Scottish Human Rights Law Group » Taxation

Humphreys v Revenue & Customs Commissioners (2010)

Lee Jones — Mon, 22 Feb 2010 09:52:03 +0000

[2010] EWCA Civ 56

Although the system of single payment of child tax credit to the person mainly responsible for the child indirectly discriminated against men it was justified as a proportionate means of pursuing a legitimate aim of social policy.

Full report can be found here

Commissioners for HM Revenue and Customs v Dr Piu Banerjee

Sarah Smith — Wed, 24 Jun 2009 16:07:51 +0000

Banerjee saw the court refusing to anonymise, following a public hearing, a judgment about the taxation issues around a doctor’s expenses. Dr Banerjee argued that she was vulnerable to attack or identity theft, that it would be professionally embarrassing to her to be named and that there was no public interest in identifying her. The judge, whilst accepting that there was a legitimate Art 8 expectation of privacy in a person’s financial affairs, considered that there was an overarching public interest in open justice and court reporting. The details here were not especially embarrassing, there was no increased physical, financial or professional risk to her and “there is nearly always a wider public interest potentially involved in even the most mundane-seeming tax dispute.”

This case was decided on 19 June 2009 and is available here.

Rosalind McInnes

Barclays Bank plc v Guardian News & Media Ltd

Sarah Smith — Mon, 18 May 2009 13:50:19 +0000

An injunction was continued against republication by The Guardian of documents, including legally-privileged documents, purportedly showing tax-avoidance strategies by banks. There was a discussion of when online publication means information is no longer confidential. S12(4) of the Human Rights Act 1998 did not succeed here in permitting publication. It was accepted that the debate over tax-avoidance was of public interest, but the court held that The Guardian did not need to publish all the documents to contribute to the debate.

This case was decided on 19 March 2009 by the Queen’s Bench Division and is available here.

Rosalind McInnes

Honer v Wilson

Susan Reddy — Sat, 02 May 2009 18:34:03 +0000

Structural bias and the Auditor of the Court of Session

It was claimed that there was a breach of Article 6 impartiality from the fact that the fees for the Auditor of the Court of Session, who has the task of fixing the precise amount of fees which the winning party in a civil action in the Court of Session who has been awarded expenses may recover from the losing side, are determined in part by how much he decides to award the recovering party on taxation.

The paying party argued that hat the table of fees should be construed as entitling the auditor to charge fee fund dues only on the account as submitted by the recovering party rather than on any higher final amount taxed by the auditor (which might including any additional fee awarded by the auditor to the recovering party reflect complexity in the cases and the like). The Lord Ordinary rejected the paying party’s submissions holding that properly construed the rules governing taxation did not give the auditor a direct financial interest in the decision made as to the level of the additional fee since the auditor did not select the level of the additional fee in a vacuum but instead was presented with submissions as to the appropriate level, and in the case at hand head made an assessment significantly below the range for which the entitled party contended.

This is available to read here

Interference with moveable property – arrestment on the dependence

Lee Jones — Mon, 27 Apr 2009 12:59:28 +0000

The other pre-emptive and protective remedy commonly obtained as a matter of course when raising a court action in Scotland was a warrant to arrest, on the dependence of the action, any funds belonging to the defenders which were in the hands of third parties. [1] The authority for diligence was granted by a clerical act of a clerk of session but since diligence on the dependence was available as of right in cases where there were pecuniary claims, in theory a pursuer with a weak, exaggerated or unfounded claim could alter the balance of power by tying up the defender’s assets and damages for wrongful or unjustified use were available only in exceptional cases. In Advocate General for Scotland v Taylor [2] the Inner House held that the availability of diligence as of right, irrespective of whether the pursuer’s claim was well founded in fact or in law and without any judicial assessment of the claim’s validity did not contravene Article 6 (because the civil rights and obligations of an individual were not determined by the grant of the warrant itself) and so a fair and public hearing by an independent and impartial tribunal established by law was not required. However having regard to Article 1 Protocol 1 in order to justify the interference with property rights the court held that the grant of a warrant for diligence on the dependence should in essence be a judicial act where a judge himself had to consider the material placed before him before deciding to grant warrant for diligence or refuse it. The court observed that the applicant for a warrant or letters of inhibition need only establish a prima facie case on the merits of the action and that the diligence sought was proportionate to the claim.

[1] In Scottish Power Generation Limited v. British Energy Generation (UK) Limited, 2002 SC 517, IH the provisions of Section 47(2) of the Court of Session Act 1988 were sought to be used. in the context of on-going contractual relationship between the parties, as an alternative means of providing proper security for both parties in respect of litigated claims.

[2] Advocate General for Scotland v Taylor, 2004 SC 339