THE QUEEN ON THE APPLICATION OF S&S CONSULTING SERVICES (UK) LIMITED v THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS [2021] EWHC 3174 (Admin)

"… (2) Subject to sub-paragraph (5) below, where the Commissioners are satisfied that a registered person has ceased to be registrable, they may cancel his registration with effect from the day on which he so ceased or from such later date as may be agreed between them and him. … (5) The Commissioners shall not under sub-paragraph (2) above cancel a person's registration with effect from any time unless they are satisfied that it is not a time when that person would be subject to a requirement, or entitled, to be 7 registered under this Act."

"34. In order to be considered proportionate to the objective of preventing evasion, a refusal to identify a taxable person by an individual number must be based on sound evidence giving objective grounds for considering that it is probable that the VAT identification number assigned to that taxable person will be used fraudulently. Such a decision must be based on an overall assessment of all the circumstances of the case and of the evidence gathered when checking the information provided by the undertaking concerned."

"Using the Ablessio principle HMRC can, in certain circumstances, either refuse to allow a taxable person to register for VAT or deregister a taxable person from VAT where following an overall assessment of all the facts of the case there is objective evidence to conclude that the taxable person is solely or primarily: committing a VAT fraud participating in transactions connected with VAT fraud ie they knew or should have known that their transactions are connected with VAT fraud intending on committing VAT fraud or participating in a fraudulent scheme"

"1/. On the invalid invoices I note your recent emails and telephone calls suggesting this needs my immediate attention. I can't assist you drafting the wording of what should be contained within a sales invoice. This is covered by the statutory requirements and must include a description. I note that I raised this with you and the business in my letter of 21st July 2020. I then reminded you of this in the email of 4th December 2020, requested that you stop using invalid sales invoices immediately and requested sight of the revised sales invoice format. I note that you have only now contacted me because invalid sales invoices received by customers have been queried 2/. HMRC have compared the records you have supplied with other parties in the supply chain and in a number of cases there are anomalies. To date I can compare your records directly to two of your customers. Of those, in both cases there are differences in the records they show when compared to yours. In the one instance the sales declared by you fall short with a suppression rate of 178%. Effectively only one third of your sales have actually been declared on these transactions. 3/. In some instances although you declare sales on an invoice basis a self-billing scheme is in operation with the self-billed sales invoices not having been advised or notified to me at all. I will need to see all such self-billing arrangements and the corresponding invoices that have been notified. 4/. In several instances payments are made to different bank accounts than that declared by you. I note that you stated there was one business bank account with the one named signatory. I am aware that this is not correct and the business receives sales into multiple bank accounts. I will require copies of all the undeclared bank accounts and an explanation. 5/. Overall on the evidence I presently hold your sales are being under declared by the 178%. I propose to allow the standard 21 days for you to provide the full business records including the undeclared bank statements. Once I have reviewed those I will adjust any under declaration that occurs. If you are unable or unwilling to provide the evidence I will assess using the figure of 178% as an uplift on each period to date."

"As you are aware I have been checking the VAT position of S & S Consulting Services (UK) Ltd. I have obtained information that leads me to believe that S & S Consulting Services (UK) Ltd is using its VAT registration solely or principally for fraudulent purposes. It is HMRC's position that the right to VAT registration or remain registered for VAT does not arise when the principal aim of that registration is to facilitate a fraud on the VAT system. S & S Consulting Services (UK) Ltd, VAT registration [number provided] will be deregistered with effect from 27' August 2021."

"The CJEU said that VAT registration may be refused where there is 'sound evidence giving objective grounds for considering that it is probable that the VAT identification number assigned to that taxable person will be used fraudulently.' (para 34). The Court further said that this would be the case in Ablessio if the evidence indicated that the registration of Ablessio '..might result in misuse of the identification number or other VAT fraud.' (para 38). Although any decision to refuse a registration 'must be based on an overall assessment of all the circumstances of the case...' (para 34) Whilst the judgment in Ablessio concerned the refusal to register a person for VAT rather than cancelling an existing registration, it clearly supports HMRC's view that HMRC may cancel a trader's VAT registration where, after conducting an overall assessment of all the circumstances of the case, HMRC have concluded that the trader is using its VAT registration for fraudulent purposes or will do so in the future."

