Adducing fresh evidence in Judicial Review

19 Mar 2014

Bedell Cristin recently advised and acted for a Jersey company (the "Company") in respect of a challenge to a notice issued pursuant to Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 (the "Regulations") by the Comptroller of Income Tax in Jersey.

Following a change to the Regulations, enacted by the Taxation (Exchange of Information with Third Countries) (Amendment No. 7) (Jersey) Regulations 2013 in November last year, any challenge to notices issued under the Regulations was required to be by way of judicial review.

Leave was not granted in this instance, as the Comptroller was found to have acted reasonably following the standards and thresholds applied to his conduct in the recent Court of Appeal decision Volaw Trust and Corporate Services Limited and Larsen v Comptroller of Taxes ("Larsen") and the Royal Court decision in APEF Management Company 5 Limited v Comptroller of Taxes. However, this case presented an interesting preliminary issue concerning the ability of the Comptroller, as the public authority in a judicial review, to adduce new "fresh" evidence into the proceedings which was not before him at the time he made his decision to issue the notice.

The Comptroller argued that the additional evidence was "truly dispositive" as that phrase was used in Larsen and subsequently APEF, and as such ought to be admissible as evidence even though it was not before him at the time, and could not have therefore formed part of his decision making process.

The Company argued that Larsen and APEF decisions were judgments relating to administrative appeals in accordance with Part 15 of the Royal Court Rules 2004 and not applicable to rules concerning evidence admissible in a judicial review. The purpose of a judicial review is to consider the decision making process of the public authority in question. It is not an appeal of the decision itself.  The new evidence the Comptroller wished to introduce was obtained after the event and had no bearing on his decision making process.

The Court ruled that the new evidence was not admissible in the proceedings. It confirmed that as the application was a judicial review, one could not apply the rules concerning admissibility of new evidence in Larsen and APEF, which concerned administrative appeals. The Court followed the English authorities concerning admissibility of fresh evidence, which provide that fresh evidence is only admissible in limited circumstances, and held that the evidence sought to be included by the Comptroller did not fall within those circumstances.

For further information or to obtain a copy of the judgement, please contact Dina El-Gazzar or Mark Taylor.