Wiseman v Borneman

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Guest,Lord Donovan,Lord Wilberforce
Judgment Date29 July 1969
Judgment citation (vLex)[1969] UKHL J0729-2
Date29 July 1969
CourtHouse of Lords
Wiseman and Another
Borneman and Others

[1969] UKHL J0729-2

Lord Reid

Lord Morris of Borth-y-Gest

Lord Guest

Lord Donovan

Lord Wilberforce

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Wiseman and another against Borneman and others, that the Committee had heard Counsel, as well on Monday the 9th, as on Tuesday the 10th, Wednesday the 11th, Thursday the 12th and Monday the 16th, days of June last, upon the Petition and Appeal of Cyril Robert Wiseman and Millicent Edith Wiseman (his wife), both of 76 Churchbury Road, Enfield, in the County of Middlesex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 1st of November 1967, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Roy Ernest Borneman, Sir William Carrington, Sir Richard Yeabsley, Andrew Hunter Carnwath, David Linton Pollock; and also upon the Case of the Commissioners of Inland Revenue, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 1st day of November 1967, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,


I agree with your Lordships that this appeal should be dismissed and I shall only add a few observations. Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principal degenerate into a series of hard and fast rules. For a long time the Courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.


In the great majority of cases which come before this tribunal all the relevant facts are known to the taxpayer and he has a full opportunity to set out in his statutory declaration all the facts which he thinks are relevant and also all arguments on which he relies. The only advantage to him of having a right to see and reply to the counter-statement of the Commissioners would then be that he could reply to their arguments. If the Tribunal were entitled to pronounce a final judgment against the taxpayer justice would certainly require that he should have a right to see and reply to this statement, but all the tribunal can do is to find that there is a prima facie case against him.


It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be a judicial determination of the question whether there is a prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.


Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him. I do not think that a case has been made out that it is unfair to proceed as the statute directs. But I do not read the statute as preventing the tribunal from seeking farther comment from the taxpayer if in any unusual case they think that they could carry out their task more effectively in that way. If they do that then they must allow the Commissioners to reply if so advised because any decision against the Commissioners is a final decision.

Lord Morris of Borth-y-Gest

My Lords,


That the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J. called "the justice of the common law" ( Cooper v. Wandsworth Board of Works 14 C.B. (N S.) 180, 194).


I approach the present case by considering whether in all the circumstances the Tribunal acted unfairly. It is not now suggested on behalf of the Appellants that they had a right to insist upon being heard orally before the Tribunal. But the Tribunal declined to furnish the Appellants with a copy of the counter-statement of the Commissioners and declined to allow the Appellants to submit written comments or arguments in regard to such counter-statement before proceeding to a determination. Was that in all the circumstances unfair?


In the careful address of counsel for the Appellants we were referred to many decisions. I think that it was helpful that we should have been. But ultimately I consider that decision depends upon whether in the particular circumstances of this case the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded.


It is important to have in mind exactly what the Tribunal had to do. There was no question of their being required to come to a determination as to whether section 28 applied to the Appellants in respect of the transactions in question. There was to be no decision comparable to that in Rex v. Housing Appeal Tribunal [1920] 3 K.B. 334. The decision or determination that the Tribunal had to make was whether there was or was not a prima facie case "for proceeding in the matter". That was a most limited decision. A decision that there was such a case would mean that it could not be said that the Commissioners must definitely not give a notice under subsection (3) because they would certainly be wrong if they gave one.


It may well be unlikely, if a taxpayer could not in his statutory declaration point to the elimination of even "a prima facie case for proceeding in the matter" that he would be able to do so in some rebuttal of anything contained in the Commissioners' counter-statement. But having said this I feel bound to express my prima facie dislike of a situation in which the Tribunal has before it a document (which might contain both facts and arguments) which is calculated to influence the Tribunal but which has not been seen by a party who will be affected by the Tribunal's determination. If there is a determination that there is no " prima facie case for proceeding in the matter" the taxpayer will be free of any risk that a notice under subsection (3) will be served upon him. The taxpayer might want to make use of resources which he will be retaining to meet any possible liability resulting from a notice. It is conceivable that some fact might be mistakenly set out in a counter-statement which unless corrected could result in a determination one way rather than another. These considerations lead me to the view that if the Tribunal decided in any particular case that it would be fair to allow the taxpayer to see a counter-statement and to comment on it, even though this would involve giving further opportunity to the Commissioners of counter inspection and counter comment (and of similar processes to such extent as any Tribunal could reasonably control), they would not be acting beyond their powers. This, however, still leaves the question whether in this case it should be held that the Tribunal acted unfairly. Here it becomes necessary to consider the statutory provisions. The Tribunal is a statutory body. There are statutory directions to it. While I have expressed the view that the statutory provisions must not be read as in any way absolving the Tribunal from doing at all times what in all the circumstances is fair, even at a stage when no decision finally adverse to the taxpayer is being made, it is, I think, a positive consideration that Parliament has indicated what it is that the Tribunal must do and has set out that the Tribunal must take into consideration three documents ( a) the declaration ( b) the certificate and ( c) the counter-statement if there is one. In his statutory declaration the taxpayer, who ought to know all about his affairs, will have been able to set out fully why he considers that section 28 does not apply. If the Tribunal follows the course that Parliament has defined and decides...

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