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  • Employment
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  • Health & Community Care
  • Human Rights
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  • Media Law
  • Mediation / Arbitration
  • Pensions
  • Procurement and State Aid
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  • Public International Law
  • Tax Litigation
  • Activity from
    Jonathan Swift

  • Recent cases

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  • Article

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    GDPR Conference 2016 'GDPR and Public Authoriries'

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  • News

    Conduct and Pay in the Financial Services Industry: Published Today

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    11KBW in Hillsborough Chief Constable Dismissal Judicial Review

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    Remedies and enforcement (11KBW GDPR Conference 2016)

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Jonathan Swift QC

Jonathan Swift

Jonathan Swift QC

Practice Overview

Jonathan is excellent - a very compelling advocate and a brilliant legal mind."

"A very eminent and experienced barrister, who is at the top of his profession."

 "A consummate barrister. Exceedingly good on the law and very able in his submissions. ... Really good at getting through an awful lot of detail and translating it into something cogent and easy to follow."

"He is brilliant; fantastically clever and very persuasive. He gets to the point, tells them the answer and presses it home."

His work is just brilliant. He offers top quality written advocacy backed up by top quality oral advocacy

"An absolutely first-class lawyer. One of the cleverest people I've ever worked with." "He knows his stuff and has a very good courtroom presence."

"His attention to detail is very high and he's a wonderful strategist. His advice is extremely high quality and he's a pleasure to deal with."

 “excellent bet for heavyweight cases … an encyclopaedic ability to remember detail”

“a very strong advocate who stands out from the crowd ... a formidable opponent”

Chambers & Partners, and Legal 500

Jonathan has in-depth experience across the whole range of public law areas. This includes: human rights and civil liberties; constitutional law (including devolution issues); data protection and freedom of information; regulatory law (in particular energy regulation and financial regulation); EU Law; education; and strategic planning and environmental issues.

From 2006 to 2014 he was First Treasury Counsel, leading for the Government on major cases across the whole field of government activity and public administration.

Jonathan regularly appears in the Court of Appeal and in the Supreme Court (over 30 cases during the last 2 years). He appeared for the Government in the first appeal heard by the Supreme Court: Ahmed v HM Treasury ([2010] 2 AC 534, and 697), concerning the implementation of international sanctions against suspected terrorists and most recently in R(Youssef) v Foreign Secretary ([2016] UKSC 3) where he successfully defended a decision by the Foreign Secretary to agree to the imposition of economic sanctions by the United Nations on an Egyptian national, resident in the United Kingdom.

PUBLIC LAW and LOCAL GOVERNMENT

Jonathan’s experience includes dealing with complex infrastructure decisions, for example the expansion of Heathrow airport, the formulation of National Policy Statements under the Planning Act 2008, and the decision to build new nuclear power stations. He has advised and acted on both the domestic and international law challenges to the proposed new Hinkley Point C power station, including appearing before the Aarhus Committee and the ESPOO Committee.

Since returning to private practice Jonathan has acted both for and against central government and has resumed his highly-regarded local government practice (of which he had considerable experience prior to being appointed First Treasury Counsel).  Recent cases include R(Tilley v Vale of Glamorgan Council [2016] EWHC 2272 (QB) (concerning library closures, and obligations under the Children Act); R(National Aids Trust) v NHS England [2016] EWCA Civ 1100 (ability of NHS to meet the cost of preventative treatment for persona at risk of contracting HIV); R(Association of British Insurers) v Lord Chancellor (Court of Appeal, January 2017 – challenge to decision proposing a new discount rate to be applied to calculate damages in personal injury claims); Duckenfield v South Yorkshire Police Commissioner [2015] EWHC 3149 (Admin) (challenge to a decision to cease to meet the legal expenses incurred by police officers who were involved in the Hillsborough inquests); R(Jones) v Judicial Appointments Commission [2014] EWHC 1680 (Admin) (challenge to the eligibility criteria for judicial appointments); and R(Tower Hamlets LBC) v Secretary of State for Communities and Local Government [2014] EWHC 4363 (judicial review of the decision of the Secretary of State to inspect and intervene in a Council).

Jonathan has considerable experience of litigation involving challenges to funding decisions, for example challenges to university tuition fees (Hurley v Secretary of State for Business), and to the distribution of EU funds (Rotherham MBC v Secretary of State for Business).  He has also appeared in a range of important cases involving national security, immigration and nationality and extradition.

