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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sword Services Ltd Ors, R (on the application of) v HM Revenue & Customs [2015] EWHC 3544 (Admin) (07 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3544.html Cite as: [2015] EWHC 3544 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 December 2015

The Honourable Mr Justice Picken:


 


1. This is a renewed application for permission to appeal, permission having been refused on paper by Mr David Pittaway QC, sitting as a Deputy High Court Judge, on 3 November 2015. This is my ruling given after half a day's hearing. In circumstances where that hearing ended after 5 o'clock, I decided to reserve judgment.
2. The application is made by the Claimants and is resisted by the Defendant, The Commissioners for Her Majesty's Revenue and Customs ('HMRC'), except that HMRC does not resist the Court at this stage adjourning the application inasmuch as it relates to the Claimants' general public law/Human Rights Act arguments, pending the determination of the appeal in Nigel Rowe and Others v HMRC [2015] EWHC 2293 (Admin). This is a decision of Simler J made earlier this year which is now to be considered by the Court of Appeal, permission to appeal having been granted by the Court of Appeal very recently, on 25 November 2015.
3. HMRC's position is that nonetheless the other aspects of the challenge made by the Claimants in this case should be addressed at this hearing and that permission should be refused on the basis that these other aspects are not arguable. The other aspects have been described by HMRC's counsel, Mr Grodzinski QC and Mr Yates, in their skeleton argument, as "technical arguments" and I shall adopt this description in this ruling. However, I should not be taken as suggesting that because the arguments are technical they should necessarily be regarded as arguments which are bad. A technical argument can nonetheless, at least sometimes, be a good argument. I bear in mind also the point made by Mr Ewart QC, the Claimants' counsel, that the "technical arguments" in this case are concerned with certain safeguards which have been put in place to ensure that Partner Payment Notices (or 'PPNs') are only permitted to be served if a tax enquiry is properly in progress.
4. In addition, HMRC submits that certain interim relief set out in paragraph 4 of a Consent Order sealed on 30 July 2015 should no longer continue. I deal with each of these matters in turn, starting with the question of whether permission should be granted at this hearing either as regards the general public law/Human Rights Act arguments or the "technical arguments".

Permission

Rowe-type points

5. I am satisfied that it is appropriate in this case to defer determination of the application for permission to bring judicial review proceedings in relation to the general public law/Human Rights Act arguments pending determination of the appeal in the Rowe case, paragraph 3 of the Consent Order sealed on 30 July 2015 having stated as follows:

"The application for permission to apply for judicial review be stayed until after determination by the High Court of the application for judicial review in R (on the application of Rowe, Worrall and Others) HMRC CO/5901/2014, currently listed for a hearing on 14 July 2015".

6. Now that permission to appeal has been granted by the Court of Appeal in the Rowe case, I see no reason not to extend the scope, and so the length, of the stay in order for it to embrace determination by the Court of Appeal. HMRC's position is, therefore, in my view, realistic and sensible. I do not consider it sensible simply to grant permission, as Mr Ewart was possibly minded to favour. Just as it made sense to defer the question of permission until after Simler J gave judgment in the Rowe case, so it makes sense now to defer consideration of permission until after the Court of Appeal has decided the appeal in that case. This is because, after the Court of Appeal decision is known, it will be possible to say whether the Rowe-type points raised in these proceedings are at that stage arguable or not. To make a determination on arguability based purely on the fact that the Court of Appeal has granted permission seems to me to make little sense. Mr Ewart was ultimately content that the matter be dealt with in the way proposed by HMRC.

The "technical arguments"

7. As to the so-called "technical arguments", these involve two aspects. First, the Claimants say that HMRC failed to make a valid enquiry into the relevant partnership returns which were filed by, or more accurately on behalf of, the various Claimants. Secondly, the Claimants also argue that, in any event, an LLP is not a "partnership" for the purposes of Schedule 32 to the Finance Act 2014, and so HMRC has no entitlement to serve PPNs in respect of the LLP Claimants.

The notice of enquiry points

8. Turning to the first of these matters, some explanation is first necessary so that the point which arises can be understood in its proper context.
9. A partnership return is a return which both general partnerships and LLPs are required to file under section 12AA of the Taxes Management Act 1970. Specifically, section 12AA(6) states as follows:

"(6) Every return under this section shall include –

(a)   a declaration of the name, residence and tax reference of each of the persons who have been partners –

(i)     for the whole of the relevant period, or

(ii)    for any part of that period,

and, in the case of a person falling within sub-paragraph (ii) above, of the part concerned; and

(b)   a declaration by the person making the return to the effect that it is to the best of his knowledge correct and complete."