"Whilst S & S Consulting Services (UK) Ltd may satisfy the formal requirements for VAT registration under Schedule 1 of the VAT Act 1994, HMRC considers that the VAT registration is being used to facilitate VAT fraud, and in accordance with the principles recited above, its VAT registration should be cancelled. Consequences of this decision S & S Consulting Services (UK) Ltd will be deregistered with effect from 27th August 2021. As of that date S & S Consulting Services (UK) Ltd may not issue tax invoices charging VAT or showing a VAT registration number. S & S Consulting Services (UK) Ltd must not quote the cancelled VAT number for the purposes of new transactions with suppliers or customers."

"30. I was shocked when, on 27 th August 2021, the Defendant issued the Notice [of deregistration]. I add that the Company has not received a copy of the Notice in the post, from HMRC, but I was copied into the email. The Notice alleged that the Company was using its VAT registration solely or principally for fraudulent purposes. I was shocked to tears to read that because it is absolutely not true. As a business, we have tried our very best to do everything above board and to be compliant with all the rules. From what I can see, the Notice is based upon several statements and comments that are just wrong. Some of the points are matters that I have asked my advisors to comment upon as they are familiar with the relevant documents …"

"3. It is accordingly necessary to consider the grant of an interim injunction in the exercise of the court's jurisdiction under s 37 of the Senior Courts Act 1981 whether pending the final determination of the Claimant's appeal by the First Tier Tribunal or to some intermediate date. 4. The approach to be taken is that set out in American Cyanamid v Ethico n albeit having regard when considering the balance of convenience to the importance of the public interest in the Defendant being able to enforce the law and to take action to prevent fraud. In that respect I accept the Defendant's submission that the applicable guidance was provided by Underhill LJ in CC & C Ltd v HMRC [2015] 1 WLR 4043 namely that it will only be appropriate for an interim injunction to be granted in such cases where it can properly be said that the decision of HMRC is challenged as being unlawful on a basis akin to abuse of power by that body. 5. Here I accept that the Claimant has shown a serious issue to be tried as to the correctness of the Defendant's decision and that it has surmounted the low hurdle of showing that there is a serious issue to be tried as to the reasonableness of that decision. However, it has not shown a serious issue, let alone demonstrated to any further standard, that the decision was flawed as being an abuse of power or otherwise wholly outside the scope of the Defendant's powers. 6. I also accept that the Claimant has shown to a sufficient level that damages would not be an adequate remedy and that there is, at the lowest, a real prospect that the deregistration of the Defendant will bring about its financial collapse. 7. However, I am not satisfied that the grant of an injunction is justified having regard to the balance of convenience. In considering that aspect I take account of the strong public interest set out above and the approach laid down in the guidance recited above. Here the Claimant has an appeal to the First Tier Tribunal which the Defendant is content to see expedited; the statutory appeal does not provide for a suspension of the deregistration; and although the Claimant has shown to the necessary level a challenge to the correctness of the Defendant's decision it has not shown any basis for concluding that there was an abuse of power or unlawfulness of the kind necessary for an interim injunction to be granted. 8. Accordingly, the application for interim relief falls to be refused."

"62. In the context of civil litigation, the well-known principles deriving from Lord Diplock's speech in American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 (at p.407) were summarized by Christopher Clarke J., as he then was, in Sabmiller Africa B.V. v East African Breweries Ltd. [2009] EWHC 2140 (Comm) (at paragraphs 47 and 48). As he explained, the 'general approach' is for the court to ask itself '[whether] there is a serious question to be tried', and, if there is, 'whether the claimant would be adequately compensated in damages and whether the defendant would be in a financial position to pay them'. If so, 'no injunction should normally be granted"