INFORMATION AND DATA PROTECTION

Highly-regarded in this practice area, Jonathan’s work encompasses the Environmental Information Regulations, FOIA and DPA. 

He is considered to have “masses of experience in the FOIA area” and has recently been involved in some of the most high-profile cases including the application of FOIA to the sealing of Royal wills (Brown v Attorney General); the disclosure of “private” correspondence between the Prince of Wales and government ministers (Evans v Information Commissioner; Evans v Attorney General); the disclosure of minutes of Cabinet meetings whether the deployment of troops to Iraq was discussed.

He also has wide experience on DPA issues, advising both public bodies, and private sector companies on data use and protection. He acted for the appellants in Dawson-Damer v Taylor Wessing LLP,concerning the scope of the legal professional privilege exemption in the Data Protection Act, and the discretion to refuse data sought by means of a subject access request  (judgment February 2017).

EDUCATION

Jonathan’s education practise encompasses all aspects of this practice area, from advising on challenges to the government’s education policy and decisions (including the decision to intervene in the Trojan Horse schools in Birmingham to resisting challenges against decisions by the Secretary of State to enforce Academy conversions (Warren School; Downhills School)He is currently advising in relation to alleged irregularities in the running of a school trust and has previously advised on funding arrangements for school developments; admissions arrangements; and exclusion appeals. In the higher education sphere, he successfully resisted a challenge to the government’s decision to bring in University tuition fees (Hurley and Moore).

CIVIL LIBERTIES AND HUMAN RIGHTS

Jonathan has appeared in a number of very high profile civil liberties/human rights disputes, Hotak v Secretary of State for Defence (territorial reach of the Equality Act 2010); Gallestegui v Westminster City Council (freedom to protest in Parliament Square); Barda v Mayor of London (restrictions on access by fencing off Parliament Square); Nicklinson v DPP(the right to die); N v Secretary of State for Health(Human Rights Act challenge to the smoking ban); Hurley and Moore v Secretary of State for Business (introduction of university tuition fees, and compatibility with the right to education); and Ghai v Home Secretary (compatibility of legislation preventing cremation by open air funeral pyre with the Human Rights Act).

SANCTIONS AND INTERNATIONAL LAW

Jonathan has particular experience on the application of international sanctions schemes to individuals and corporations. He has both advised on all recent sanctions schemes, from the UN sanctions directed to Al Qaida, to the more recent EU sanctions schemes applied to Egypt, Syria, Zimbabwe, Iran and Libya, and has been instructed in all the leading cases, including Ahmed v HM Treasury, Bank Mellat v HM Treasury, Youssef v Foreign SecretarySarkandi v Foreign Secretary, and Bredenkamp v Foreign Secretary. He has also acted in cases concerning the commercial impact of sanctions schemes, for example IRISL v Steamship Mutual Underwriting and HM Treasury (frustration of insurance contract), and Maud v Libyan Investment Authority(the ability of a sanctioned entity to initiate bankruptcy proceedings)

Jonathan’s international law work has included cases before the Court of Human Rights in Strasbourg, and cases in Geneva before the Aarhus Convention and the Espoo Convention compliance committees. He also has extensive experience on the use of international law (including the United Nations Charter, and UN Security Council resolutions) in domestic proceedings; and the use of foreign law in domestic proceedings.

EU LAW

Many of Jonathan’s cases involve EU law. He represents HM Revenue & Customs in Littlewoods v HMRC the so-called “case of the century”, concerning the impact of EU law on claims to recover overpaid tax. He acted for the Secretary of State in Rotherham MBC v Secretary of State for Business, a challenge, based on EU law to the distribution of EU structural funds. He acted for the Secretary of State in An Taisce v Secretary of State for Energy and Climate Change, a challenge based on EU law and international law (the Aarhus Convention and the Espoo Convention) to the decision to permit construction of a new nuclear power station.