10. Also relevant for present purposes is section 12AC of the 1970 Act, which permits HMRC to enquire into a partnership return. Any such enquiry must generally be opened within 12 months after the filing of the partnership return. The notice must be given under section 12AC(1)(a) to "the partner who made and delivered the return, or his successor". Section 12AC(6) then goes on to provide as follows:

"(6) The giving of notice of enquiry under subsection (1) above at any time shall be deemed to include the giving of notice of enquiry –

(a)  under section 9A(1) of this Act to each partner who at that time has made a return under section 8 or 8A of this Act or at any subsequent time makes such a return, or

(b)  under paragraph 24 of Schedule 18 to the Finance Act 1998 to each partner who at that time has made a company tax return or at any subsequent time makes such a return."

11. The significance of section 12AC is that HMRC accepts that the validity of the PPNs which were served on the Claimants and which are at issue in these proceedings depends upon a valid enquiry having been opened into the relevant partnership returns. This is because Schedule 32 to the Finance Act 2014 states in sub-paragraphs 3(1) and 3(2)(a) as follows:

"(1) Where a partnership return has been made in respect of a partnership, HMRC may give a notice (a "partner payment notice") to each relevant partner of the partnership if Conditions A to C are met.

(2)     Condition A is that –

(a)  a tax enquiry is in progress in relation to the partnership return, …".

12. In short, unless a tax enquiry is in progress, HMRC is not permitted to give a PPN to a partnership, hence the significance of the "technical argument" raised by Mr Ewart. The Claimants' case is that notices of enquiry were not sent to the correct partner for the purposes of section 12AC(1)(a). Accordingly, the Claimants say, no tax enquiry is in progress as required by Condition A, and as a result HMRC had no power to issue a PPN.
13. On behalf of HMRC, Mr Grodzinski and Mr Yates, in their skeleton argument, suggest that both of these arguments raised by the Claimants are hopeless, and that accordingly permission to bring judicial review proceedings based on them should be refused. The point is made in relation to the first of the matters that, as regards what is described as "a significant number" of the Claimants, the partner to which notice of intention to enquire must be sent under section 12AC(1)(a) of the 1970 Act, namely the partner "who made and delivered the return", received (like all other known partners) a "courtesy" letter which stated that HMRC intended to enquire into the tax return of the relevant partnership. Such letters, Mr Grodzinski and Mr Yates submit, were sufficient for section 12AC(1)(a) purposes, even though the partner identified in section 12AC(1)(a) was not sent what is described as a "primary enquiry" letter but was sent merely a "courtesy" letter. These cases, which I shall describe as 'category 1' cases, involve, Mr Grodzinski and Mr Yates suggest, eight of the Claimants, specifically GPs 1-5 and LLPs 1-3. However, the position is not as yet agreed by the Claimants and it may be that the number of cases falling within 'category 1' are not as many as eight.
14. Specifically, the "courtesy" letters which were sent by HMRC in these 'category 1' cases were in the following terms, taking a letter sent to FCP (Man Serv) Ltd in relation to Dean Street Productions No 4 GP (namely, GP 4) as an example:

"Dean Street Productions No 4 GP

Partnership Tax Return Year Ended 5 April 2010

I am writing to tell you that I intend to enquire into the Tax Return for the year ended 5 April 2010 of the above named partnership of which you are a member.

This letter concerns your Company Tax Return as it may need to be amended to reflect the final figures in the Partnership Tax return. Therefore, until the enquiry is completed, your Company Tax Return for any year affected by the enquiry will be treated as being under enquiry. Please note that I will write to the nominated partner separately about the Partnership Tax Return.

…".

15. This type of letter is to be compared with the wording used in the "primary enquiry" letters which HMRC sent in other cases. These stated as follows, taking this time the letter which was sent by HMRC to Future Films (Partnership Services) Limited (described in the letter as "Nominated Partner of Dean Street Productions No 2 LLP") in respect of Dean Street Productions No 2 LLP (namely, LLP 2) (albeit that it is the Claimants' case that the right party to have been sent the relevant notice was Future Capital Partners (Management Services) Limited):

"Dean Street Productions No 2 LLP UTR: 39223 58932

Partnership Tax Return Year Ended 5 April 2011

Thank you for your Partnership Tax Return for the year ending 5 April 2011, which we received on 29 January 2012.

I am writing to tell you that I intend to enquire into this return. My enquiry will cover the whole of your Partnership Tax Return.