'Turning then to the balance of convenience, it is necessary in cases in which a party is a public authority performing duties to the public that "one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed:" see Smith v. Inner London Education Authority [1978] 1 All E.R. 411, 422, per Browne L.J., and see also Sierben v. Westminster City Council (1987) 86 L.G.R. 431. Like Browne L.J., I incline to the opinion that this can be treated as one of the special factors referred to by Lord Diplock in the passage from his speech [in American Cyanamid] which I have quoted. In this context, particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being enforcing the law. … .' 64. Lord Goff went on to say (at p.674A-D): '

"…only come down in favour of restoring a trader to the register on an interim basis where, as he put it in his skeleton argument, 'there is a case of irrationality on the part of HMRC which is sufficiently strong to amount to capriciousness or bad faith [and] that case is at least strong enough to justify permission to apply for judicial review notwithstanding the availability of the statutory remedies.' In his oral submissions he said that relief should only be granted where a claimant had shown an arguable case that HMRC had behaved so 'outrageously' that the Administrative Court was entitled to grant a remedy which was not provided under the statutory scheme. Such an approach was consistent with the balance of injustice test because it was necessary in striking that balance to take into account the public interest and, more particularly, the fact that Parliament - for policy reasons which it was for it to judge but which were well understandable - had intended to give HMRC a power of summary revocation which could only be challenged to a limited extent. He submitted that no arguable case had been shown of any such egregious conduct on the part of HMRC as would justify this court in intervening."

'In R v Inland Revenue Comrs, Ex p Preston [1985] AC 835 Lord Scarman said, at p 85: '

'In In re Vandervell's Trusts [1971] AC 912 ., 933, Viscount Dilhorne said: 'but where the correctness of an assessment, and so the liability to pay income tax or surtax, is challenged, that can only, in my opinion, be decided by the special or general commissioners.'

"40. Mr Jones [counsel for the company] submitted that although the claimant had framed its claim as one for judicial review it had not in fact been necessary to do so: the claim could have been formulated as a free-standing claim for interim relief 'in aid of the tribunal proceedings'. In so far as he was relying on the difference in the form of the proceedings, I do not think that this submission assists him. The principle identified above is not peculiar to claims for judicial review but applies to any claims in the High Court the effect of which is to usurp the role of a tribunal designated by statute to determine claims of the kind in question: see the long line of cases originating with Barraclough v Brown [1897] AC 615 and culminating in Autologic Holdings plc v Inland Revenue Comrs [2006] AC 118 ."

"43. I do not therefore believe that the court is entitled to intervene to grant interim relief where the registration of a trader in duty-suspended goods is revoked simply on the basis that there is a pending appeal with a realistic chance of success. But it does not follow that there are no circumstances in which the court may grant such relief; and, as noted above, HMRC do not in fact so contend. The correct principle seems to me to be this. If a 'relevant decision' is challenged only on the basis that it is one to which HMRC could not reasonably have come the case falls squarely within section 16 of the 1994 Act, and the court should not intervene. However, where the challenge to the decision is not simply that it is unreasonable but that it is unlawful on some other ground, then the case falls outside the statutory regime and there is nothing objectionable in the court entertaining a claim for judicial review or, where appropriate, granting interim relief in connection with that claim. A precise definition of that additional element may be elusive and is unnecessary for present purposes. The authorities cited in the Harley Development case refer to 'abuse of power', 'impropriety' and 'unfairness'. Mr Brennan referred to cases where HMRC had behaved 'capriciously' or 'outrageously' or in bad faith. Those terms sufficiently indicate the territory that we are in, but I would sound a note of caution about 'capricious' and 'unfair'. A decision is sometimes referred to rhetorically as 'capricious' where all that is meant is that it is one which could not reasonably have been reached; but in this context that is not enough, since a challenge on that basis falls within the statutory regime. As for 'unfair', I am not convinced that any allegation of procedural unfairness, however closely connected with the substantive unreasonableness alleged, will always be sufficient to justify the intervention of the court: Mr Brennan submitted that cases of unfairness would fall within the statutory regime to the extent that the unfairness impugned the reasonableness of the decision. As I have noted above, the types of unfairness contemplated in the Preston case—which is the source of the use of the term in the Harley Development case—were of a fairly fundamental character. But since procedural unfairness is not relied on in this case I need not consider the point further. 44. In short, therefore, I believe that the court may entertain a claim for judicial review of a decision to revoke the registration of a registered excise dealer and shipper, and may make an order for 'interim re-registration' pending determination of that claim (subject, no doubt, to such conditions as it thinks fit), in cases where it is arguable that the decision was not simply unreasonable but was unlawful on one of the more fundamental bases identified above. Such cases will, of their nature, be exceptional. That approach may seem unfamiliar in as much as it involves making a distinction which it is not normally necessary to make between 'mere' unreasonableness and other grounds of public law challenge of the type identified above: indeed there are plenty of observations in the authorities to the effect that the various ways of formulating such a challenge tend to blur into one another (including, famously, by Lord Greene MR in Wednesbury itself: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 , 229). But I see no conceptual difficulty about making such a distinction where the circumstances call for it; and here it arises naturally from the way in which the jurisdiction of the tribunal is defined in section 16 of the 1994 Act. 45. Applying that approach, the answer in this case seems to me to be clear. On the limited materials so far available, Judge Keyser QC may have been right to acknowledge that there is an arguable case that HMRC's decision was one to which they could not reasonably have come. But I see no basis whatever for an argument that it amounted to an abuse of power or that it was improper or taken in bad faith …"