EMPLOYMENT

Prior to becoming First Treasury Counsel Jonathan had a very-highly regarded employment law practice. He was consistently rated as a leader in the field.  He has continued to practice in this area, advising on matters involving senior staff exits, restrictive covenants, discrimination, TUPE, redundancy consultations and more recently team moves, and whistleblowing. His clients have included City financial institutions, local authorities and public bodies. His recent cases include R(Hotak) v Defence Secretary ([2016] EWCA Civ 438) concerning the extra-territorial reach of the employment provisions in the Equality Act 2010.

Cases

Public law, civil liberties and human rights

Youssef v Foreign Secretary
[2016] UKSC 3
The court would apply the usual public law principles when considering the legality of a decision of the Foreign Secretary to agree to an individual’s name being placed on a sanctions list maintained by the Security Council of the United Nations.

R(Association of British Insurers) v Lord Chancellor
Administrative Court/Court of Appeal, January 2017.
Challenge to a proposal to change the discount rate set by statute, and applied to calculate damages in all personal injury claims. The case concerned whether the proposed decision (a) amounted to a retrospective use of statutory powers; and (b) was taken in breach of the insurers’ legitimate expectations.

R(National Aids Trust) v NHS England
[2016] EWCA Civ 1100
Challenge to a decision by NHS England that it did not have the power to commission a treatment designed to prevent the spread of HIV. The court considered the meaning of the provisions in Part 1 of the NHS Act 2006, by which NHS England had been established.

R(Hottak) v Defence Secretary
[2016] EWCA Civ 438; [2015] EWHC 1953 (Admin)
Legality of a scheme for the protection of Afghans working with UK forces in Helmand Province; extra-territorial reach of Parts 3 and 5 of the Equality Act 2010; discretion to refuse relief on a claim based on the public sector equality duty.

R(Tilley) v Vale of Glamorgan Council
[2016] EWHC 2272 (QB)
Challenge to a decision by a Council to close some public libraries, and to replace them with libraries funded by the Council but staffed by volunteers. The claim alleged that the Council had acted in breach of its duties under the Libraries Act 1964; and in breach of obligations under the Children Act 2004; and under the UN Convention on the Rights of the Child (as incorporated into Welsh law by the Rights of Children and Young Persons (Wales) Measure 2011.

Barda v Mayor of London
[2015] EWHC 3584 (Admin)
Whether decision to fence-off part of Parliament Square consistent with ECHR article 10 and 11 rights

Duckenfield v South Yorkshire Police Commissioner
[2015] EWHC 3149 (Admin)
Challenge to a decision to cease funding the legal costs incurred by police officers involved in an inquest.

R (An Taisce) v Secretary of State for Energy and Climate Change
[2013] EWHC 4161 (Admin); [2014] EWCA Civ 1111
EU law; challenge to decision to permit construction of nuclear power station; whether decision contrary to EU law; consideration of provisions of the Aarhus Convention and the Espoo Convention. Also appeared for the Secretary of State in the related proceedings (in 2014 and 2015) before the Aarhus Convention Compliance Committee, and the Espoo Convention Compliance Committee.

R (Rotherham Borough Council) v Secretary of State for Business Innovation and Skills
[2014] EWHC 232 (Admin); [2014] EWCA Civ 1080; and [2015] UKSC 6
EU law; challenge to distribution of funds provided from the EU Structural Fund; compliance with the public sector equality duty

R (Evans) v Attorney General
[2014] EWCA Civ 253 and 254; and [2013] EWHC 1960 (Admin)
Freedom of Information; correspondence between The Prince of Wales and government ministers. Legality of use of the power under section 53 FOIA to override decision of the Tribunal

Attorney General for England and Wales v Counsel General for Wales
[2014] UKSC 43 SC, July 9 2014 [2014] 1 WLR 2622

R (Warren Comprehensive School and another) v Secretary of State for Education
[2014] EWHC 2252 (Admin), QBD, July 10 2014, [2014] ELR 530
In deciding to convert a maintained school into an academy, the Secretary of State had not made a material error of fact, failed to take into account likely disruption or been premature or irrational

R (Jones) v Judicial Appointments Commission
[2014] EWHC 1680 (Admin), Div Ct, May 23 2014, [2014] ACD 107
Judicial Appointments Commission entitled not to appoint a candidate who had seven penalty points on his driving licence

R (New London College) v Secretary of State for the Home Department
[2013] UKSC 51, [2013] 1 WLR 2358
Immigration Rules; conditions for legality of guidance for sponsors

R (Patel) v Secretary of State for the Home Department
[2013] UKSC 72
Public law, immigration; no obligation on the Secretary of State to issue removal decisions immediately following decisions to refuse applications for leave to remain in the United Kingdom.

