuse of the process of the court. It is not right, as Mr Murat seems to think, that he can bring an appeal against a decision naming one respondent and then, upon failure, bring a second appeal against the self same decision naming a different respondent. Mr Murat was driven to accept that that is what he was doing. He contends, however, that he has some entitlement to do that because he seems to take the view that the Revenue are not legitimate parties to this appeal, although he had made them parties to his first appeal.

He was concerned about the extent to which the parties were connected. The reality is that the successful party before Judge A is entitled to support that judge's decision when that matter is appealed to Appeal Judge B. That is all that has happened. This is not one of those cases where a Tribunal itself, or the judge of the Tribunal, is an appropriate respondent. The suggestion that Mr Wallace should have turned up to answer questions before Moses J is misconceived.

None of the other points raised by Mr Murat merit consideration because they either were, or should have been, raised in the appeal dealt with by Moses J. There is a complaint that the requirement to deal with private drawings was a breach of Articles 8(1) and (2) of the ECHR. If those points were not raised and were arguable, that is Mr Murat's failing.

The complaint that Moses J was inconsistent in dealing with an argument raised concerning self-incrimination merely shows the confusion in Mr Murat's mind as to the nature of these proceedings. He has had his appeal to Moses J and he has had the opportunity which he sought to take, but unsuccessfully, to appeal from Moses J to the Court of Appeal.

The contention that the penal powers should not be used in pursuit of an erroneous demand may be sound law, but that is the stuff and matter of the appeals, first to the Special Commissioners and secondly to Moses J. If the matter was raised it would be dealt with on appeal and if it was not raised then it should have been. It is not open in the course of these proceedings for Mr Murat to raise complaints about other decisions of the Special Commissioner; indeed, decisions that appear to have taken place some many months before those that are actually the subject matter of these proceedings. As I have said, these proceedings are an abuse of the process of the court and they are dismissed. Thank you, Mr Murat.

MR HILL: My Lord, the Revenue asks for its costs.

MR JUSTICE OUSELEY: Do you have an assessment?

MR HILL: My Lord, I do. One was faxed through to the court.

MR JUSTICE OUSELEY: Yes. Do you have a copy, Mr Murat?

MR MURAT: No.

MR HILL: He was offered one earlier on.

MR JUSTICE OUSELEY: You now have the opportunity of looking at the summary assessment of costs. Do you want to say anything? First of all about the principle; do you object to paying costs in principle?

MR MURAT: Costs, if they were appropriate, my Lord. I do not consider these to be appropriate.

MR JUSTICE OUSELEY: What about the quantum, the amount?

MR MURAT: The quantum is excessive, my Lord.

MR JUSTICE OUSELEY: In what way?

MR MURAT: The hourly charge, preparing instructions. They were not a party to preparing instructions. If that means instructed by the Special Commissioners Office then that would have been appropriate, but instructions from who?

MR JUSTICE OUSELEY: These are the Inland Revenue, not the Commissioner. The Commissioner, although you put him in as a respondent, has not on the papers had anything to do with this case.

MR MURAT: The skeleton arguments, all the content of the skeleton argument could be drawn in 10 minutes as they were involved in the last hearing in October. To quantify that at £300 is totally excessive.

MR JUSTICE OUSELEY: Can you help me, Mr Hill, in relation to skeleton argument and grounds of appeal. Three hours?

MR HILL: Sorry. There are two typographical errors. First of all, the hourly rate of £100. The grounds of appeal, that is incorrect. Settling skeleton argument. In fact, what that three hours constitutes is that most, or a considerable part, of that was reading through the whole file, reading the Special Commissioner's decision and reading the High Court's decision. The drafting of the skeleton is an hour at most and two hours of orientating myself. I was not counsel in the other appeal.

MR JUSTICE OUSELEY: Do you want to say anything in response to that, Mr Murat?

MR MURAT: I completely think they are excessive.

MR JUSTICE OUSELEY: There is an application for costs by HM Revenue and Customs. The principle of that is contested by Mr Murat on the grounds that they are not properly present. That is wrong. They are properly present because, by whatever means, Mr Murat is seeking to appeal against the decision of which they have the advantage in relation to the penalty notices which require a sum to be paid. They are, therefore, properly present.

As to quantum, Mr Murat says, generally, that the costs are excessive, particularly by reference to the larger items; settling the skeleton argument which Mr Hill tells me, and I accept, includes the necessary preparation. I do not think it is excessive. There will be an order that £860 be paid by Mr Murat to HM Revenue and Customs.

MR HILL: Thank you my Lord.