Taylor Clark Leisure Plc V The Commissioners For Her Majesty's Revenue And Customs
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord President,Lord Justice Clerk |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] CSIH 32 |
| Published date | 24 April 2015 |
| Date | 23 April 2015 |
| Court | Court of Session |
| Docket Number | XA166/14 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 32
XA166/14
Lord President
Lord Justice Clerk
Lord Menzies
OPINION OF THE LORD PRESIDENT
in the Single Bill on behalf of the Applicant
in the application by
TAYLOR CLARK LEISURE PLC
Applicant;
against
THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS
Respondents:
For the applicant: Simpson QC; Burness Paull
For the respondents: Young QC; Solicitor to the Advocate General
For the Faculty of Advocates: The Dean of Faculty (Wolffe QC), Ms Hood
For the Law Society of Scotland: Lindsay QC; Balfour & Manson
23 April 2015
Introduction
[1] The applicant seeks leave to appeal against a decision of the Upper Tribunal (Tax and Chancery Chamber). The application will be heard on 1 May.
[2] The applicant has enrolled the following single bill.
“On behalf of the applicant, and given her involvement in the matter since 2009 leading ultimately to the hearings before the First Tier Tribunal and the Upper Tier Tribunal, and for the assistance of the court, for the court to exercise its discretion to grant permission for Ms Philippa Whipple QC, barrister, One Crown Office Row, London, England to appear and represent the applicant before your Lordships in the Inner House at the application for leave to appeal hearing scheduled to take place on 01 May2015 and for any subsequent appeal hearing or such other order as your Lordships deem fit.”
The applicant has amended the motion to the effect that, if Ms Whipple should appear before this court, her appearance should be subject to the conditions that (i) she is assisted by a practising member of the Faculty of Advocates; and (ii) there is lodged in process a certificate by the Bar Council of England and Wales vouching Ms Whipple’s status as a practising Queen’s Counsel and her good standing. Such a certificate would vouch that Ms Whipple was adequately covered by professional indemnity insurance. The second of these conditions would be unnecessary in my view.
[3] The single bill is opposed. In view of the significance of it, we invited the Dean of Faculty, as leader of the Bar, and the Law Society of Scotland, as representing solicitors who have rights of audience in this court, to make written submissions to us and, if so advised, to appear at the hearing.
The background
[4] The present litigation concerns the applicant’s entitlement to repayment of Value Added Tax said to have been overpaid for many years. The case was heard by the First Tier Tribunal and by the Upper Tribunal in Edinburgh. Before both Tribunals Ms Whipple appeared with Mr Philip Simpson, of the Scottish Bar. The proposed appeal seems to involve a straightforward question as to the meaning of section 80 of the Value Added Tax Act 1994. Ms Whipple is a specialist in VAT law and, having conducted the case in the Tribunals, is familiar with the issues. The single bill craves the court inter alia “to exercise its discretion to grant permission for [Ms Whipple] to appear.” In presenting it, Mr Simpson QC, as he now is, refrained from using the expression “rights of audience”. He said that he merely sought permission for Ms Whipple to appear. In my view, the distinction is meaningless. In reality this motion is about rights of audience.
[5] Because Ms Whipple is qualified in a different jurisdiction within the United Kingdom and not in a different member state, she is not entitled to appear by virtue of article 5 of Directive 2005/36/EC as implemented by the European Communities (Regulation of Professional Qualifications) Regulations 2007 (SI No 2781). Had she been subject to the 2007 Regulations in this matter, her right of appearance would have been conditional on her providing inter alia evidence of her professional status and qualifications, evidence of professional indemnity insurance and proof of nationality.
[6] If Ms Whipple had no legal qualification and was acting gratuitously, and if the applicant had no other legal representation, this court would have discretion to permit her to appear (Rules of the Court of Session 1994, chap 12B).
[7] If a member of the Scottish Bar were instructed to appear before a court in England and Wales, that member would be entitled to apply to the Bar Council of England and Wales for temporary admission to the Bar. In such an event the individual would have to provide a certificate from the Dean of Faculty confirming his status as a practising member, the date on which he began to practise; and his fitness to be called to the English Bar; and would have to pay a fee.
