© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
D2. Access to justice
Access to Court/Tribunal: presumption against impeding access
"[76] In more modern times, many examples can be found of judicial recognition of the constitutional right of unimpeded access to the courts (as Lord Diplock described it in Attorney General v Times Newspapers Ltd [1974] AC 273, 310, and again in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909, 977), which can only be curtailed by clear statutory enactment. Thus, in In re Boaler [1915] 1 KB 21, where the question was whether a statutory prohibition on vexatious litigants instituting legal proceedings extended to criminal proceedings, the Court of Appeal held that it did not. Scrutton J said at p 36 that although a statute might deprive a subject of the right to appeal to the courts, “the language of any such statute should be jealously watched by the courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension.” Similarly, in Chester v Bateson [1920] 1 KB 829, where delegated legislation prohibited the bringing of certain legal proceedings without a minister’s consent, the Divisional Court held that the regulation was invalid. Avory J stated that “nothing less than express words in the statute taking away the right of the King’s subjects of access to the courts of justice would authorize or justify it” (p 836). To similar effect was the decision of the House of Lords in R & W Paul Ltd v The Wheat Commission [1937] AC 139, where an arbitration scheme established by delegated legislation disapplied the Arbitration Act 1889, under which arbitrators could state a special case for the opinion of the court on a point of law. That element of the scheme had not been expressly authorised by the enabling legislation, and was held to be ultra vires. As Viscount Simonds observed in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286:
“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”
[77] Another important general statement was made by Lord Diplock in Attorney General v Times Newspapers Ltd at p 309:
“The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.”
[78] Most of the cases so far mentioned were concerned with barriers to the bringing of proceedings. But impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament. Examples include Raymond v Honey [1983] 1 AC 1, where prison rules requiring a prison governor to delay forwarding a prisoner’s application to the courts, until the matter complained of had been the subject of an internal investigation, were held to be ultra vires; and R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778, where rules which prevented a prisoner from obtaining legal advice in connection with proceedings that he wished to undertake, until he had raised his complaint internally, were also held to be ultra vires." (R oao Unison v. Lord Chancellor [2017] UKSC 51)
"[41] Mr Burton also relied on the existence of a presumption that rights of appeal will not be excluded where they would be otherwise available. In R v Emmett [1998] AC 773, 781-782 the House of Lords had to consider whether a reference to an acceptance of an allegation as "conclusive" in s.3(1) of the Drug Trafficking Offences Act 1986 meant for all purposes, including an appeal against a confiscation order. Lord Steyn said:
"There is a strong presumption that except by speci?c provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available: Reg. v Cain [1985] A.C. 46, 55G-56D, per Lord Scarman. The starting point is that, unless section 3(1) expressly or by necessary implication excludes a right of appeal, there is as a matter of jurisdiction a right of appeal against a confiscation order in all cases."
It was held that a right of appeal to the Court of Appeal was excluded neither expressly nor by necessary implication.
[42] The context there was a criminal appeal. However, similar principles have been applied elsewhere. For example, in the earlier case of R v Secretary of State for the Home Department Ex p. Leech (No.2) [1994] QB 198, a provision in the prison rules was held to be ultra vires so far as it impeded correspondence with legal advisers about contemplated proceedings." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)
- Presumed limitation that degree of intrusion must not be greater than justified by objectives
"[88] But a situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires. As appears from such cases as Leech and Daly, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve." (R oao Unison v. Lord Chancellor [2017] UKSC 51)
- No substantive distinction between regulating a right of appeal and excluding it
"[61] ... While I understand HMRC's argument that s.38(1A) simply regulates the exercise of a right of appeal rather than excluding it as in Saleem, I cannot accept it. In substance and in reality, the effect of s.38(1A) is to remove a right of appeal where time is not extended by HMRC under s.21B.
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[64] Ms Smyth relied on Moses LJ's reference at [21] of ToTel to a provision requiring payment of tax in dispute before an appeal may be entertained as an example of a provision governing the "circumstances in which … an appeal may be made", within s.124(2). She submitted that there was no material difference between that and requiring a review to have been conducted. Both were simply conditions that needed to be met before a right to appeal could be exercised, rather than provisions which removed a right of appeal.
