“There is a general duty in civil proceedings on a party applying for a without notice order to make full and candid disclosure of all material facts. This applies to paper applications and is an important safeguard in all without notice applications. A litigant pursuing a purely private interest in litigation is required to fulfil this duty, and the obligation is no less on a public authority such as the NCA pursing the public interest.”
“A judge to whom such an application is made must look at it carefully and with a critical eye. The power to impose restraint and receivership orders is an important weapon in the battle against crime but if used when the evidence on objective analysis is tenuous or speculative, it is capable of causing harm rather than preventing it. Where third parties are likely to be affected, even if the statutory conditions for making the order are satisfied, the court must still consider carefully the potential adverse consequences to them before deciding whether on balance the order should be made and, if so, on what conditions. A judge who is in doubt may always ask for further information and require it to be properly vouched.”
“In order to prevent possible dissipation of assets of significant value, applications under theProceeds of Crime Act 2002 should be considered urgent when lists are being fixed. In order to prevent potential prejudice, applications for the variation and discharge of orders…should similarly be treated as urgent and listed expeditiously.”
“Again, it is plain that, if the threshold test is passed, it gives rise to a power rather than a duty for the court to make (or refuse to set aside) an AFO. In exercising that power, a court must have regard in the first place to the legislative scheme of POCA, within which it has its place and purpose. And there may be other considerations relevant to whether a court makes or maintains an AFO where its power to do so arises. It is not controversial between the parties, for example, that the conduct of the [applicant], and wider considerations of fairness, may in an appropriate case come into play and result in the court refusing to make or uphold an AFO even although it is satisfied that reasonable grounds for suspicion are properly made out. On a set-aside application, and particularly where an AFO has been obtained ex parte in the first place, a court will certainly need to be alive to examine the merits of any challenge that the AFO was improperly obtained, or the granting court misled. The court will look at all the circumstances of the matter in such a case. It must, in other words, exercise the power – if it arises on the threshold test – properly and fairly, for the purposes for which it was conferred, in the interests of justice, and on ordinary public law principles.”
“Are you aware of any material information that might reasonably be considered capable of undermining any of the grounds of this application, or which for some other reason might affect the court’s decision?”
“To the best of my knowledge and belief: (a) this application discloses all of the information that is material to what the court must take into consideration when deciding on the application, including anything that might reasonably be considered capable of undermining any of the grounds of the application; and (b) the content of this application is true.”
“The account holder Mileage Reclaim Limited is a tax agent that I suspect has fraudulently claimed over£1.7 million in false tax rebates for its customers…by misrepresenting payroll employees as being self-employed and therefore falsely claiming back travel and subsistence expenses that they would not be entitled to.”
“17. … if the customer is employed on a Pay As You Earn basis, rather than being genuinely self-employed, then any expenses incurred would either be reimbursed by the employer or remain the responsibility of the individual and no tax rebate would be possible. 18. An open source Google search for ‘Mileage Reclaim Limited’ leads to a two year-old video on YouTube with the title ‘Welcome to Mileage Reclaim’ that shows James White advising viewers that if they are a payroll employee who has travelled for work they can claim back those expenses from HMRC. Prospective customers are invited to contact Mileage Reclaim Limited and speak to a tax advisor who will submit a claim to HMRC on their behalf. 19. Again, this advice is not correct. Travel and subsistence expenses for payroll employees are not refunded by HMRC, they would be the responsibility of the individual or remunerated by their employer. Any such claim for expenses would be either in error or fraudulent. I would expect any legitimate tax agent to be aware of this fact.”
“Based on the factors described above I submit that I have reasonable grounds to suspect that the over£21.7 million in tax rebates obtained by Peterson James & Co Ltd and Mileage Reclaim Limited through their ITSA claims derives from unlawful conduct in the form of what appears to be a large scale organised fraud operation against HMRC that falsely records PAYE employees as being self-employed in order to generate unearned tax rebates.”
“Having sought advice from HMRC PAYE specialists, we have now established that such claims can be made legitimately and there are mechanisms in place to facilitate this. Given this, HMRC accept that the working of the original application was inaccurate. This however was not done deliberately to mislead the court and was purely an error based on a misunderstanding at the time the application was made.”
“54. In order to evaluate these submissions, it is necessary to consider the basis for the suitable alternative remedy principle. This principle does not apply as the result of any statutory provision to oust the jurisdiction of the High Court on judicial review. In this case the High Court….has full jurisdiction to review the lawfulness of action by the designated officer and by HMRC. The question is whether the court should exercise its discretion to refuse to proceed to judicial review …..or to grant relief under judicial review at a substantive hearing according to the established principle governing the exercise of its discretion where there is a suitable alternative remedy. 55. In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor. 56. Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgement about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required”
“Rule one for any judge dealing with a case is that, before you make an order requested by one party, you must give the other party a chance to object. Sometimes a decision needs to be made before it is practicable to do this. Then you must do the next best thing, which is – if you make the order sought- to give the other party an opportunity to argue that the order should be set aside or varied.” ii) Here the opportunity afforded by section 303Z4 POCA to apply to set aside the AFO had proved theoretical. The Claimant’s application to the Magistrates’ Court had been made promptly and yet, despite the clear need for it to be heard swiftly so as to ensure fairness, it had not proved possible to secure a hearing until more than four months after the original order, during which time the Claimant’s business had been devastated. iii) In the light of the Claimant’s experience of listing in the Magistrates’ Court, including the facts that the 21 March hearing was ineffective and the 19 June hearing was postponed because of lack of judicial resource, I should not proceed on the basis that the 27 June hearing will be effective. There was a real risk that it would not be. iv) The abuse of power and procedural unfairness in the present case were so egregious as to create exceptional or special circumstances which would justify the Administrative Court in departing from its usual practice where there is an adequate alternative remedy. Here, submitted Mr Talbot, the AFO was a rubber stamp on false evidence which has “probably destroyed the Claimant’s business and Mr White’s financial reputation irretrievably”