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19 Feb 2008
Appeal Status

Trinity supreme court hearing adjourned

2008 case note - Supreme Court adjourned the Trinity appeal hearing until 23 June 2008 – tax avoidance.

Ben Nevis Forestry Ventures Limited, Accent Management Limited and Ors v The Commissioner of Inland Revenue


The Supreme Court has adjourned the Trinity appeal hearing until 23 June 2008.


The appellants are the taxpayers in the "Trinity forestry scheme" test case proceedings. A five-day fixture was set down to commence in the Supreme Court on 3 March 2008. The Ben Nevis appellants (SC 43/2007) applied for an adjournment of the fixture and the Accent Management appellants (SC 44/2007) supported the application. The Commissioner opposed the application for an adjournment.

Leave to appeal to the Supreme Court was granted on 9 October 2007. After allocating a fixture commencing on 12 February 2008, an application for an adjournment was made and was granted unopposed on 17 December 2007. In the Notice advising of the adjournment, the Registrar allocated a fixture commencing 3March 2008 having ascertained the date was suitable with Mr Carruthers QC for Ben Nevis and Mr Gudsell QC for Accent Management. The Registrar was aware that Mr Stewart QC was not available and the notice of the fixture to the parties noted specifically that it was a date on which "the majority"of counsels were available.

It was not until 17 January 2008 that Mr Stewart QC filed a further application for an adjournment. He had not earlier notified counsel for the Commissioner or the Court that such an application was contemplated.


The appellants' application for an adjournment was granted, the 3 March 2008 fixture was vacated and the hearing adjourned to 23 June 2008.

The Court said that under the Supreme Court Rules, the Registrar was obliged to consult with counsel before allocating a fixture but the agreement of counsel was not required. Although the Registrar should try to accommodate the preferences of counsel, it might not be possible to do so and also meet the interests of other parties and the public interest in the orderly dispatch of the work of the Supreme Court.

The principal reason advanced for the adjournment was Mr Stewart's conflicting fixture on 3 March 2008 in the High Court. At the adjournment hearing, Mr Stewart said he considered his obligations to his clients precluded him withdrawing from the cases which clashed with the Supreme Court appeal. In addition, it was said that counsel for the Ben Nevis parties had been unable to confer in preparation for the hearing.

The Supreme Court noted that there were a number of unsatisfactory aspects about the course of events. The Court noted that it was "hard to accept" that counsel for Ben Nevis could not have immediately applied for an adjournment and that it was "harder still to accept"that informal advice could not have been immediately given; the overall effect being that the Supreme Court was "presented with something of a fait accompli".

The Supreme Court found that it was "unsatisfactory"that the Registrar was expected to consult about the fixture separately with all counsel who had the joint conduct of one appeal. Counsel could not expect the preferences of all counsel to be accommodated. However, the Court also said that it would be unreasonable to impose a fixture without notice to allow counsel and the parties to adjust other commitments, including relinquishing briefs; but said that in most cases three months should be more than sufficient time. The Court went on to say that if counsel could not meet a fixture allocated on this basis, it would usually be necessary for other counsel to be instructed.

An adjournment was granted on the basis that the appellants would be "clearly prejudiced"by the insufficient preparation by their counsel. The Court acknowledged that the case raised matters of "substantial public importance on which the Supreme Court is entitled to expect submissions which are well prepared from counsel who are on top of their arguments". In this case, the Court held that it was in the interests of justice for the fixture to be vacated.

Tax Administration Act 1994, Income Tax Act 1994