"47. It is for those reasons that I decided that this appeal should be dismissed. I should, however, like to add this. The view that I have taken of the law means that HMRC's power of revocation is indeed capable of A operating harshly, essentially for the reasons advanced by Mr Jones: if they make an unreasonable decision, the trader affected by their mistake will almost certainly suffer serious uncompensatable loss, which may sometimes be fatal to his business, before it can be corrected through the review or appeal mechanisms. It is all the more important, therefore, that they take all possible care to ensure that any such decision is well founded. The risk of B error is obviously increased if the trader has not been given an opportunity to draw to HMRC's attention, before the decision is taken, factual or other matters which they may have overlooked or mis-appreciated in their assessment of the grounds for revocation. I do not see why it should not be normal practice for a trader whose registration HMRC is contemplating revoking to be given prior notice of the intended decision, and the grounds for it, in the form of a "show cause" or "minded to" letter, with a limited time for response, before a final decision is taken. (Or the decision could be notified, but on the basis that it would not take effect for a limited period during which representations could be made.) Mr Brennan was asked in the course of oral submissions whether there was any reason why such a procedure could not be followed, but he was unable to suggest any. I could understand a concern about over-complicating the process of revocation; but in fact such a procedure would be substantially the same as the process of informal review which is already offered - with the crucial difference that it would occur before, rather than after, the decision had taken effect. I can also understand that there may be particular cases where HMRC reasonably take the view that the public interest requires the registration to be revoked without prior notice and with immediate effect; but in the light of the time taken to reach a decision in the present case it would be hard for them to maintain that that will always be so. None of this is directly pertinent to the present case because, as I have said, no case of procedural unfairness was advanced; and I need not therefore consider whether a failure to give prior notice of an intention to revoke might in an appropriate case constitute a sufficient unfairness to justify the intervention of the court. But I would encourage HMRC to give further thought to their procedures in this regard."

"It might be thought that another possible route was via article 1 of the First Protocol to the Convention on Human Rights and Fundamental Freedoms and section 6 of the Human Rights Act 1998, as canvassed by Lord Scott of Foscote in Jain v Trent Strategic Health Authority [2009] AC 853 . But [counsel for the claimant] said that it was doubtful whether registration would fall within the scope of the article: he may have had in mind R (New London College Ltd) v Secretary of State for the Home Department [2012] PTSR D21 [2012] EWCA Civ 51 ]."

