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Legal test and claimant’s grounds
Legal test and claimant’s grounds
The Upper Tribunal has summarised the relevant principles applying to disclosure and the duty of candour in judicial review cases in R (on the application of Rettig Heating Group UK Ltd) v HMRC [2024] UKUT 315 (TCC) at [17] and [18].
The test for disclosure is whether in the given case, "disclosure appears to be necessary in order to resolve the matter fairly and justly" (Tweed v Northern Ireland Parades Commission [2007] (HL(NI)) 1 AC 650 at [3]).
The duty of candour as explained by the Court of Appeal in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409 (at [50]) is:
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"... a very high duty on public authority respondents... to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide”.
The judicial review grounds the claimant says are relevant to its application for disclosure application, are summarised as follows:
HMRC misdirected itself in law. This concerns whether“ reasonable disclosure” (as defined in section 20(5) Finance Act 2020) was made (Ground 1).
HMRC acted unreasonably or irrationally in deciding in refusing repayment on the basis of a lack of “reasonable disclosure” (Ground 2).
The claimant argues HMRC have not complied with the duty of candour and that in the circumstances specific disclosure is required for the fair and just resolution of the issues. Two discrete categories of disclosure are sought which I deal with in turn.