College of Justice Act 1532, c51
[8] The College of Justice Act 1532 established the College of Justice and is the foundation of this court. It says this:
“That na man enter to pley, bot parties conteined in their summoundes and their procuratoures, gif they will ony have.” (Glendook, The Laws and Acts of Parliament Made by King James the First, and his Royal Successors, Kings and Queen of Scotland in two Parts, Part 1 (1681), at 217)
Submissions in support of the Single Bill
[9] The single bill rests on two propositions: (1) that this court’s inherent power, the existence of which is not in dispute, entitles it to grant the single bill; and (2) that in the circumstances it should exercise its discretion in the applicant’s favour.
[10] On the first point, Mr Simpson contends that the decision of this court in Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd (2011 SC 115 (the UK Bankruptcy case)) that it was not within the inherent power to extend rights of audience rests on a misunderstanding of the Act 1532 c 51. He submits that the provisions of that Act are equivalent to subordinate legislation; and that no other statutory provision precludes the court’s granting of rights of audience to any suitable person in its discretion. He accepts that, on that view, in a medical negligence case the court could allow a party’s case to be presented by a surgeon.
[11] On the second point Mr Simpson relies on Ms Whipple’s expertise and on her involvement in the case from the outset. He also points out that if he were to lead in the appeal, the instruction of new counsel to assist him would cause duplication of work and wasted costs; that the point in issue relates to a section in a UK-wide statute; and that the litigation proceeded in Scotland only for reasons of procedural convenience.
[12] Mr Simpson too is an expert in tax matters. He confirmed that the applicant does not suggest that if he were to lead in the appeal, the applicant’s case would not be presented competently or properly; or that the applicant’s article 6 rights would be infringed. He accepts that the granting of the motion would have the strange result that the case for the appellant would be presented by a counsel who is not a silk in Scotland but with a junior who is.
The decision in the UK Bankruptcy case
[13] In this case this court concluded that its inherent power did not extend to the granting of rights of audience in this court. It held that the Act 1532 c 51 is not in desuetude; that from that and several subsequent statutes it is clear that whenever rights of audience in this court have been extended, that has been done by the legislature and not the court. It concluded that the possibility of further extension of rights of audience should be a matter for the Parliament, after due process of consultation, rather than by ad hoc judicial decision (at paras [7]-[8]; [33]-[37]; [39]-[43]).
Conclusions
Does the inherent power extend to the granting of rights of audience in this court?
[14] In my opinion, the decision of this court in the UK Bankruptcy case (supra) was sound. I am confirmed in the conclusions that I expressed in that case by the fact that in section 30 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Parliament gave power to the Secretary of State to make regulations regarding the granting of rights of audience to practitioners from England and Wales and Northern Ireland, but that that power was not exercised.
[15] Counsel for the applicant submits that we erred in that decision by failing to recognise that the Act 1532 c 51 was merely subordinate legislation. In that case we relied, as the court had relied in Gordon v Nakeski-Cumming (1924 SC 939), on the version of the Act 1532 c 51 set out in the Glendook Duodecimo edition of 1681 of the Acts of the Parliament of Scotland. Counsel has pointed out that that provision was not part of the Act of 1532. It was one of the rules duly made by the Lords of Session under powers delegated to them by James V (Hannay, Acts of the Lords of Council in Public Affairs 1501-1554 (1932) p 373; Acts of Sederunt of the Court of Session 1532-1553 (1811), Ilay Campbell, ed, p 2). These rules were later ratified by James V by letter of 10 June 1532 and by statute of 1540 c 93 (sc College of Justice Act 1540; Hannay, op cit, p 377ff). Moreover, the rules were later amended by the court by Statut of Sessione in 1590 to the effect of increasing the authorised number of advocates to 50 (Hope’s Major Practicks, Stair Society, vol 4 (1938), ed Clyde). In keeping with that view, the Statute Law Database omits the rule from its published version of the Act 1532 c 51. From this counsel for the applicant concludes that we are free to modify the rule by the use of the inherent power.
[16] I accept the force of Mr Simpson’s interpretation of the sources; but in my view his conclusion does not follow. The question whether the rule has the status of primary or secondary legislation is neither here nor there. What matters is that, subject to certain statutory modifications in the modern era (cf UK Bankruptcy case, paras [13]-[16]), the rule has, by common understanding over the centuries, been part of the law of Scotland. In my view, it is now an established principle of the Scottish constitution.
[17] I therefore remain of the view that this court...
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