Court of Appeal - judicial review.

[2022]JCA196

Court of Appeal

22 September 2022

Advocate J. Harvey-Hills for the Applicant.

Advocate G. G. P. White for the Respondent.

judgment

the President:

1.        On 27 May 2022, the Deputy Bailiff refused the Applicant’s application for leave to apply for judicial review in respect of a notice issued (“the Notice”) under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 (“the 2008 Regulations”).  He also held that Regulation 14A of the 2008 Regulations applied to any appeal from his decision, such that an appeal lies only to the Judicial Committee of the Privy Council with the leave/permission of the Judicial Committee of the Privy Council.  Detailed reasons for the decision were handed down on 10 August 2022. 

2.        We are asked to determine as a preliminary issue whether an appeal may lie to the Court of Appeal, notwithstanding the provisions of Regulation 14A of the 2008 Regulations.

3.        Regulation 14 and 14 A of the 2008 Regulations state as follows:

14       Judicial review: limitations

(1)       Despite any Rule made to the contrary under the Royal Court (Jersey) Law 1948, an application for leave to apply for judicial review may not be made –

(a)        by a taxpayer, against a requirement made of that taxpayer under Regulation 2, later than 14 days after the requirement arose under Regulation 2;

(b)        by a person, against a requirement made of that person in a third party notice, later than 14 days after the third party notice was given to that person under Regulation 3; or

(c)        by a taxpayer, against a requirement made of a third party in respect of that taxpayer, later than 14 days after the copy of the third party notice was given to that taxpayer under Regulation 3.

(2)       An application for judicial review may not be made on any of the following grounds –

(a)        that the competent authority for Jersey has not provided the third party notice to a taxpayer within the time limits specified in Regulation 3(4);

(b)        that the competent authority for Jersey has not provided the third party notice to the taxpayer on a ground mentioned in Regulation 3(5);

(c)        that the competent authority for Jersey has prohibited a third party from disclosing the third party notice to the taxpayer, or any information relating to the notice to the taxpayer on a ground mentioned in Regulation 3(5); or

(d)        that the competent authority for Jersey has required tax information to be authenticated in a manner that is not required for the purposes of Regulation 10B(3).

(3)       Despite any application for leave to apply for judicial review being made –

(a)        a taxpayer or a third party shall provide the competent authority for Jersey the information requested in the notice served under Regulation 2 or 3, as the case may be, within the time limits specified in the notice; but

(b)        the competent authority for Jersey shall not provide to the competent authority for the third country the tax information obtained under these Regulations unless –

(i)         the application for leave to apply for judicial review or any subsequent application for judicial review is dismissed,

(ii)          the application for leave to apply for judicial review or any subsequent application for judicial review is withdrawn or discontinued, or

(iii)         the competent authority for Jersey is permitted to do so by the Royal Court.

(4)       In all other respects the Royal Court shall apply the principles applicable on an application for judicial review.

14A      Further appeal to Privy Council

(1)       An appeal lies to the Privy Council from a decision of the Royal Court on a judicial review to which Regulation 14 applies.

(2)       An appeal under this Regulation lies at the instance of –

(a)        taxpayer, against a requirement made of that taxpayer under Regulation 2;

(b)        a person, against a requirement made of that person in a third party notice;

(c)        a taxpayer, against a requirement made of a third party in respect of that taxpayer; or

(d)        the competent authority for Jersey.

(3)       An appeal under this Regulation lies only with the leave of the Privy Council.

4.        The starting point for the consideration of the Court is Article 12 of the Court of Appeal (Jersey) Law 1961 (“the 1961 Law”) which states so far as is relevant:

(1)       There shall be vested in the Court of Appeal all jurisdiction and powers hitherto vested in the Superior Number of the Royal Court when exercising appellate jurisdiction in any civil cause or matter.

(2)       Subject as otherwise provided in this Law and to rules of court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the Superior Number of the Royal Court when exercising original jurisdiction in any civil cause or matter.