…".

16. It is argued by Mr Grodzinski and Mr Yates that, given the wording used in the "courtesy" letters, specifically the fact that the first paragraph refers to HMRC's intention "to enquire into the Tax Return … of the above named partnership of which you are a member", language which is essentially the same as the language used in the second paragraph of the "primary enquiry" letters, so the "courtesy" letters operate to give the notice required by section 12AC(1) of the 1970 Act just as much as the "primary enquiry" letters do.
17. Mr Ewart disagrees, pointing to the fact that the "courtesy" letters go on in the second paragraph to refer to the partner's "Company Tax Return" as being under enquiry. So, Mr Ewart submits, these letters are not to be treated as giving the notice required by section 12AC(1) even if they were sent to the relevant filing partner in its capacity as one of several partners, rather than because HMRC realised that that partner was the relevant filing partner, and so the partner to which section 12AC(1)(a) requires that notice is sent. I cannot accept this submission. It seems to me that the "courtesy" letters were quite clearly giving the recipient partners notice that HMRC intended to enquire into the Partnership Tax Returns which had been submitted in respect of the partnerships of which the recipient partner was a member. The fact that the letters went on to refer to the partners' Company Tax Returns does not seem to me to change things. It is clear that the reference to the Company Tax Returns also being treated as being under enquiry "until the enquiry is completed" (that is, the enquiry referred to in the first paragraph of the letters and so the enquiry into the Partnership Tax Returns) does not alter the fact that, in the first paragraph, clear notice was given that HMRC intended to enquire into the relevant Partnership Tax Return.
18. I reach this conclusion, a conclusion that the contrary is not arguable, without having to have regard to the authority which is relied upon by Mr Grodzinski and Mr Yates and which was also relied upon by the Deputy Judge when refusing permission on the papers. This is the decision of Special Commissioner Charles Hellier in Flaxmode Ltd v The Commissioners for Her Majesty's Revenue and Customs [2008] STC (SCD) 666. In that case, letters were sent to the various partners in two different forms. One stated:

"I am writing to tell you that I intend enquiring into the Tax Return for the year ended 5 April [2004–05] of [J & A Gibbins] of which [you] are a member. I will write to Mr J C M Gibbins, as nominated partner to ask separately for the information needed.

… if we decide to make enquiries into any non-partnership aspects of [your] return we shall write separately to tell you."

The other stated:

"I am writing to tell you that I intend enquiring in relation to [the] Return. … My enquiry is into certain aspects of the return …

… I attach a copy of a letter I am sending to your adviser requesting information about the [return]. I will be dealing with your tax adviser to obtain the information. You should talk to them about my letters."

19. Mr Hellier had to consider an argument that section 12AC(1) requires that a notice is given and, for these purposes, a "courtesy" letter such as those quoted above was not sufficient. The submission made in that case was summarised at [20] as being that "'telling you' I intend to enquire and that I would be writing to 'Mr J C M Gibbins as nominated partner' is not enough". This, essentially, is the same submission which Mr Ewart makes in the present case. Mr Hellier did not accept the submission, saying as follows at [27]:

"It does not seem to me that s 12AC requires particular formality about the giving of notice. Chambers English Dictionary (7th edn) defines 'notice' as intimation, announcement, information, warning. It seems to me that the purpose of the notice to be given is to warn the taxpayer that an enquiry is underway so that he knows questions may be asked and that time limits may be affected, and to provide a mechanical activation of the enquiry procedure. This does not require something formal: all that is needed is something in writing which informs the taxpayer that an enquiry is underway. It seems to me therefore that a letter which announces that 'I intend enquiring into' a tax return is sufficient to be a notice for the purposes of s 12AC."

