Chapter 12 Notes on key cases

Tribunals

Edwards v Bairstow [1956] AC 14: The classic case on review of decisions applying the law. Bairstow seized an opportunity to buy a spinning plant at the low price of £12,000; he sold it as soon as he could at a profit of £18,000. His tax liability depended on whether the venture was an ‘adventure or concern in the nature of trade’. The Inland Revenue assessed the profit as subject to tax; the General Commissioners held that the venture was not an adventure in the nature of trade. On an appeal on a point of law by the Revenue, a High Court judge upheld the Commissioners’ decision on the ground that the issue was a question of fact on which he could not overturn the view of the Commissioners unless it was perverse. The House of Lords overturned that decision. As to the application of the law to the facts, Lord Radcliffe held that if (as in this case) the law does not give a precise definition of the activity that is taxed, then there may be ‘many combinations of circumstances in which it could not be said to be wrong to arrive at a conclusion one way or the other. If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination of the Commissioners, Special or General, to the effect that a trade does or does not exist is not "erroneous in point of law"; and, if a determination cannot be shown to be erroneous in point of law, the statute does not admit of its being upset by the Court on appeal.’ But the House of Lords held in favour of the Revenue on the ground that the deal was undeniably an adventure in the nature of trade. In Lord Radcliffe’s view, ‘the only reasonable conclusion on the facts found is inconsistent with the determination come to’.
On review of ‘primary facts’, Viscount Simonds stated obiter the classic doctrine that the findings of the Commissioners could not be overturned in an appeal on a point of law unless they ‘acted without any evidence or upon a view of the facts which could not reasonably be entertained’.
Moyna v Work and Pensions Secretary [2003] UKHL 44: Mrs Moyna applied for the lowest form of disability living allowance, under s 72(1)(a)(ii) Social Security Contributions and Benefits Act 1992. Her claim was rejected, as was her appeal to the tribunal, and her further appeal to the commissioner (an appeal tribunal) on a question of law. She won in the Court of Appeal, but then the House of Lords ultimately rejected Mrs Moyna’s claim. The House of Lords affirmed that where an appellate court has jurisdiction to entertain appeals from a tribunal only on questions of law, it will not quash a decision as to how to apply the law to the facts of the case, unless it falls outside ‘the bounds of reasonable judgment’ [28].
R (Cart) v Upper Tribunal [2011] UKSC 28: First claim for judicial review of an Upper Tribunal (UT) decision not to hear an appeal from a First-tier Tribunal decision. The Supreme Court opened the gates for such complaints, holding that ‘the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected’ [57]. Judicial review of a refusal of permission to appeal by the UT is available if it would raise some important point of principle or practice, or there is some other compelling reason for it. That test for judicial review of decisions on permission to appeal by the UT is the same as the legal test for appeals from the UT, where the TCEA 2007 provides for an appeal to the Court of Appeal (see [27]). So there is an appeal to the Court of Appeal from UT decisions other than a refusal of permission to appeal from the FTT (under the TCEA 2007), and for a refusal of permission to appeal from the FTT, there is judicial review (under Cart) with the same effect as an appeal, but to the High Court, instead of to the Court of Appeal.