Bank Mellat v HM Treasury
[2013] UKSC 38 and 39, [2013] 3 WLR 179
Public law, national security: powers under the Counter Terrorism Act 2008 to impose economic sanctions on an Iranian Bank. Power of Supreme Court to consider closed evidence.

R (Dowsett) v Secretary of State for Justice
[2013] EWHC 687
Search of male prisoner by female prison officer not unlawful sex discrimination (regardless of the fact that a male prison officer would not undertake a search of a female prisoner).

Gleeson Developments Limited v Secretary of State for Communities and Local Government
[2013] EWHC 3166 (Admin)
Planning; powers under the Town and Country Planning Act. Secretary of State’s decision to recover a planning appeal for his own determination was effective even though not notified to the applicant for planning permission.

Islington LBC v Secretary of State for Communities and Local Government
[2013] EWHC 4009 (Admin)
Planning. Challenge to refusal by Secretary of State to allow local authorities exemptions from the provisions of the General Permitted Development Order.

R (First Stop) v HMRC
[2013] EWCA Civ 183
No requirement to state reason for detention when detaining goods pursuant to powers under the Customs Excise Management Act 1979

Gallestegui v Westminster City Council, and Home Secretary
[2013] EWCA Civ 28
Civil liberties: rights of protest in Parliament Square.

R (AM and Nicklinson) v DPP
[2012] EWHC 2381 (Admin), [2012] HRLR 32
Human rights: challenge under the Human Rights Act to the criminal law on assisted suicide.

Irfan v Home Secretary
[2012] EWCA Civ 1471
Human rights, national security. Legality of registration requirements for persons convicted of terrorist crimes.

Alvi v Secretary of State for the Home Department
[2012] UKSC 33, [2012] 1 WLR 2208
Public law: legality of Immigration Rules, and the effect of section 3(2) of the Immigration Act 1971.

RT (Zimbabwe) v Secretary of State for the Home Department
[2012] UKSC 38 [2012] 3 WLR 345
Asylum claim: persecution on grounds of political belief.

Eastenders v HMRC
[2012] EWCA Civ 689, [2012] STC 2036; [2014] UKSC 34, [2014] 2 WLR 1580
Public law. The conditions for use of the power to detain goods under section 139 of the Customs and Excise Management Act 1979.

R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills
[2012] EWHC 201 (Admin)
Challenge to the Secretary of State’s decision to permit English universities to charge tuition fees of up to £9,000 per annum. Complaint under the Human Rights Act, and on the basis that when the decision to was taken, the requirements of the public sector equality duties had not been observed.

R (Medical Justice) v Secretary of State for the Home Department
[2011] EWCA Civ 1710
Whether a practice by which less than 24 hours notice of deportation was given to persons who had no right to remain in the United Kingdom was consistent with the common law right of access to a court.

R (Hillingdon Borough Council) v Secretary of State for Transport
[2010] EWHC 626 (Admin)
Climate Change Act 2008. Planning Act 2008. Secretary of State’s policy for expansion of Heathrow Airport.

R (Ghai) v Newcastle City Council, and Secretary of State for Justice
[2009] EWHC 978 (Admin)
ECHR Article 9; legislation preventing cremation by open air funeral pyre.

R (N) v Secretary of State for Health
[2009] EWCA Civ 795
Compatibility of the smoking ban with ECHR Article 8.

R (Bhatt Murphy and others) v Secretary of State for Justice
[2008] EWCA Civ 755
Decision by the Secretary of State to cease payments of under a discretionary compensation scheme to victims of miscarriages of justice. Procedural and substantive legitimate expectations.

R (Shields) v Secretary of State for Justice
[2008] EWHC 3102 (Admin)
Availability of the prerogative of mercy where prisoner convicted abroad.

R (Brown) v Secretary of State for Business Enterprise and Regulatory Reform
[2008] EWHC 3158 (Admin)
Governmental decision on post office funding; consistency with the public sector equality duties.

Information and data protection

Dawson-Damer v Taylor Wessing LLP
[2015] 1 WLR 28
Scope of the legal professional privilege exemption in the Data Protection Act; correct approach to the Court’s discretion to refuse relief to a person making a subject access request.