"48. I agree with the reasoning and conclusions of Underhill LJ, whose judgment I have read in draft. I add a few observations of my own. 49. As Underhill LJ has explained Mr Brennan accepted that the court has jurisdiction to grant the injunction claimed. But "jurisdiction" is a slippery word. As long ago as 1915 Pickford LJ pointed out in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 563 (approved by the House of Lords in Fourie v Le Roux [2007] I WLR 320, para 25): "

"61… (i) The High Court has jurisdiction to grant an injunction maintaining registration pending appeal to the FTT, which has been revoked by HMRC, when a parallel challenge to that decision is made in judicial review proceedings. (ii) The jurisdiction should not be exercised simply on the basis that the person concerned has a pending appeal with a realistic chance of success. (iii) If the decision is challenged only on the basis that HMRC could not reasonably have come to it, the case falls within section 16 of the Finance Act 1994 and the court should not intervene. (iv) If the challenge to the decision is on some other ground outside the statutory regime the court may entertain judicial review or grant h interim relief. (v) A definition of the additional element needed is elusive but would include 'abuse of power', 'impropriety' and 'unfairness' as envisaged in Harley Development Inc v Comr of Inland Revenue [1996] 1 WLR 727 . Whilst on one reading, para 44 of the CC & C Ltd case [2015] 1 WLR 4043 might be thought to constrain the grant of relief to the types of case just referred to, I do not consider that could be a correct reading because Underhill LJ was avowedly not attempting an exhaustive definition of the additional element that might suffice."

"81. In my opinion, a statutory appeal against a refusal of approval which is unable to provide a remedy before an appellant has been forced out of business, rendering the appeal entirely academic (or theoretical or illusory in the language of the Strasbourg Court) is capable of giving rise to a violation of article 6 which the High Court would be entitled to prevent by the grant of appropriate injunctive relief under section 37 of the 1981 Act. To that extent, the exceptions enumerated by Underhill LJ in the CC & C Ltd case [2015] 1 WLR 4043 can be expanded to include cases in which a claimant can demonstrate, to a high degree of probability , that the absence of interim relief would violate its ECHR rights. Moreover, such an injunction need not be ancillary to a claim for judicial review of any decision of HMRC, although it might be. 82. It is sufficient to consider the arguments advanced before us by reference to article 6 and unnecessary to explore the altogether more complicated route of A1P1 because both parties coalesced around the proposition that it is the effectiveness of the appeal that would provide the necessary factual background even if an A1P1 argument could be advanced."

"85. A claimant seeking an injunction would need compelling evidence that the appeal would be ineffective. It would call for more than a narrative statement from a director of the business speaking of the dire consequences of delay. The statements should be supported by documentary financial evidence and a statement from an independent professional doing more than reformulating his client's stated opinion. Otherwise, a judge may be cautious about taking prognostications of disaster at face value. It should not be forgotten that a trader who sees ultimate failure in the appeal would have every incentive to talk up the prospects of imminent demise of the business, in an attempt to keep going pending appeal. Equally, material would have to be deployed which provided a proper insight into the prospects of success in an appeal. There is no permission filter for an appeal to the FTT. The High Court would not intervene in the absence of a detailed explanation of why the decision of HMRC was unreasonable. It must not be overlooked that the FTT is not exercising its usual appellate jurisdiction in these types of case where it makes its own decision. Finally, there would have to be detailed evidence of the attempts made to secure expedition in the FTT and the reasons why those attempts failed. Whilst the jurisdiction exists to grant interim relief in this way, its use is likely to be sparing because steps (i) and (ii) identified above should provide practical relief in cases which justify it and the circumstances in which it would be appropriate for injunctive relief to issue will be rare."

