The King on the application of MCML Limited and Victoria Foster vs Southwark Crown Court and HMRC

This case involved the judicial review of HMRC's applications for warrants based on mutual legal assistance requests from foreign authorities.

TLDR:

• MCML Limited and Victoria Foster applied for judicial review of HMRC's warrant applications.
• The High Court dismissed the applications and denied leave to appeal.
• The case involved issues of general public importance regarding mutual legal assistance.
• The court certified two questions of law for potential appeal to the Supreme Court.

The claimants, MCML Limited (formerly ED&F Man Capital Markets Limited) and Victoria Foster, sought judicial review of HMRC's applications for warrants based on requests for mutual legal assistance from the Danish state prosecutor and the Public Prosecutor in Cologne, Germany. The High Court had previously dismissed their applications for judicial review on 17 April 2024.

On 15 May 2024, the First Claimant applied for certification of two questions of general public importance and leave to appeal to the Supreme Court. These applications were accompanied by submissions from Clair Dobbin KC, counsel for the First Claimant. HMRC, represented by Nicholas Chapman, Tom Rainsbury, and Joanna Buckley, filed submissions in response.

The court considered whether the questions raised points of law of general public importance. The relevant guidance was provided by the Court of Appeal in R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851 and In re McGuinness [2020] UKSC 6. The court found that while the questions contained points of law of general public importance, they extended beyond these points to other issues not of general public importance.

The First Claimant suggested two questions for certification. The court found that each question contained a point of law of general public importance but also included other non-certifiable issues. The court invited the First Claimant to redraft the questions with a focus on the certifiable points of law.

The court examined the first question, which involved the test for disclosure in mutual legal assistance cases. The court agreed that the duty to disclose should be tested by reference to HMRC's or the Requesting Authority's knowledge. However, the court did not find the application of the test to the facts of the case to be a certifiable issue.

The second question involved the interpretation of paragraph 2(b)(ii) of Schedule 1 to PACE, concerning the 'bound to fail' test. The court found that the relevant belief for the test should be that of HMRC or the Requesting Authority. However, the court did not find the use of the phrase 'genuine belief' to be a certifiable issue.

The court refused leave to appeal, finding the merits of any appeal to be poor. The court concluded that the warrants were justified and that the outcome of any appeal would not be different.

Legal representatives: Clair Dobbin KC (instructed by Rosenblatt) for the First Claimant, Andrew Bird KC (instructed by Blatchfords LLP) for the Second Claimant, Nicholas Chapman, Tom Rainsbury, and Joanna Buckley (instructed by HMRC) for the Interested Party.

Judicial Panel: Lady Justice Whipple and Mr Justice Hilliard

Case Citation Reference: [2024] EWHC 1470 (Admin)