Jersey Unreported Judgments

Taxation - application for leave to appeal to the Privy Council and costs.

[2013]JCA260

Court of Appeal

27 December 2013

	Before     :		The Hon Michael J. Beloff, Q.C.; President; Sir John Nutting, Bt., Q.C., and; Sir Hugh Bennett.
Between		Volaw Trust & Corporate Services Limited		First Appellant
		Mr Berge Gerdt Larsen		Second Appellant
And		The Office of the Comptroller of Taxes		Respondent

Application for leave to appeal to the Privy Council and costs.

Advocate A. D. Hoy for the First Appellant.

Advocate J. Harvey-Hills for the Second Appellant.

Advocate J. D. Kelleher for the Respondent.

JUDGMENT

THE president:

1.        We are asked by the Appellants to give them leave or permission to appeal our judgment of 28^th November 2013 to the Privy Council.  It is not in issue:-

(i)        that we have jurisdiction to do so; and

(ii)       that our discretion is very wide. 

In our view the public importance of the issues is a necessary, but not a sufficient, basis for the grant of leave.

2.        It is suggested that our judgment gave the appearance of not having considered the Appellants arguments. In paragraph 103 we set out the issues raised before us and thereafter considered them in sequence evaluating both the Appellants and the Respondents arguments. The fact that we reached overall the same conclusions as did the Royal Court and for convenience adopted passages of their judgment - although not verbatim - merely reflects the fact that two Courts have now considered these issues and agreed on their proper resolution.

3.        Some of the issues were fact specific; on others which raised points of construction we did not find the Appellants arguments at all convincing.

4.        The proper procedure to be adopted on an appeal against a decision of the Comptroller to serve a regulation 3(2) notice is a matter of interest to the Royal Court in cognate circumstances, but our decision did not depend upon the procedure adopted which was to the benefit of the Appellants.  See Judgment paragraph 101.

5.        We did not find the importance of the issues so obvious as to outweigh our doubts as to the Appellants arguments or to commit the Privy Council to hear a case which itself it might not have chosen to hear.

6.        We did not find it necessary to invite submissions from the Respondent but can see no rational basis for unfairly depriving a respondent to such an application for leave from an opportunity to make representations such as he would enjoy if and when it was renewed before the Privy Council itself.

7.        Accordingly we refuse leave or permission to appeal.

8.        Since any appeal to the Privy Council might be academic, absent an appropriate undertaking by the Respondent, and we recognize that our view of the lack of merits of the proposed appeal might not be shared by that body, we grant a stay of any action by the respondent pursuant to the Notice as long as the Appellants file an application for leave or permission with the Privy Council no later than 10am 8^th January, 2014, such stay to subsist unless and until the Privy Council orders otherwise.it must be for the Privy Council, not we, to determine whether any stay, if any, should be granted pending any an application by the Appellants to the European Court of Human Rights.

9.        We also order that the Appellants do pay the costs of and incidental to the Appeal on a joint and several basis.  This is both the usual order in cases of this kind, and is fair in all the circumstances of the present case, where the Appellants arguments were identical.

Authorities

Volaw and Larsen-v-Comptroller for Income Tax [2013] JCA 239.