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The application of the principles in this case
The application of the principles in this case
In this case, the explanation for the delay relied upon is the pursuit of the FTT appeal. It might be said that once HMRC had clearly taken the jurisdiction point on 7 March 2022, Mr Houldsworth could have issued a protective judicial review application at that stage. However, I accept that there is a good chance that, had he done so, the judicial review would have been stayed pending the FTT’s decision on Ground 3 and matters would be no further forward:
On a limited review, I am persuaded that there was at least an arguable basis for the contention that the FTT could determine Ground 3. The FTT addressed the issue in a lengthy and detailed judgment which was reserved for six months.
The Tribunal Judge noted that “some of the arguments advanced were less straightforward to resolve than others” ([59]).
It is a well-established principle of public law that, ordinarily at least, judicial review is a remedy of last resort (paragraph 6.3.3 of the Administrative Court Guide).
As the Court of Appeal noted in R (Archer) v Revenue and Customs Commissioners [2019] EWCA Civ 1021, [92]:
“The authorities show that, although the time limit in CPR 54.5(1) is indeed strict, it is not applied unthinkingly, and in a suitable context the courts are willing to adopt a flexible and pragmatic approach … Where Parliament has provided a potential alternative remedy, such as that in section 222 , the court will if necessary ensure that the taxpayer is not prejudiced by taking advantage of it … As the guidance in Cowl emphasises, both sides are under a duty to act responsibly and to take all reasonable steps to ensure that judicial review proceedings are not prematurely pursued while other forms of dispute resolution are in progress.”
In addition to that explanation for the delay, the following factors support the conclusion that there is a good reason for extending time:
The argument as to the effect of IR20 is potentially of wider application than just Mr Houldsworth’s case.
As I explain below, I am satisfied that the claim is arguable and that it will have a significant financial impact on Mr Houldsworth.
I am not persuaded that the further three month delay from the FTT’s decision on 13 March 2024 to 6 June 2024 was inappropriate, involving as it did compliance with the Administrative Court pre-action protocol process.
I do not believe granting the extension of time will prejudice HMRC or good administration. HMRC has been fully alive to the issues and Mr Houldsworth’s complaint throughout. As I have stated, had judicial review been commenced earlier I think it likely proceedings would have been stayed pending the FTT’s decision as to its jurisdiction on Ground 3.
For these reasons, the application for an extension of time is granted.