Public Law analysis: The claimant had sought permission to appeal against a First-tier Tribunal (FTT) decision refusing her claim for leave to remain in the UK. She maintained that the FTT had wrongly recorded her oral evidence. Both the FTT and Upper Tribunal (UT) refused her permission to appeal after having checked the recording of her evidence. She was granted permission to claim judicial review of the UT’s refusal on the basis that the claim raised important points of practice. However, the parties and the court had overlooked section 11A of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). TCEA 2007, s 11A had been inserted by section 2 of the Judicial Review and Courts Act 2022. It came into force on 14 July 2022. TCEA 2007, s 11A ousts the supervisory jurisdiction of the High Court in judicial review proceedings, subject to a number of specific exceptions. It provides that a decision of the UT to refuse permission to appeal further is, subject to exceptions, final and not liable to be questioned or set aside in any other court. It thereby reversed the Supreme Court’s decision in Cart v Upper Tribunal. Rather than proceed to a full substantive hearing, a preliminary issue trial was conducted to determine whether the court had jurisdiction to determine the claim. Mr Justice Saini rejected the claimant’s attempts to argue that the TCEA 2007, s 11A ouster was somehow ineffective. He also carefully construed the ‘jurisdictional gateways’ in TCEA 2007, s 11A(4), being four circumstances in which such a claim for judicial review could proceed, finding that the claimant had not established the ‘a fundamental breach of the principles of natural justice’ gateway. Written by Jonathan Lewis, counsel at Monckton Chambers.

The full article, written by Jonathan Lewis, was first published by Lexis®PSL on 20 April 2023, please click to read A failed attempt to resurrect Cart judicial reviews.

News that the Italian authorities are assessing Meta for VAT on the supply of Facebook has thrown into the spotlight the issue of whether VAT is due on the supply of ‘free’ digital services. It is arguable that there is the requisite link between such supplies and non-monetary consideration in the form of user data. There are undoubtedly difficulties in determining the taxable amount but cases on ‘free’ banking services and a parallel claim against Meta in the Competition Appeal Tribunal indicate that methodologies are available. Although a legal pathway is possible, this will ultimately be determined by a policy choice on how to address the value of harvesting data.

Please click to read the article Is VAT due on the ‘free’ supply of digital platforms?

There is no doubt that the current UK government has achieved real changes to the Protocol that will reduce a number of the tax and customs issues, as George Peretz KC explains.

Please click to read the article The Windsor Framework and tax: same building, but a major renovation

This material was first published by Thomson Reuters in the British Tax Review as “R. (on the application of Cobalt Data Centre 2 LLP) v HMRC: a Cobalt white Elephant” [2023] B.T.R. 24 and is reproduced by agreement with the publishers.

“Summary

Section 298(1) of the Capital Allowances Act 2001 (CAA 2001) offered taxpayers Enterprise Zone allowances (EZAs) as an inducement to taking on the financial risks of newbuild industrial developments in disadvantaged areas, without a tenant. It extended their availability for a further 10 years after expiry of the 10-year life of an enterprise zone (EZ), provided that the qualifying “expenditure is incurred under a contract entered into within” the first 10 years (“the proviso”). According to the Court of Appeal1 changes made to a development, resulted in two building contracts with the claimed expenditure incurred under the second, being a “separate” contract
made too late to qualify for EZAs. The three judgments are not consistent with each other, and decided by different routes that the changes by their nature and extent were so different from the initial plan that they resulted in no EZAs. Taxpayers, having built what parliament wanted, are left to take the losses without the safety net of the statutory inducement. If the offer made to taxpayers was to be restricted, this should as a matter of certainty and fairness have appeared clearly in the statutory words. The decision may affect many other developments by taxpayers who ran financially unviable risks. Investors include those who have died leaving dependants, are in retirement, and on pensions…”

Please click to read full case note R. (on the application of Cobalt Data Centre 2 LLP) v HMRC: a Cobalt white elephant.

“Presented by Fried Frank’s Disputes team, the Distilling Disputes series uses data and graphics to draw out the strategic issues which clients face when litigating disputes in the English Courts and in international commercial and investment arbitration. The seventh edition provides an overview and insights into the pre-emptive remedies available in the English Courts. These are of particular relevance in the context of the pursuit of fraud claims, and this article highlights the toolbox of remedies available to potential claimants, including Freezing Orders, Disclosure Orders and Search and Imaging Orders, and other ancillary powers available to the English Courts.”

This edition is co-authored with Steven Gee KC.

Please click to read the full article on the Distilling Disputes Series.

Research Handbook on Legal Aspects of Brexit provides a comprehensive and coherent analysis of not only the Brexit process within the UK but also what it means for both the UK and the EU within the framework of their future relationship. Anneli Howard KC contributed on subsidies and competition law. Professor Panos Koutrakos contributed on trade agreements.

Introduction – The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States, what can be commonly procured, and how. The U.S. faces the obvious dilemma of needing to be seen to encourage EU initiatives which, if successful, would reduce reliance on the U.S. within the North Atlantic Treaty Organization (NATO) while also securing U.S. industry’s continued access to the European defense market(s). We explore the latest EU initiatives with a particular emphasis on implications for the U.S. For a useful introduction see Luke Butler, “Developments and Directions in EU Defense Procurement Regulation, and implications for the Defense Relationship between the EU and the UK.”

The article co-authored by Michael Bowsher KC, was published by Thomson Reuters.

Please click to read full article No Man Is An Island In Defense Procurement: Developments In EU Defense Procurement Regulation And Its Implications For The U.S..

The Ireland/Northern Ireland Protocol was at the heart of the Withdrawal Agreement negotiated with the EU in 2019 and was, as required by that agreement, incorporated into UK law. It has important tax implications, especially in the areas of VAT, customs duties and state aid. The Northern Ireland Protocol Bill would remove most of the Protocol from UK law, despite the UK’s treaty obligation. The government claims that the principle of ‘necessity’ gives a legal basis for that action in international law, but its argument is unconvincing. The Bill is likely to run into considerable opposition in Parliament, especially in the House of Lords. And if passed it would threaten a trade war with the EU with major implications.

Read the article Invention is the mother of ‘necessity’: the Northern Ireland Protocol Bill