Revenue and Customs Commissioners v DCM (Optical Holdings) Ltd
| Jurisdiction | Scotland |
| Judgment Date | 11 July 2019 |
| Date | 11 July 2019 |
| Court | Court of Session (Inner House) |
[2019] CSIH 38
Court of Session (Second Division, Inner House)
Lord Malcolm
Roxburgh; Office of the Advocate General appeared for applicants
Welsh; Harper MacLeod LLP appeared for respondent
[1] There are an increasing number of situations in which the Inner House is asked to grant permission to appeal to the Court of Session, for example from a decision of the Sheriff Appeal Court (under chapter 40 of the Rules of Court) or from the Upper Tribunal (under chapter 41). An applicant must lodge “proposed” grounds of appeal. If permission is granted, the actual grounds of appeal will then be lodged. In Khaliq v Gutowski [2018] CSIH 66 (a case regarding a decision of the Sheriff Appeal Court) when delivering the opinion of the court the Lord President (Lord Carloway) noted that there is no provision in the rules for the court to grant leave on restricted or specific grounds. “Accordingly the task for the procedural judge is simply to determine whether permission (simpliciter) should be granted or not.”
[2] The approach in Khaliq reflects general practice in the Court of Session. If the Sheriff Appeal Court were to grant leave on specific grounds, it is unlikely that the Inner House would consider itself disabled from considering other matters. If the Inner House is granting leave to a party to lodge an appeal to the UK Supreme Court, it does not attempt to direct which matters should or should not be considered by the UKSC. And if an Outer House judge is granting leave for a reclaiming motion, there is no tradition of granting leave for a challenge restricted to particular grounds.
[3] This opinion addresses applications for permission to appeal by the parties involved in a decision of the Upper Tribunal (Tax and Chancery Chamber) dated 5 December, [2018] BVC 526, namely HMRC and DCM (Optical Holdings) Limited. For the purposes of VAT, and in common with other opticians, DCM makes both taxable supplies of goods and exempt supplies of medical services. This gives rise to complexities as regards output tax chargeable and input tax recoverable. For present purposes it is not necessary to discuss the details of the parties' dispute. It concerns six appeals by DCM against six decisions and assessments of HMRC, each relating to a different time period. All six appeals were refused by the First-tier Tribunal. The Upper Tribunal allowed DCM's challenge regarding the decision on...
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