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
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
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.
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The claim followed the conclusion of two years of litigation (ORD 12/0035 & ORD 12/0034) between the parties in respect of the Bank's contractual claim for amounts owed by TSEL to the Bank pursuant to certain business loans.
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