Edwards (Inspector of Taxes) -v- Bairstow – HL – 25-Jul-55 – Lord Radcliffe, Viscount Simonds ([1956] AC 14, [1955] 3 All ER 48, [1955] 36 Tax Cas 207, Bailii, [1955] UKHL 3) – Taxes Management – Judicial Review – Litigation Practice
The House was asked whether a particular transaction was “an adventure in the nature of trade”.
Held. Although the House accepted that this was “an inference of fact”, they held that on the primary facts as found by the Commissioners “the true and only reasonable conclusion” contradicted that decision. The House set principles for establishing that decisions of a commissioner were ones of law, and were reviewable by an appellate court. Whether facts as found or admitted fall on one side or the other of some conceptual line drawn by the law is a question of fact. ‘Perversity’ in a decision means that “the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.”
Viscount Simonds said: “For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”
Lord Radcliffe criticised the tendency of courts to treat questions as “pure questions of fact”, so as to exclude review: “As I see it, the reason why the courts do not interfere with the Commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the Commissioners of greater experience in the matters of business or any other matters. The reason is simply that by the system that has been set up the Commissioners are the first tribunal to try an appeal, and in the interest of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The Court is not a second opinion where there is a reasonable ground for the first. But there is no reason to make a mystery about the subjects that Commissioners deal with or to invite the courts to impose any exceptional restraint on themselves because they are dealing with cases that arise out of facts found by the Commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.” and “I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three …” As to the commissioners findings of fact: “Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.”
Cited by:
Rowland -v- Boyle (Inspector of Taxes) ChD 11-4-2003 (Times 23-Apr-03)
Camas Plc -v- HM Inspector of Taxes ChD 7-7-2003 (Bailii, [2003] EWHC 1600 (Ch), Times 18-Jul-03, Gazette 18-Sep-03, [2003] STC 968)
Moyna -v- Secretary of State for Work and Pensions (formerly against the Social Security Commissioner) HL 31-7-2003 (Bailii, [2003] UKHL 44, House of Lords, Times 11-Aug-03, [2003] 1 WLR 1929)
New Angel Court Ltd -v- Adam (Inspector of Taxes) ChD 25-7-2003 (Times 08-Aug-03, [2003] EWHC 1876 (Ch), Bailii, Gazette 02-Oct-03)
Biogen Plc -v- Medeva Plc HL 31-10-1996 (Times 01-Nov-96, [1997] RPC 1, Bailii, [1996] UKHL 18, (1997) 38 BMLR 149)
Office of Fair Trading and others -v- IBA Health Limited CA 19-2-2004 (Bailii, [2004] EWCA Civ 142, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 4 All ER 1103, [2004] ICR 1364)
Clark -v- Oxfordshire Health Authority CA 18-12-1997 (Gazette 28-May-98, Bailii, [1997] EWCA Civ 3035, [1998] IRLR 125)
Regina -v- Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-2-1957 ([1957] 1 QB 574, [1957] 1 All ER 796, Bailii, [1957] EWCA Civ 1, [1957] 2 WLR 498)
Arnold (Inspector of Taxes) -v- G Con Ltd ChD 4-3-2005 (Times 14-Mar-05)
Sony Computer Entertainment Europe Ltd -v- Customs and Excise ChD 27-7-2005 (Bailii, [2005] EWHC 1644 (Ch), [2003] ECR II-418)
Templeton (Inspector of Taxes) -v- Transform Shop Office and Bar Fitters Ltd ChD 15-7-2005 (Times 20-Sep-05, [2005] EWHC 1558 (Ch))
Wisdom -v- Chamberlain (Inspector of Taxes) CA 8-11-1968 ([1969] 1 All ER 332, [1969] 1 WLR 275, [1969] 45 Tax Cas 92, [1969] 47 ATC 358, [1968] TR 345)
Matthews and others -v- Kent and Medway Towns and Fire Authority and others HL 1-3-2006 (Bailii, [2006] UKHL 8, [2006] ICR 365, [2006] 2 All ER 171, [2006] IRLR 367)
Yuen -v- The Royal Hong Kong Golf Club PC 28-7-1997 (Bailii, [1997] UKPC 40)
Lee Ting Sang -v- Chung Chi-Keung PC 8-3-1990 ([1990] ICR 409, [1990] 2 AC 374, Bailii, [1990] UKPC 1)
Arnold (Inspector of Taxes) -v- G Con Ltd CA 12-5-2006 (Times 09-Jun-06)
Regina -v- Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993 ([1993] 1 WLR 23)
H, Regina -v- (Interlocutory application: Disclosure) HL 28-2-2007 (Times 02-Mar-07, Bailii, [2007] UKHL 7)
Gaines-Cooper -v- HM Revenue and Customs ChD 13-11-2007 (Bailii, [2007] EWHC 2617 (Ch))
HM Revenue & Customs -v- Weight Watchers (Uk) Ltd ChD 21-1-2008 (Bailii, [2008] EWHC 53 (Ch))
David McKnight (Inspector of Taxes) -v- Brian Stephen Sheppard HL 18-6-1999 (Times 18-Jun-99, Gazette 07-Jul-99, House of Lords, Bailii, [1999] UKHL 6, [1999] 1 WLR 1333, [1999] 3 All ER 491)
D’Souza -v- Director of Public Prosecutions HL 15-10-1992 (Bailii, [1992] UKHL 10, [1992] 4 All ER 545, [1992] 1 WLR 1073)
Sugar -v- British Broadcasting Corporation and Another HL 11-2-2009 (Bailii, [2009] UKHL 9, HL, Times, [2009] 1 WLR 430)
Gerrard -v- Staffordshire Potteries Ltd CA 2-11-1994 (Bailii, [1994] EWCA Civ 31, [1995] PIQR 169, [1995] ICR 502)
Revenue and Customs -v- Smallwood and Another CA 8-7-2010 (Bailii, [2010] EWCA Civ 778, [2010] WLR (D) 177, WLRD)
Tags: Taxes