BT Plc and Wiltshire County Council v Information Commissioner
EA/2015/114
Successful appeal against a decision of the Information Commissioner under FOIA which required publication of sensitive commercial information contained in contracts made between the County Council and BT

R (Evans) v Attorney General
[2014] EWCA Civ 253 and 254; and [2013] EWHC 1960 (Admin)
Freedom of Information; use of power under section 53 FOIA to override decision of the Tribunal; correspondence between The Prince of Wales and government ministers

Evans v Information Commissioner
[2012] UKUT
Information law: disclosure under FOIA and EIR of correspondence between The Prince of Wales and Government ministers.

Birkett v DEFRA
[2012] EWCA Civ 1606, [2012] 2 CMLR 5
Where a public authority had initially relied upon a particular exception when refusing to release environmental information under the Environmental Information Regulations 2004, it was consistent with the Directive on Public Access to Environmental Information for the authority to rely on different exceptions in subsequent proceedings before the Information Commissioner or the First-tier Tribunal.

Cabinet Office v ICO & Lamb
(EA/2008/0024 & 0029) [2011] 1 Info LR 782
Whether minutes of Cabinet meetings should be disclosed under the Freedom of Information Act 2000. The meetings were ones where the Cabinet discussed whether to deploy UK troops in Iraq.

HM Treasury v Information Commissioner
[2009] EWHC 1811 (Admin), [2011] 1 Info LR 815
Law Officers advice to Ministers, given in relation to the Financial Services and Markets Act 2000, not subject to disclosure under the Freedom of Information Act

Constitution and devolution

Attorney General for England and Wales v Counsel General for Wales
[2014] UKSC 43 SC, July 9 2014 [2014] 1 WLR 2622

Attorney General v Counsel General for Wales
[2012] UKSC 53, [2012] 3 WLR 1294
Constitutional law, devolution: power of the Welsh Assembly under the Government of Wales Act 2006 to alter the powers of the Secretary of State for Wales.

Imperial Tobacco v Lord Advocate
[2012] UKSC 61
Constitutional law, devolution: powers of the Scottish Parliament to regulate the sale of cigarettes.

Sanctions and international law

Youssef v Foreign Secretary
[2016] UKSC 3
The court would apply the usual public law principles when considering the legality of a decision of the Foreign Secretary to agree to an individual’s name being placed on a sanctions list maintained by the Security Council of the United Nations.

Libyan Investment Authority v Maud
[2016] EWCA Civ EWCA 788; Ch D [2015] EWHC 2093 Ch
Construction of EU Regulation by reference to underlying United Nations Security Council resolutions; whether an entity subject to international sanctions (in the form of an asset freeze) could commence proceedings for recovery of a debt.

R v R
[2015] EWCA Civ 796, [2016] 2 WLR 796
Extra-territorial effect of EU sanctions; whether payment outside the EU amounted to evasion of EU sanctions

Sarkandi and others v Foreign Secretary
[2015] EWCA Civ 687
Application for use of closed evidence under the Justice and Security Act 2013. First consideration of use of powers under the Act. 

Bank Mellat v HM Treasury
[2013] UKSC 38 and 39
Public law, national security: powers under the Counter Terrorism Act 2008 to impose economic sanctions on an Iranian Bank.

Bredenkamp v Foreign Secretary
[2013] EWHC 2480 (Admin), and [2012] EWHC 3297 (Admin)
EU law sanctions against Zimbabwe. Whether challenge to decision by the Foreign Secretary to ask the EU Council to apply sanctions was justiciable in the English courts

Mustafa v HM Treasury
[2012] EWHC 3578 (Admin)
Application of ECHR article 6 to litigation concerning the application UN Security Council sanctions in the United Kingdom.

Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting, and HM Treasury
[2010] EWHC 2661 (Comm)
Financial Restrictions (Iran) Order 2009. Whether contract of insurance frustrated following the grant of a Treasury licence.

Al Jedda v Secretary of State for Defence
[2009] EWHC 397 (QB)
Claim for damages for false imprisonment in Iraq; private international law; interpretation of Iraqi Constitution; act of state doctrine

M v HM Treasury
[2008] UKHL 26
UN Sanctions pursuant to Security Council resolution 1267. Whether payment of social security benefits to the families of suspected terrorists was prohibited under international law. Meaning and effect of the EU law Regulation which implemented the sanctions.

