Case Preview: Scottish Widows plc v Commissioners for Her Majesty’s Revenue and Customs
20 Friday May 2011
The request for a preview having come late in the day I though that I might hold off, watch the argument, and provide a review. So, with a cup of tea in hand, I tuned in to Sky’s live streaming. I can safely say that the coverage will be an excellent resource for advocates everywhere. Whether it will go mainstream and knock Silks off the top legal drama spot is quite another.
The coverage provides a window on the various ways of presenting legal submissions. It gives the hacks a chance to watch the stars of appellate advocacy in action. That said, as advocacy training, the coverage would be enhanced if the Supreme Court published the judgments of the lower courts, the Statement of Facts and Issues and the parties’ Cases. This would allow those with an idle day—apparently the odd barrister has them—to watch and more fully understand what is going on.
For instance, on Monday 23 May an important case on the standard of proof in civil cases under the Proceeds of Crime Act 2002, SOCA v Gale, is coming on for a hearing, and having had access to the documents, I will be sitting down with great interest to listen to at least some of what is said.
The Gale case has plenty of colour, involving as it does, allegations of international criminality. In contrast, the problem for the viewer of the Scottish Widows hearing was that the story was utterly devoid of human interest. The subject matter was the construction of Section 83(3) of the Finance Act 1989. The question was whether transfers from Scottish Widows’ reserves into the long term business fund were to be treated as increasing the value of the company’s assets for tax purposes. The Inner House had decided that the Revenue’s construction was correct. The point being argued was an esoteric one: even for tax lawyers. There are, however, many millions of pounds at stake, so Scottish Widows, who had a respectable argument to make, decided to take the appeal. Like a lot of Scottish appeals to London, it’s not necessarily one that the Justices would have chosen, but that they have to hear because the appellant could afford it.
Nevertheless, interesting points were raised in relation to the scope of the rule in Pepper v Hart and the extent to which a purposive approach could be taken to the construction of a tax statute. The Court of Session judges thought the legislation was clear on its own terms and that reference to Parliamentary material was precluded. The door is open to a reversal by the Supreme Court, because ambiguity is a matter for the reader. Of course, if the taxpayer does win, the Parliamentary draftsman will soon by typing up a few words to reverse the situation. It is difficult to beat the Revenue in the long term.