"[5] ... concerns the position if HMRC either do not have power to permit trading pending the determination of an appeal to the FTT, or have power but decline to exercise it. In those circumstances, what interim relief, if any, can the High Court grant to ensure that the appeal to the FTT is not thwarted by the wholesaler going out of business whilst awaiting its determination? [6] The Court of Appeal held that the High Court was able to grant injunctive relief under s 37 of the Senior Courts Act 1981. Drawing on CC & C Ltd v Revenue and Customs Comrs [2014] EWCA Civ 1653 , [2015] 1 WLR 4043 ('CC & C Ltd'), it held that relief would only be granted in rare circumstances, but that this could include where there was a clear and properly evidenced claim that a failure to grant interim relief would render the appeal to the FTT illusory. This accorded with the position of HMRC. The wholesalers disagreed with the narrow limits imposed by the Court of Appeal on the scope for relief, but were refused permission to appeal to this court on that ground. Accordingly, the hearing before us began on the basis that the High Court had power to grant injunctive relief, exercisable in exceptional circumstances. [7] As a result of questions which arose in the course of oral argument about the High Court's power, we received further written submissions on the point, after the hearing. Although both parties continued to support the existence of a power in the High Court, the issue needs attention in this judgment."

"[63] In these circumstances, both parties understandably approached the appeal to this court on the basis that the High Court has power to grant injunctive relief where the wholesaler's art 6 rights would otherwise be infringed by the business ceasing to be viable before the FTT could consider the matter, rendering the appeal provided by statute entirely academic, and that the circumstances in which that power would be exercised were as set out in CC & C Ltd , as interpreted by the Court of Appeal in the present case. This court's refusal of permission to appeal in relation to the High Court's injunctive powers immunises that position from challenge in the present proceedings. Furthermore, it has not been the role of this court to review the established finding [by the judges at first instance] that the evidence produced by the wholesalers in support of their application for injunctive relief on an art 6 basis failed to meet the d required standard (see para [86] of Burnett LJ's judgment, set out above)."

"27. The claimant takes issue with the merits and the reasonableness of that decision. Mr Suleyman addresses in detail in his affidavit the lack of merit and unreasonableness of the decision; and Mr Jones took me through each factor relied on by Mr Elms to show how unreasonable a basis it was for inferring fraud, particularly having regard to the claimant's business model and modus operandi … 28. The merits and reasonableness of HMRC's decision are matters for the FTT. It may well be that Mr Jones' submissions have force, particularly having regard to the claimant's business model, but that is not a matter on which I have jurisdiction to decide. The avenue of challenge prescribed by statute is the FTT and it is well established that judicial review is not an available remedy where an alternative remedy, such as a statutory appeal, exists. Where Parliament has identified an appeal route to the FTT, as is the case here, it is only rarely that courts will allow judicial review to be used co-laterally to attack the appealable decision. Examples of cases where this has been permitted include cases where abuse of power or unfairness amounting to a breach of contract or breach of representation are alleged. That is trite law and was reflected i n the conclusions of the Court of Appeal recently in CC&C Limited v HMRC [2014] EWCA Civ 1653 which is binding on me. Though Mr Jones sought to distinguish CC&C on the basis that it concerned a privilege in relation to registration whereas this case concerns an obligation, I do not regard that as a material distinction in this regard and consider those principles to be as binding here as they were in CC&C ."

"33. The claimant contends that it was given no opportunity to address the allegations levelled against it by HMRC in advance of the decision that is impugned here. That is so seriously procedurally unfair and irregular as of itself to require the decision to be quashed as unlawful. Moreover, according to the claimant, it supports the proposition that there is an improper punitive element to the action taken by HMRC in this case. 34. I do not consider that this ground gives rise to arguable unlawfulness justifying the court's acceptance of jurisdiction. The absence of advance notice of deregistration or an opportunity to challenge a 'minded to' letter is a function of the statutory scheme which is not challenged and does not provide for advance notice to be given. That would not prevent HMRC in the exercise of care and management discretion from doing so i n any event, but in this case HMRC contend that they have in fact done so. 35. This is not a case where deregistration was a bolt out of the blue. As Mr Elms explains, the claimant was issued with warning letters and tax loss letters for a considerable time prior to deregistration … … 39. Moreover, it seems to me that this allegation is so closely connected with questions concerning the merits of the deregistration decision and HMRC's entitlement to be satisfied that the claimant ceased to be a registrable person, all of which fall well within the statutory regime so as not to justify the court allowing the collateral process of judicial review to be used to attack the decision in circumstances where the appeal can be advanced on that very basis. For that further reason this ground is accordingly unarguable."

