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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Fosberry & Anor v Revenue and Customs [2007] EWHC 1512 (Ch) (22 May 2007) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2007/1512.html Cite as: [2007] EWHC 1512 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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FOSBERRY AND ANOTHER |
Appellant |
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- and - |
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HM REVENUE AND CUSTOMS |
Respondent |
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PO Box 1336, Kingston-Upon-Thames KT1 1QT
Tel No: 020 8974 7305 Fax No: 020 8974 7301
Email Address: [email protected]
(Official Shorthand Writers to the Court)
MR BERNARD JOHN RICE - LITIGATION FRIEND
MS JUDITH AYLING appeared on behalf of the HM Revenue and Customs
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Crown Copyright ©
MR JUSTICE BLACKBURNE:
"It is arguable that the Master was wrong to conclude that there were departures from the CFA Regulations, which had a material adverse effect within the meaning of paragraph 107 of the judgment in Hollins v. Russell."
So far so good. I understand that the appeal -- which will be heard with assessors -- is fixed to come on in two days time, that is to say this coming Thursday, 24th May, with an estimated length of hearing of up to a day.
"The Respondents have breached no other rules or orders"
to be an admission that the Respondents are indeed in breach of one or more rules or other orders. I do not so read that assertion by the Respondents. The Respondents, of course, accept that they were in breach of the time requirement for the filing of their Respondent's notice, hence their application for an extension of time. But I am not aware that they have breached any other rules or orders, at any rate as far as this appeal is concerned, or, if they have, none has been drawn to my attention. I cannot, therefore, attach any weight to that point.
"The Respondents make the claim that the Appellants are not prejudiced by the late submission of the Respondent's notice. The very fact that the Respondents now wish to widen the issues to be considered by the court can hardly be said not to cause prejudice. If the late application is admitted the hearing scheduled for 24th May will have to be postponed, because the bundles and skeleton arguments submitted to the court and the Respondents in accordance with the directions of the court do not anticipate anything other than the two issues, in respect of which permission to appeal was granted by Briggs J."
Having heard from Mr Rice I have a feeling that to some extent there may have been an element of misunderstanding underlying that assertion, in that he understood that the Respondents were seeking to call into question the Fosberrys' right to non-legal representation, through him and his organisation, before the VAT and Duties Tribunal and with it, their right or his right to payment for such representation. If that had indeed been a point that the Respondents were raising I would have considerable sympathy with this particular objection, but as Miss Ayling has pointed out in the skeleton argument, a copy of which was made available to the Fosberrys a fortnight or so ago, it is made clear that:
"The Appellants have not appealed the finding of Master Wright that Mr Rice, or BJR [that is a reference to B J Rice & Associates] were providing legal services pursuant to ss.27 and 28 of the Courts and Legal Services Act of 1990 as amended, nor do the Respondents cross-appeal that finding."
The skeleton goes on:
"It is the Respondent's view that the appeal against the finding that the CFA is enforceable is without merit, and that there are strong additional reasons for the Appeal Court to uphold the Master's decision that the CFA is unenforceable, so that to pursue the cross-appeal, which involves highly complex questions of law, would serve only fruitlessly to increase the costs."
In other words, that wider question is emphatically not one which is going to be before the Appeal Court, at any rate, at the invitation of the Respondents at the forthcoming appeal hearing. So it may well be that in raising the concern as to the hearing in two days time consequent upon the Respondent's notice, the Fosberrys may have misunderstood the width of the points which the Respondents wish to raise.