[65] There are two responses to that. First, and in contrast to s.38(1A), the example given by Moses LJ is explicitly recognised in s.124(3). Secondly, and more fundamentally, the effect of s.38(1A) is not simply to mandate a review to be conducted first as a condition of bringing an appeal. Rather, its effect is to exclude the possibility of a late challenge where HMRC do not agree to extend time. In essence, it excludes the jurisdiction of the FTT to determine whether to entertain a late appeal." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)
- Mandatory review procedure not within scope of purpose of enabling power
"[58] The effect (or purported effect) of the introduction of s.38(1A) by the 2014 Order is radical. It not only requires a review to be conducted but does so in a manner which excludes the right of recourse to the FTT that previously existed in circumstances where a decision is challenged late and HMRC refuse an extension of time. Before the 2014 Order was made the FTT had the power to extend time for an appeal by up to 12 months where a late appeal was made, pursuant to the FTT rules. Although that power remains, s.38(1A) precludes an appeal altogether unless a review has been carried out and its outcome has been notified. In contrast, ss.21A and 21B, which were also introduced by the 2014 Order, present no difficulty by themselves. Their effect, read without s.38(1A), is simply to confer a time-limited right to require HMRC to review a decision of a kind falling within s.38(1).
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[61] The purpose of s.124 FA 2008, as is clear from the Explanatory Notes to the Bill, was to facilitate the transition to the new tribunal system and allow the introduction of a right to a formal review. That is very different from a mandatory review on terms that excludes the FTT's ability to determine whether to entertain a late challenge. There is nothing in s.124 FA 2008 that makes clear that it authorises a provision which has the effect of making the decision maker the effective gatekeeper of appeals to the FTT in the event of a late challenge, subject only to the possibility of judicial review. Although s.124(2)(a)(ii) permits provision about the "circumstances in which" an appeal may be made, that is insufficiently clear to permit HMRC to become the gatekeeper. While I understand HMRC's argument that s.38(1A) simply regulates the exercise of a right of appeal rather than excluding it as in Saleem, I cannot accept it. In substance and in reality, the effect of s.38(1A) is to remove a right of appeal where time is not extended by HMRC under s.21B." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)
- Tribunal rule requiring tribunal to hear appeal in litigant's absence (no discretion) unlawful denial of right of access
""[47] Ms Chan has usefully set out a summary of the well-established principles by which the common law tests the legality of delegated legislation. They can best be taken, for present purposes, from two of the judgments in Saleem v Home Secretary [2000] Imm AR 529. Roch LJ said:
19. It follows that infringement of such a right must be either expressly authorised by a provision in an Act of Parliament or arise by necessary implication. Even where it can be said that the making of a rule under powers to make rules by subordinate legislation arise by necessary implication, it will still be in question whether the rule formulated is reasonable. Even where the need for such a rule does not arise by necessary implication either because the purpose of Parliament cannot be achieved without it or the function Parliament has laid in a person or body cannot be discharged without it, the rule will be ultra vires the rule-making power if the rule as framed is unreasonable: if it is wider than necessary; if it infringes the fundamental right to a greater extent than is required.
26. The conclusion I have reached is that rule 42(1)(a) is not expressly authorised by the 1971 Act. The rule goes beyond regulating rights of appeal to the Tribunal in that it can deny a party her chance to appeal where the party has, through no fault of her own, failed to comply with the five day rule. A rule of such severity is not reasonable because it is not necessary to achieve the objective of timely and effective disposal of appeals and may well deny an asylum seeker "the just disposal" of her appeal which is another objective identified in rule 23. The rule, in the circumstances which have arisen in this case, goes beyond regulating the right of appeal and is destructive of that right. I would declare the rule invalid insofar as it purports to determine conclusively the moment at which an asylum seeker receives notice of the special adjudicator's determination for the purpose of starting the five day period for applying leave to appeal. I would express no view on the validity of the rule for determining the date on which other notices have been received by parties to asylum appeals. The operation of the rule in respect of other notices has not been the subject of evidence or argument before us.