20. Mr Hellier, therefore, decided that the "courtesy" letters constituted notice under section 12AC(1). This decision seems to me to make it all the more problematic for the Claimants in the 'category 1' type of case to say that notice under section 12AC(1) was not given. It is an additional reason, therefore, why I conclude that in relation to the 'category 1' cases the "technical argument" concerning lack of notice is not arguable, and so that permission in relation to the 'category 1' cases ought not to be given as regards those "technical arguments".
21. I should observe that the conclusion which I have reached in relation to the 'category 1' cases is a conclusion which seems to me to be appropriate notwithstanding Mr Ewart's submissions at the hearing concerning sub-sections 12AA(2) and (3) of the 1970 Act. I do not set these provisions out here but what they entail is HMRC being able to identify a particular partner who is to file a tax return on behalf of a partnership. Mr Ewart suggests that the problems which have arisen in these cases stem from HMRC choosing not to avail itself of these powers. It does not seem to me, however, that this represents an answer to the point that the "courtesy" letters, if sent to the partner "who made and delivered the return" as stipulated in section 12AC(1)(a), amount to the giving of notice under that provision. Nor do I consider it an answer to the case advanced by HMRC in relation to the 'category 1' cases for Mr Ewart to point to the provisions in Schedule 3A to the 1970 Act which are concerned with electronic filing of tax returns to suggest that these explain why no name was stated in the returns. For 'category 1' cases, what matters is that every partner received a "courtesy" letter with the consequence, as far as section 12AC(1)(a) is concerned, that I have described.
22. I come on, then, to consider the 'category 2' type of case. This is where no "primary enquiry" letter was sent (at least to the right partner) and HMRC is unable to rely upon a "courtesy" letter having been written to the partner identified in section 12AC(1)(a) of the 1970 Act, namely the partner "who made and delivered the return". In relation to these cases, HMRC's argument is that the only reason why either a "primary enquiry" or a "courtesy" letter was not sent to the partner "who made and delivered the return" is that that partner failed to do what is required by section 12AA(6) of the 1970 Act, which is to give a name in the return which is submitted. In these circumstances, Mr Grodzinski and Mr Yates submit that it is not open to the relevant Claimants (they say GPs 6-7 and LLPs 4-7, although again the Claimants need to verify the position) to assert that a tax enquiry was not properly opened since, they suggest, the 1970 Act needs to be "read purposively" in such a way as not to require that a notice must be served on a person who has not been identified as a partner in the relevant Partnership Tax Return.
23. In this connection, various other points are made by Mr Grodzinski and Mr Yates. These include the fact that it was not until late in the day, long after service of what are now argued not to be notices of enquiry, and notwithstanding that the Claimants have throughout complied with the enquiries which have been made, that the point concerning lack of notice was made. It is also suggested that the Claimants can have suffered no prejudice through not having formal notice, if that was the case, not least because the various service companies involved in the partnerships of which the Claimants were members all operated out of the same offices at 10 Old Burlington Street in London as the entity (Future Capital Partners Limited) which promoted the tax schemes in which the partnerships were involved.
24. I bear these various matters in mind. It may well be that the "technical arguments" which are advanced by the 'category 2' Claimants are not only technical but are also wrong (as well as unattractive). However, I am not able at this permission stage to conclude that they are arguments which will necessarily fail. In circumstances where HMRC is having to resort to an invitation to the Court to adopt a purposive construction to what, on the face of it, is a clear requirement in section 12AC(1)(a) of the 1970 Act that notice be served on the partner "who made and delivered the return", it seems to me that it is appropriate that this aspect of the claim should proceed to a full hearing, and I grant permission in respect of the 'category 2' cases accordingly.
25. I would add that I do so notwithstanding Mr Grodzinski's and Mr Yates's reliance on section 114 of the 1970 Act. This provides as follows:

"An assessment or determination, warrant or other proceeding which purports to be made in pursuance of any provision of the Taxes Acts shall not be quashed, or deemed to be void or voidable, for want of form, or be affected by reason of a mistake, defect or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of the Taxes Acts, and if the person or property charged or intended to be charged or affected thereby is designated therein according to common intent and understanding."

26. Mr Grodzinski and Mr Yates submit that this is a case in which section 114 applies given that, if there was a mistake in giving notice under section 12AC(1)(a), it was in the naming of one company connected to the tax avoidance scheme promoter (Future Capital Partners Limited) rather than another one. In these circumstances, they submit, since there is no "likelihood of the recipient being deceived or misled" (see per Megarry J in Fleming v London Produce Ltd [1968] 1 WLR 1013 at 1027-8), so any lack of notice under section 12AC(1)(a) is to be excused.
27. This seems to me, however, again to be a matter which it is appropriate should be dealt with at a substantive hearing. I cannot conclude that HMRC's reliance on section 114 is right. On the contrary, I am somewhat sceptical that it can be given that, at least as I see it, albeit that I have not had the benefit of full argument on the point, section 114 would seem to be concerned with errors involving spelling mistakes and the like. I have in mind in this context that in the Fleming case Megarry J introduced his discussion concerning section 114's predecessor by saying this at page 1012:

"However apt these provisions might be for minor deviations such as mis-spellings of names, slight inaccuracies in the descriptions of sources of income and the like, they could not, it is said, rescue assessments based on categorical departures in which names or sources of income were wholly misdescribed, and 'Agents' could by no feat of forensic dexterity be made to appear as merely a minor variation of 'Meat Salesmen'."