5.        As explained in Ellis v Attorney General [2020] (1) JLR 268, at paragraph 19 this court has jurisdiction to hear and determine appeals from “any judgment or order” of the Royal Court “when exercising jurisdiction in any civil cause or matter” (emphasis added in both cases).  The judgment of the Deputy Bailiff in this case is plainly a judgment of the Royal Court in a civil cause or matter.  As such, this court has jurisdiction to hear an appeal, unless that jurisdiction has been excluded by some other legislative provision.  

6.        The possibility of such exclusion is contemplated by the opening words of Article 12(2): “Subject as otherwise provided in this Law or in any other enactment …”.  The question for this Court is, accordingly, whether the effect of Regulation 14A of the 2008 Order is to deprive this Court of its jurisdiction in this case.  In answering that question, the Court will need to find clear legislative language before concluding that its jurisdiction has been excluded. 

7.        On a linguistic analysis Regulation 14A is capable of being read (as it was by the Deputy Bailiff) as referring to any decision of the Royal Court on any application to which Regulation 14 applies, including an application for leave to apply for judicial review. 

8.        However in our view that is not the only possible interpretation of the language used.  We consider that the words “a judicial review to which Regulation 14 applies” may permissibly be read narrowly as referring only to a judicial review strictly so called; that is an application where leave to apply for judicial review has been granted. 

9.        We consider that this narrower construction is the more natural reading of the language of Regulation 14A, against the context of the distinction, drawn in Part 16 of the Royal Court Rules and recognised in Regulation 14 of the Regulations, between an application for leave to apply for judicial review, and the application for judicial review itself.  Further, we consider that it is more in keeping with the purpose of Regulations 14 and 14A of the 2008 Regulations.  The provisions are clearly intended to provide for simplified and streamlined procedures intended to secure the timely provision of information in aid of mutual legal assistance.  

10.      Our attention was also drawn to the legislative history of Regulations 14 and 14A, but we did not derive any assistance from the earlier versions of these provisions: they contained a comparable ambiguity to that in the legislation as it currently stands, and did not provide any clear answer to the question in hand. 

11.      Were it the case that applications to appeal a refusal of leave to apply for judicial review under Regulation 14 could only be heard by the Judicial Committee of the Privy Council, that would threaten to introduce untoward delay in the process since the process for granting special leave is likely to result in significant delay.  If special leave were to be granted an appeal to the Judicial Committee would be likely to take even longer.  The appeal to the Judicial Committee, if successful, might result in the application for judicial review being remitted to the Royal Court with further loss of time.  

12.      We have therefore concluded that not only is there no clear legislative language contained in Regulation 14A of the 2008 Regulations that would deprive the Court of Appeal of its general jurisdiction under Article 12 of the 1961 Law but also that Regulation 14A properly construed applies only to applications for judicial review, strictly so called.  An application to judicial review is a juristic process that is distinct from a prior application for leave to apply for judicial review: see Part 16 of the Royal Court Rules 2004.  If the legislature had intended to prohibit interlocutory appeals to the Court of Appeal in respect of applications for leave, it would have been open to it to use language that made that purpose clear, for example by referring in Regulation 14A to “any decision of the Royal Court on any application to which  Regulation 14 applies”.  It chose not to do so despite an extended process of legislative review and amendment leading to the form of the 2008 Regulations currently in force. In the circumstances we consider that Regulation 14A does not prohibit interlocutory appeals to the Court of Appeal in respect of applications for leave and was not intended to do so.  

13.      Given this conclusion we direct that any applications for leave to appeal in this case should be heard as a rolled up hearing so that the parties are in a position to argue the substantive merits of any appeal if leave is granted at a single hearing before the Court of Appeal.  

Authorities

Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008.

Court of Appeal (Jersey) Law 1961.

AG v Ellis [2020] (1) JLR 268. 

Royal Court Rules 2004.