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[49] We are at present seized of appeals on a question of law. In law, the refusal of the AIT to reopen the appeals in the light of the reasons for non-appearance was not only permitted but demanded by the Rules. They cannot in my opinion be read in any other way. But the appellants have without objection raised the underlying question whether, in that case, the Rules themselves are lawful. In my judgment they are not. For reasons which I have given, they forfeit what our constitutional law (consonantly now with article 6 of the European Convention on Human Rights) regards as a fundamental right, the right to be heard on an issue of radical importance to the individual, on grounds which are so widely and rigidly prescribed that they shut out parties who have done nothing wrong but whose lives and safety may in consequence be put at risk. In so doing they sacrifice fairness to speed and deny the Tribunal any power to hold these two desiderata in balance." (FP (Iran v. Secretary of State for the Home Department [2007] EWCA Civ 13)
Irrespective of whether right is covered by Article 6
"Hale LJ at §53 set out the classic guidance given by Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91, 99-100:
I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn bye-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can be properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges think ought to be there.
Having noted that the European Court of Human Rights had not, or not yet, included asylum appeals in the civil rights directly protected by article 6, she said at §55:
…There are now a large number of Tribunals operating in a large number of specialists fields. Their subject matter is often just as important to the citizen as that determined in the ordinary courts. Their determinations are no less binding than those of the ordinary courts: the only difference is that Tribunals have no direct powers of enforcement and, in the rare cases where this is needed, their decisions are enforced in the ordinary courts. In certain types of disputes between private persons, Tribunals are established because of their perceived advantages in procedure and personnel. In disputes between citizen and state they are established because of the perceived need for independent adjudication of the merits and to reduce resort to judicial review. This was undoubtedly the motivation for grafting asylum cases onto the immigration appeals system in 1993. In this day and age a right of access to a Tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the courts.
56. I also accept that the more fundamental the right interfered with, and the more drastic the interference, the more difficult it is to read a general rule or regulation-making power as authorising that interference. Whether that is approached along the route of "necessary implication" adopted in Leech or along the route of "reasonable contemplation of Parliament" derived from Kruse v Johnson may not matter; the result will be the same." (FP (Iran v. Secretary of State for the Home Department [2007] EWCA Civ 13)
- Absolute and inflexible time limit contrary to right of access to justice
"[35] After the Scott Baker report was presented to the Home Secretary and before the Government responded, further concern was expressed by this court in Pomiechowski [2012] 1 WLR 1604 as to the application of short and inflexible time-limits. Lord Mance stated at para 37 that the statutory provisions regarding the permitted periods for appeals may in individual cases impair “the very essence of the right” of appeal and also stated at para 39 that there was no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time-limits for appeals. It intended short and firm time-limits but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time.
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[49] I also consider that this interpretation of section 26(5) is supported when consideration is given to the mischief which was sought to be addressed by Parliament when section 26(5) was inserted into the 2003 Act by enacting section 160 of the 2014 Act. The mischief was apparent from the judgments and judicial observations referred to in paras 25-32 above and was also identified in the Scott Baker report, see paras 33-34 above, namely the potential for substantial injustice being inflicted by the application of short and inflexible time-limits. It was not confined to excluding injustice arising from the absence of legal representation for those in respect of whom extradition orders had been made. So, I respectfully disagree with the Divisional Court in Szegfu at para 18, that the vice with which Parliament was dealing was the particular problem of unrepresented persons being remanded in custody and having no realistic opportunity of getting legal advice in time to mount an appeal within seven days. Furthermore, I agree with the Divisional Court in this case that Lord Mance’s analysis in Pomiechowski (at paras 36 and 37) of the injustice that can arise from absolute and inflexible time-limits for appeals did not seek to confine the possibility of injustice to unrepresented litigants. Accordingly, in addition to what I consider to be the natural reading of section 26(5), I conclude on the basis of the mischief which Parliament was addressing that the true interpretation of that section is that there should be jurisdiction to entertain an application for leave to appeal if the person ordered to be extradited had himself done everything possible to ensure that the notice was given as soon as it could be given even though his legal representative had failed to do so. It was not the purpose of the legislation to perpetuate the potential injustice which can result from fault of the person’s legal representative." (Public Prosecutors Office of Athens v. O'Connor [2022] UKSC 4)
"[41] In section 40 of the Medical Act 1983, Parliament made provision for a 28 day period in which to lodge an appeal to the high court without any provision for a discretionary extension of time. The time limit does not itself impair the very essence of the right of access to the court. However, the absence of any discretionary power to extend time in exceptional cases may give rise to a breach of the right of access to the court under Article 6 ECHR.