This confirms, to my mind, that section 114 is unlikely to apply in a case such as the present, entailing as it does not a mistake in the spelling of the right partner's name but an error, however excusable or not, in identifying the partner to whom notice under section 12AC(1)(a) should be given.

28. I observe also that in the Flaxmode case, albeit obviously on an obiter basis, Mr Hellier said this at [33]:

"As a result I do not need to consider whether s 114 can save the notice. If I had found that it was essential that the 'notice' be formally addressed only to the nominated partner (and perhaps described as a notice under s 12AC) indicating to him in his capacity as nominated partner that an enquiry was intended, then I would have had some difficulty in concluding that s 114 saved it; but I did not so find."

Like Mr Hellier, I share some difficulty in seeing how section 114 assists HMRC in these proceedings. However, that is a matter which I need not, and do not, determine at this permission stage.

The LLP point

29. As to the argument concerning Schedule 32 to the Finance Act 2014, Mr Grodzinski's and Mr Yates's submission is that, although Schedule 32 does not itself specify that a "partnership" includes an LLP, nevertheless the reference to a "partnership" in Schedule 32 should be regarded as including an LLP as well as a general partnership.
30. Mr Grodzinski and Mr Yates acknowledge that, as Mr Ewart observes, an LLP is not a partnership as a matter of general law. They argue, however, that for tax purposes an LLP is treated as such, pointing specifically to section 1273 of the Corporation Tax Act 2009 which provides as follows:

"(1) For corporation tax purposes, if a limited liability partnership carries on a trade or business with a view to profit –

(a) all the activities of the limited liability partnership are treated as carried on in partnership by its members (and not by the limited liability partnership as such),

(b) anything done by, to or in relation to the limited liability partnership for the purposes of, or in connection with, any of its activities is treated as done by, to or in relation to the members as partners, and

(c) the property of the limited liability partnership is treated as held by the members as partnership property.

References in this subsection to the activities of the limited liability partnership are to anything that it does, whether or not in the course of carrying on a trade or business with a view to profit.

(2) For all purposes, except as otherwise provided, in the Corporation Tax Acts –

(a) references to a firm include a limited liability partnership in relation to which subsection (1) applies,

(b) references to members of a firm include members of such a limited liability partnership,

(c) references to a company do not include such a limited liability partnership, and

(d) references to members of a company do not include members of such a limited liability partnership."

31. Mr Grodzinski and Mr Yates go on to point out that "The Corporation Tax Acts" is a term which is defined in Schedule 1 to the Interpretation Act 1978 as being "the enactments relating to the taxation of the income and chargeable gains of companies and of company distributions (including provisions relating to income tax)". Since, they submit, both the 1970 Act and the Finance Act 2014 fall within this definition, these being statutes which "relate" to the taxation of the income and gains of companies, so Schedule 32 to the latter Act must be taken as applying to LLPs as well as to general partnerships.
32. Mr Ewart disagrees with these submissions, making the point in particular that, as "partnership" is not defined in Schedule 32, it is not open to HMRC to look more widely within the statutory tax regime for a definition. He highlights, in particular, how paragraph 3(1) of Schedule 32 refers not merely to "a partnership return" having been made but to that partnership return being "in respect of a partnership". Mr Ewart submits that this latter wording is to be taken as indicating that it is not every partnership return which comes within the remit of paragraph 3, and so the PPN regime, but only partnership returns in respect of partnerships as understood by the general law and, therefore, not LLPs. Mr Ewart also places reliance upon the fact that section 1273(2) of the 2009 Act refers not to partnerships as such but to "firms", suggesting that this gives rise to a relevant distinction.
33. Mr Grodzinski and Mr Yates are dismissive of these points and it may be that it will prove that they are right to be. However, having regard to both sides' arguments and deliberately preferring not to express a view either way at this (permission) stage, I have reached the conclusion that on this matter it is appropriate that permission is granted. It is a matter which I regard as arguable, and so permission should be granted. In the circumstances, I say no more about it.

Interim relief

34. I need also to address certain submissions which were made concerning interim relief. The background to these submissions is the fact that paragraph 4 of the Consent Order sealed on 30 July 2015 is in the following terms:

"Insofar as any Claimant in this case has filed and served a witness statement providing evidence of hardship in paying any sum due under a Partnership Payment Notice, HMRC shall not (without first applying to the court in relation to the cogency of such evidence) take steps against that Claimant to enforce any sum due and payable under the PPN or any associated penalty until the current Claimant's judicial review claim is determined by this court or otherwise disposed of".