"Finally, it is difficult to see how or why an AlP1 argument should cause this court to accept jurisdiction in a case where the legislation is not challenged and abuse of power is not alleged. Parliament's clear intention is that the FIT is the statutorily designated route of challenge to such decisions. The adverse impact of the decision that the claimant relies on is a consequence of the statutory scheme itself in the absence of any evidence of impropriety by HMRC, or any proper basis for alleging bad faith or abuse of power. The scheme does not provide for compensation, nor does it provide for interim relief. Those adverse consequences raised by the claimant could be raised in every case in which deregistration occurs, given the effect of deregistration is, as a matter of fact, to prevent a trader from carrying on trade beyond the threshold for registration. For all those reasons it seems to me that there is no arguable basis for judicial review raised by ground 2."

"7. I have to say that I find it disturbing that in this case one arm of the government fails to provide a sufficiently resourced appeal service to enable a challenge to a withdrawal of approval to be heard without harmful delay, while at the same time another arm of the government, namely HMRC, argues that it is reasonable for the claimant to be exposed to the risk of insolvency caused by that very delay."

"8. The authorities say that the reason a stringent test is applied on the determination of the application is because in sec 16(4) of the Finance Act 1994 Parliament chose not to vest the FTT with the power to award interim relief. Therefore, it is said, the court should be cautious before it starts liberally wielding a power which Parliament, by design, did not include in the statutory scheme. I have to say, respectfully, that I doubt the logic of this argument …"

"51. It was common ground that section 37 of the Senior Courts Act 1981 enabled this court to require HMRC to restore ICL to the register on a temporary basis. In addition to the ordinary law governing an application for interim relief, there are a number of additional principles which apply in this context. First, as in other areas of public law, the public interest carries significant weight in considering the balance of convenience: R v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603 , 673-674 per Lord Goff; R (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC (Admin). In this context the public interest is ensuring that HMRC is able to perform their duty of collecting lawfully imposed VAT and that fraud does not infect the VAT system. 52. Secondly, it is necessary in the balance to consider - because of the possible violation of the fair hearing provisions of Article 6 of the European Convention on Human Rights (Article 47 of the Charter of Fundamental Rights and Freedoms) - whether a claimant can demonstrate that the absence of interim relief would render an appeal to the Tribunal illusory because by the time it is heard it would no longer be viable or would have ceased to exist: OWD Ltd (t/a Birmingham Cash and Carry) (In Liquidation) v Revenue and Customs Commissioners [2019] UKSC 30 , [2019] 1 WLR 4020 , [56]-[60] referring without disagreement to Burnett U's judgment in the Court of Appeal: [2017] EWCA Civ 956 . 53. In explaining the point in the Court of Appeal, Burnett LJ said that it would be necessary for a claimant to establish that the Tribunal appeal would be illusory to a high degree of probability and with compelling evidence: [81], [85]. He stated that compelling evidence would call for more than a narrative statement from a director of the business speaking of the dire consequences of delay. Rather, that type of statement should be supported by documentary, financial evidence and a statement from an independent professional doing more than reformulating his client's stated opinion."

"56. A third principle governing interim relief in this context is the high hurdle which a claimant needs to surmount. In CC & C Ltd v HM Revenue & Customs [2014] EWCA Civ 1653 , [2015] 1 WLR 4043 , the Court of Appeal reasoned that this was because Parliament did not provide for the Tribunal to have power to make suspensory orders pending the outcome of an appeal, so that it was not open to the court to provide remedies for which the statute had not provided. In defining the high hurdle, Underhill LJ (with whom the others agreed) held that it was not simply a matter of showing a realistic chance of success, but that there was something along the lines of an abuse of power, impropriety or unfairness."

"So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63 , para 59."

"10. I understand that there have been allegations of an undisclosed bank account held by the Company and this contention is based, by Mr. Mills, on 'considerable monies transferred from the HSBC bank account to "