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[43] For these reasons, I consider this to be an exceptional case, and I grant an extension of time. Applying the principles in Pomiechowski, Adesina and Stuewe to this case, I consider that application of the surrogacy principle would have the effect of unjustly impairing the appellant's right of access to the court in breach of article 6 ECHR." (Thalliainayagam v. GMC [2025] EWHC 1253 (Admin), Lang J)
"[39] In the Education Act 2002, Parliament made provision for a 28 day period from the date of service of a prohibition order within which to lodge an appeal to the High Court, without any provision for a discretionary extension of time. A 28 day period also applies to other disciplinary appeals (see e.g. the Nursing and Midwifery Council (Adesina) and the Health and Care Professions Council (Stuewe)). The United Kingdom enjoys a margin of appreciation in determining the statutory time limit and in my view, the legitimate aim of the 28 days time limit is to provide finality and certainty, which is desirable for both the practitioner and the regulator who is responsible for protecting the public from teachers who have been found guilty of unacceptable professional conduct. In my judgment, the 28 day time limit does not impair the very essence of the right of access to the court, and it is a proportionate restriction on the exercise of the right of appeal, applying the principles confirmed in Stubbings for limitation periods. However, the absence of any discretionary power to extend time in exceptional cases may give rise to a breach of the right of access to the court under Article 6 ECHR. The Court of Appeal has applied the approach in Pomiechowski to statutory appeals in professional disciplinary cases in Adesina and Stuewe, and I am bound to do the same in this case.
[40] I consider that there are exceptional circumstances in this case, and application of the surrogacy principle would have the effect of impairing the Appellant's right of access to the Court, in breach of Article 6 ECHR. The Appellant "personally has done all he can to bring [the appeal] timeously" (per Maurice Kay LJ in Adesina at [15], citing Lord Mance in Pomiechowski, at [39]). The Appellant was aware of the strict deadline and regularly checked on the progress of the appeal and its preparation. He did everything that was asked of him by his solicitors. The delay in filing was entirely the fault of his solicitors. His solicitors misled him by informing him that the appeal had been lodged on 14 December 2022 when in fact no valid appeal had been lodged on that date. They did not inform him that an extension was needed until 15 August 2023." (McCallum v Secretary of State for Education [2024] EWHC 87 (Admin), Lang J)
- Normal inability of parties to recover costs is positively intended to improve access to justice
"[17] First, Eclipse’s interpretation of rule 5(3) robs rule 10(1) of much of its force. The purpose of rule 10(1) is to shut out the FTT from making cost-shifting orders in all “ordinary” cases save in those where a party or a party’s legal advisers have behaved unreasonably or worse, and even in Complex cases the taxpayer can opt to avoid cost-shifting. While this would prevent a taxpayer from recovering costs from the Revenue, its principal purpose is no doubt to protect a taxpayer from a costs exposure which goes beyond having to pay his own lawyers. Warren J said in Atlantic Electronics Ltd v Revenue and Customs Comrs [2012] STC 931, para 8, that the policy that “in cases other than Complex cases … the inability to recover costs is not seen as likely to lead to a denial of access to justice” but that “in Complex cases, the choice of the taxpayer is to prevail”. The only quarrel I have with that is that it seems to me that in non-Complex cases, the normal inability of either the taxpayer or the Revenue to recover costs is positively intended to improve access to justice in the majority of such cases." (Eclipse Film Partners No 35 LLP v. HMRC [2016] UKSC 24)
- Issue estoppel kept with narrow limits due to impact on access to justice
"[38] Issue estoppel may have the effect of restricting or denying a litigant's access to court to vindicate what is otherwise a good claim or of preventing a litigant from raising what is otherwise a good defence to a claim against them. When it applies, it involves a serious interference with the ordinary entitlement of litigants to present their claims and to defend themselves according to a proper understanding of their legal rights. That is a powerful effect. Conscious of this, and of the availability of and ground covered by the doctrine of abuse of process as a flexible mechanism to accommodate the private and public interests involved in the conduct of successive rounds of litigation, the courts have been astute to ensure that issue estoppel is kept within the narrow limits which are appropriate for a doctrine having such an effect." (Skatteforvaltningen v. MCML Ltd [2025] UKSC 19)