I was told by Mr Ewart that this was wording which was proposed by HMRC and to which the Claimants agreed.

35. Mr Grodzinski and Mr Yates submit that "there is nothing in that Order indicating that interim relief would, unusually, continue even after the refusal of permission". In circumstances where I have granted permission in relation to certain of the "technical arguments", it seems to me that this submission falls away. Mr Grodzinski and Mr Yates go on to submit, however, in the final paragraph of their skeleton argument, that, even if permission were granted on the "technical arguments", such relief is nevertheless still inappropriate in that it would "frustrate the public interest in enforcing the powers granted by the Finance Act 2014, on the basis of what is at best a technicality which the claimants have belatedly sought to take advantage of".
36. The difficulty with this submission, as I see it, is that it prejudges the Court's ultimate determination in relation to the "technical arguments". It may be that the Court will ultimately determine that the "technical arguments" are not only unattractive but also wrong. At this stage, however, I cannot know whether that will be the outcome.
37. In such circumstances, it seems to me that the order made in paragraph 4 of the Consent Order sealed on 30 July 2015 ought to be maintained. I consider that this is all the more the case given that I have stayed the question of whether permission should be granted in relation to the Rowe-type arguments pending determination by the Court of Appeal in the Rowe case since it may be that ultimately the appeal will succeed irrespective of the outcome of the "technical arguments".
38. I appreciate that HMRC's position is that the paragraph 4 interim relief ought not to continue now that there has been judgment in the Rowe case and that this was in HMRC's favour. Mr Grodzinski and Mr Yates submit, indeed, that the fact that the Court of Appeal has given permission to appeal in that case is nothing to the point. In particular, reference was made by Mr Grodzinski and Mr Yates in their skeleton argument to a decision of Kenneth Parker J in R (Aston) v HMRC [2015] EWHC 3118 (Admin). In that case, the judge declined to grant interim relief on the basis that it was not in the public interest that interim relief be granted given his view that the ultimate prospects of success on the Rowe-type arguments were relatively low. This was a decision which was made before permission to appeal was granted by the Court of Appeal, albeit I was told that it was considered likely that permission would be granted.
39. In my view, however, the fact that the Court of Appeal has recently granted permission to appeal in the Rowe case makes it appropriate that the interim relief set out in paragraph 4 should continue. The rationale behind the parties' agreement in paragraph 4 remains now that permission to appeal has been granted. As I say, paragraph 4 was included in the Consent Order sealed on 30 July 2015 at HMRC's own suggestion. Clearly at that juncture, therefore, it was thought by HMRC that the public interest (see per Lord Goff in the Factortame case [1991] 1 AC 603 at page 673) was not such as to mean that there should not be the interim relief to which paragraph 4 refers. I do not consider that the assessment of what is in the public interest has changed notwithstanding that the Rowe case has been decided as it has been since there is now an appeal which is to take place in that case and so the ultimate outcome is not, as yet, known. Further, the fact that apparently no interim relief has been granted to the companies involved in that case seems to me not to be the central consideration. I do not know whether those companies will seek interim relief now that they have obtained permission to appeal. In any event, I have to consider the position of the Claimants in the present proceedings, not in other proceedings.
40. I note further in this context that paragraph 4 of the Consent Order specifically states that it applies only in cases where a Claimant "has filed and served a witness statement providing evidence of hardship". It is not, therefore, any more general a provision than that. There has to be evidence of hardship; if there is not, the interim relief does not apply. It seems to me, therefore, that the public interest position has been addressed satisfactorily in paragraph 4.
41. I would lastly add that, the parties having agreed that certain further Claimants can be added to these proceedings, indeed this having been the subject of an order made by the Deputy Judge on 3 November 2015, I have been shown a draft Order which has been agreed between the parties and which makes it clear that the existing interim relief applies to the additional parties. I indicated to the parties at the hearing that I was content to approve that draft Order.

Conclusion

42. In conclusion, therefore, I grant permission in relation to the "technical arguments" insofar as they are concerned with 'category 2' cases (but not 'category 1' cases) and the LLP point, and adjourn consideration of the Rowe-type arguments until determination by the Court of Appeal in the Rowe case. I agree with all counsel that there is no reason why the 'category 2' "technical arguments" and the LLP point should not proceed without awaiting the outcome of the appeal in the Rowe case.