National security, and nationality

Sarkandi and others v Foreign Secretary
[2015] EWCA Civ 687
Application for use of closed evidence under the Justice and Security Act 2013. First consideration of use of powers under the Act.

Irfan v Home Secretary
[2012] EWCA Civ 1471
Human rights, national security: legality of registration requirement for persons convicted of terrorist crimes.

Al Jedda v Secretary of State for the Home Department
[2013] UKSC 62; and [2012] EWCA Civ 358
Public law, national security: deprivation of British nationality by reason of terrorist action abroad.

Al Jedda v Secretary of State for Defence
[2009] EWHC 397 (QB)
Claim for damages for false imprisonment in Iraq; private international law; interpretation of Iraqi Constitution; act of state doctrine.

Y1 v Home Secretary
SIAC 2012
Deprivation of nationality by reason of activity abroad contrary to the interests of the United Kingdom

Secretary of State for the Home Department v Lord Alton of Liverpool
[2008] EWCA Civ 443
Terrorism Act 2000 and the circumstances in which a proscribed organisation is regarded as having ceased to engage in terrorism.

EU law, revenue, commercial

Littlewoods v HMRC
[2015] STC 2014( Court of Appeal). Appeal to the Supreme Court pending CJEU judgment
C-591/10, 19 July 2012 [2010] STC 2072 and [2011] STC 271 (Chancery Division)
EU law and revenue: rights under EU law to payment of interest on overpaid tax. Application of issue estoppel to tax litigation. Whether provisions of the VAT Act exclude common law restitution claims. Mistake of law. Scope and extent of restitutionary measure of damages where money paid by mistake

European Brand Trading v HMRC
[2016] EWCA Civ 90
Jurisdiction of the Upper Tribunal to determine whether seizure of goods for non-payment of excise duty was lawful

Totel v HMRC
[2016] EWCA Civ 1310
Whether section 84 of the VAT Act is compatible with the EU law principle of equivalence. First time consideration of the legality of section 84 of the VAT Act by the Court of Appeal. (Section 84 of the VAT Act is the provision which requires persons challenging decisions of HMRC on VAT matters to pay the VAT due before appealing to the Tribunal, unless paying the VAT would cause the person hardship.)

R (An Taisce) v Secretary of State for Energy and Climate Change
[2013] EWHC 4161 (Admin); [2014] EWCA Civ 1111
EU law; challenge to decision to permit construction of nuclear power station; whether decision contrary to EU law; consideration of provisions of the Aarhus Convention and the Espoo Convention

R (Rotherham Borough Council) v Secretary of State for Business Innovation and Skills
[2014] EWHC 232 (Admin); [2014] EWCA Civ 1080; and [2015] UKSC 6
EU law; challenge to distribution of funds provided from the EU Structural Fund; compliance with the public sector equality duty

R (UK Association of Fish Producer Organisations) v Secretary of State for Environment food and Rural Affairs
[2013] EWHC 1959 (Admin)
EU law; decision to reduce fish quota available to English registered fishing vessels.

HSBC and Bank of NY Mellon v HMRC
[2012] UKFTT 163
EU law and revenue: compatibility of Stamp Duty Reserve Tax with EU law.

Investment Trust Company v HMRC
[2012] EWHC 458 (Ch) [2012] STC 1150; and also [2013] EWHC 665 (Ch)
Commercial, and EU law: restitution claim against HMRC made by consumer who had been overcharged VAT by a supplier of goods.

FJ Chalke v HMRC
[2009] EWHC 952 Ch
VAT, right in EU law to payment of compound interest on overpaid tax.

R (Government Actuary Department) v Pensions Ombudsman
[2013] EWCA Civ 901
Pensions; jurisdiction of the Pensions Ombudsman

Extradition, mutual legal assistance, proceeds of crime

R v Waya
[2012] UKSC 51
Recovery of proceeds of crime: ability to recover replacement assets.

CPS and Home Secretary v Gohill
[2012] EWCA Civ 1550
Mutual legal assistance: prohibition on re-use of evidence provided by overseas public authorities.


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Jonathan Swift


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