R Telefonica Europe Plc & Telefonica UK Plc v Commissioners for HM Revenue and Customs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWHC 2923 (Admin) |
| Date | 23 July 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/902/2015 |
[2015] EWHC 2923 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/902/2015
Mr S Grodzinski QC (instructed by Herbert Smith Freehills LLP) appeared on behalf of the Claimants
Ms J Simor QC and Ms S Hannett (instructed by Her Majesty's Revenue and Customs) appeared on behalf of the Defendant
I have already delivered a short judgment explaining why briefly I was going to grant permission in relation to ground 1. The issues that then arose were case management issues interlinking the question of whether there should be a stay in relation to grounds 4 and 5, whether ground 1 should join ground 3, and, less controversially, whether the matter should be transferred to the Upper Tribunal for the judicial review to be heard.
I heard argument on both sides. There appeared to be no real disagreement but that the Upper Tribunal, subject to hearing dates, would be an appropriate venue for the judicial review. The first question was whether, however, the judicial review on grounds 4 and 5 should be stayed pending the outcome of whatever was to be decided on grounds 1 and 3.
What troubled me most about the case proceeding was the risk of effectively a satellite determination, in the course of the legitimate expectation proceedings, of the statutory construction issue in ground 1, if it is exclusively a statutory construction issue, and possibly even ground 3. I was concerned that that should not happen. It seemed to me largely those issues could be avoided if ground 1 were decided along with grounds 4 and 5.
That still left what was to happen to grounds 4 and 5 if the claimant's claim were dismissed and/or if the tribunal decided that ground 1 should actually be dealt with with ground 3.
These matters were resolved before me by the offer, accepted by the defendant, of a preamble similar to the one accepted by the Court of Appeal in the Veolia ES Landfill Ltd & Ors, R (on the application of) v HM Commissioners for Revenue and Customs [2015] EWCA Civ 747, most recently delivered. Upon the suggestion being made by Mr Grodzinski (so far as I am aware for the first time before me) that such a preamble would be offered, as opposed to confronting the defence head on, Ms Simor indicated that she would take instructions and after the short adjournment, in line with indications of mine as to the way my mind was working, an agreed position has been arrived at.
Accordingly, grounds 1, 4 and 5 are being transferred to the Upper Tribunal with a time estimate of two and a half days.
I first of all would wish to make clear that the purpose of the preamble, as amended by me, in paragraph 3 is to preserve for...
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