Late but legitimate: permission granted for judicial review despite delay

In Weis v HMRC [2025] EWHC 2479 (Admin) the Administrative Court has granted permission for the taxpayer to proceed with an application for judicial review despite a five year delay in bringing a claim following HMRC’s issue of closure notices.

The renewed application for judicial review concerned HMRC’s past statements and whether they created a legitimate expectation that the taxpayer would be treated as non‑UK domiciled for 2005–2013, with foreign income and gains taxed on the remittance basis.

The judgment provides guidance on when time starts to run for judicial review in tax disputes and beyond, the limits of alternative remedies, and the viability of arguments concerning legitimate expectations based on HMRC’s conduct and representations.

Background

The claimant, Mr Weis, challenged HMRC’s decision to issue closure notices in May 2019 for the tax years including 2005–2013. The basis for the closure notices was that Mr Weis was domiciled in the United Kingdom, not Israel, meaning his non-UK source income would be subject to UK tax. Mr Weis contended that correspondence from HMRC in 2000 and subsequent conduct gave rise to a substantive legitimate expectation that he would be treated as non-UK domiciled, and that HMRC would not retrospectively alter this position without notice.

Following the closure notices, Mr Weis lodged appeals with HMRC against the notices on 4 June 2019 and requested statutory reviews of the closure notices on 4 July 2021. The statutory review concluded in November 2021 in favour of HMRC and upholding the closure notices. Appeals against the closure notices were notified to the First-tier Tribunal (Tax Chamber) (“FTT”) on 20 December 2021. The substantive FTT appeal against the income tax charges covered the tax years 2005/06 and 2007/08 to 2015/16, which differed slightly to the judicial review. The FTT appeal was determined on 21 March 2025.

Alternative dispute resolution (“ADR”) may be appropriate in tax matters and is encouraged by the FTT. It is indicated in the judgment that an ADR process was entered into prior to the FTT appeal being heard.

Separately to the statutory proceedings, Mr Weis made a formal complaint to HMRC on 4 June 2021. This was rejected, escalated, rejected on tier 2 review and a complaint made to the Adjudicator’s Office (“AO”). The AO declined to review the complaint in May 2024. The taxpayer issued Judicial review proceedings, focusing on HMRC’s conduct and representations in June 2024, more than 30 months after the statutory review of the closure notices concluded. The taxpayer submitted that HMRC’s statements and conduct gave rise to a legitimate expectation that he would be treated as non-UK domiciled in the relevant period, and that he had relied on this expectation by filing his tax accordingly.

Initially, the application was refused on the papers, which the taxpayer applied to renew at a hearing.

Issues for the court

The judge, (Sheldon J) found that the taxpayer was outside of the ordinary time limit to bring the application, and therefore to obtain permission out of time the taxpayer had to satisfy the court that:

1. the claim was at least arguable; and
2. there was good reason to extend time beyond the usual limit of “promptly and within three months” of the grounds arising.

Decision

Sheldon J allowed an extension and for the judicial review application to proceed to a substantive hearing. The key findings were as follows:

• Legitimate expectation: The court held that it was clearly arguable that HMRC’s statements and conduct were “clear, unambiguous and devoid of relevant qualification,” and that the taxpayer relied on them - meeting the threshold for legitimate expectation. Permission for judicial review was therefore granted.
• When did time start to run?  The court determined that time for bringing a judicial review claim ran from the issue of the closure notices in 2019 as opposed to HMRC’s statutory review decision in 2021, or the Adjudicator’s Office decision not to adjudicate.
• Alternative remedies: The court found that the claimant’s pursuit of internal review, his complaint to the Adjudicator’s Office, and pursuit of ADR did not constitute suitable alternative remedies that would pause time running for the purposes of bringing a claim for judicial review in time.  
• Extension of time: Following issue of the closure notices, the court accepted it was reasonable for Mr Weis to seek an HMRC review first, so the period to December 2021 did not count against the taxpayer. Pursuit of complaints and ADR showed he did not “sit on his hands.” However, a 14‑month gap after ADR ended was unjustified. With reference to the decision in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983, the court held that the test is whether there is “good reason for extending time”, considering the importance of the issues, prospects of success, prejudice or detriment to good administration, and public interest. Despite the delay, the court found that:
  • The issues were important to the claimant (involving a tax liability of approximately £3.6 million), although not of wider public interest.
  • The claim was arguable, with a realistic prospect of success, particularly as the legitimate expectation claim was based on both HMRC’s letter in 2000 and subsequent HMRC conduct.
  • There was no real prejudice to HMRC or detriment to good administration, as HMRC was aware of the legitimate expectation argument at all material times.
  • The judicial review would likely have been stayed pending the outcome of the FTTappeal in any event.

Comment

The judgment expressly confirms that it can be cited as an authority for future cases in terms of its detailed consideration of an application to extend time. However, it is a surprising case in many respects, and should be considered on its facts. It is usual practice for taxpayers to allay themselves of different routes of recourse against HMRC where necessary, including where there is uncertainty around the appropriate forum. Where there may be public law grounds, bringing parallel statutory appeals, HMRC complaints and judicial review claims is common. It is important that taxpayers obtain prompt advice to ensure they protect their position where necessary and that deadlines, including judicial review, should be met.

The judgment signals a more flexible approach to time limits for judicial review in tax disputes, and possibly beyond, where there is an arguable case on the grounds (of which the decision maker has been made aware since shortly after the decision to be challenged), the stakes are considered high, and there is no or limited administrative prejudice. If seeking to rely on this case for an extension of time in non-tax cases,  caution will need to be exercised by potential claimants extrapolating the approach taken in this case in the context of the available remedies when challenging a decision of HMRC, on to the available appeal routes requiring exhaustion and alternative remedies applicable to the decisions of different public bodies.

In any event, this judgment provides important clarification on the approach to extending time for judicial review in tax cases, particularly where the taxpayer has pursued alternative remedies and is relying on a legitimate expectation argument. The court emphasised that delay is not determinative rather, the broader context, including the merits of the claim and the absence of prejudice, must be considered.