Weis after the event

In Aubrey Weis v HMRC [2025] EWHC 2479 (Admin), the High Court granted the taxpayer permission to bring a judicial review claim against HMRC's decision to treat him as UK domiciled, despite being significantly out of time.

This blog is based on an article written by Adam Craggs and Liam McKay that was published in Taxation on 24 November 2025.

Judicial review remains a vital mechanism through which taxpayers can hold HMRC to account in the exercise of its powers. In recent years, success in such claims has become increasingly difficult, with the courts tending to afford HMRC a broad margin of discretion when it makes decisions affecting taxpayers. Against that backdrop, the High Court’s recent decision in Aubrey Weis v HMRC [2025] EWHC 2479 (Admin), is noteworthy because, despite the claim being significantly out of time, the Court allowed the taxpayer’s claim to proceed. 

Background

Mr Weis challenged certain closure notices issued by HMRC (presumably pursuant to section 28A TMA 1970, although the published decisions do not refer to the relevant statutory provision) in May 2019, in respect of a number of tax years between 2005 and 2013 (the Notices). HMRC had concluded that the taxpayer was domiciled in the UK during the period in question and was therefore not entitled to claim the remittance basis of taxation. As a result, the taxpayer's worldwide income was brought within the charge to UK tax, and the Notices sought additional tax of more than £6.3m. Mr Weis requested an internal review, following which the Notices were upheld in November 2021. Mr Weis appealed the Notices to the First-tier Tribunal (Tax Chamber) (FTT) in December 2021. 

The FTT dismissed Mr Weis' appeal, finding that he had obtained a domicile of choice in the UK prior to the tax years in question (see Aubrey Weis v HMRC [2025] UKFTT 348 (TC)).

Mr Weis also challenged the Notices by way of an application for judicial review, on the basis that he had a substantive legitimate expectation that HMRC would treat him as domiciled outside the UK and would not charge him tax retrospectively on a different domicile basis. That expectation was said to arise, inter alia, from correspondence with HMRC in 2000, in which HMRC had accepted Mr Weis' claim to be domiciled in Israel. Actions taken by HMRC in subsequent tax years were said to confirm that HMRC's decision regarding Mr Weis' domicile status in 2000 was being abided by. Mr Weis contended that, in reliance on HMRC's assurances, he filed his subsequent tax returns on the basis that he was not domiciled in the UK and planned his financial affairs accordingly, in particular, by making offshore investments that would not be taxable on the remittance basis.

However, in February 2013, HMRC advised Mr Weis that it would no longer abide by its decision in 2000, and that it intended to challenge Mr Weis' domicile retrospectively. That ultimately led to the issue of the Notices and subsequent appeal to the FTT. At the same time, Mr Weis also made a formal complaint to HMRC under Tier 1 of HMRC’s internal complaints process and raised the legitimate expectation issue. In October 2021, HMRC rejected the complaint and stated that no legitimate expectation had been created. In December 2021, Mr Weis requested that his complaint be considered under Tier 2 of HMRC's complaints process and provided a legal opinion from tax counsel that supported his claim of legitimate expectation. In May 2022, the Tier 2 complaint was rejected by HMRC. 

In August 2022, Mr Weis' agent made a complaint to the Adjudicator’s Office (the AO). The AO subsequently requested that the agent provide proof of authorisation to act. The agent claimed that they never received this letter. In any event, in the absence of any response to its letter, and unbeknownst to Mr Weis or his agent, the AO closed the complaint. At some subsequent point, Mr Weis and HMRC entered into HMRC's Alternative Dispute Resolution (ADR) process, and a deliberate decision was made by Mr Weis not to pursue the AO for a response to his complaint while he was actively pursuing ADR. Indeed, it was not until March 2024, that Mr Weis instructed solicitors to follow up on the complaint he had made to the AO. In May 2024, the AO advised that it would not review the complaint because the file had been closed.

The judicial review claim 

Mr Weis filed his judicial review claim in the High Court in June 2024 (within one month of being informed by the AO that it would not review his complaint), challenging HMRC's decision to issue the Notices. Permission to bring the judicial review was refused on the papers by the High Court on the basis that the claim was brought substantially out of time, there was no good reason to extend time, and because the claim was unarguable. Mr Weis then renewed his application to an oral hearing, arguing that there was a good reason for the Court to extend time to pursue the claim and that permission should be granted. In particular, Mr Weis asserted that, throughout the period in question, he had been pursuing an alternative remedy, namely, his complaints and ADR and, while he had not explicitly indicated an intention to bring judicial review proceedings during those processes, he asserted that HMRC was on notice at all times that he was relying upon a legitimate expectation argument. Accordingly, there was no prejudice to HMRC, nor was there any detriment to good administration because HMRC was always aware of the legitimate expectation point, and the judicial review proceedings would always have been stayed behind the appeal to the FTT in any event. Mr Weis further asserted that he had suffered detriment because he had, based on HMRC’s assurance and subsequent conduct, chosen to hold funds offshore and, had he understood that his domicile was being questioned, he would have been able to bring the funds onshore and generate higher returns, avoid fees incurred in keeping his funds offshore and he would have had the opportunity to make charitable contributions to offset his tax liabilities.

In contrast, HMRC argued that there was no good reason to extend time, and no arguable case to justify permission being granted in any event. HMRC asserted that it was prejudiced as a result of the very long delay in bringing the claim, and that no satisfactory explanation had been provided for the significant delay, noting there were substantial periods of time when no alternative remedy was being pursued by Mr Weis, with no explanation for that inactivity. HMRC also submitted that the referral to the AO was not a suitable alternative remedy for Mr Weis to pursue as the AO could not consider a complaint concerning legitimate expectation. Finally, HMRC asserted that the issues raised in the claim were not of importance for the public at large, did not require consideration of fundamental rights, and Mr Weis' legitimate expectation claim was weak.

The High Court's decision 

In considering the parties' competing arguments, the Court determined that the date from which time began to run for the judicial review claim was the date of the Notices in May 2019. However, the Court accepted that it was entirely reasonable for Mr Weis to have sought a statutory review before filing judicial review proceedings and therefore examined the 30 month period after the conclusion of the statutory review until the issue of the claim form, in order to ascertain whether the further period of delay was excusable or not.

The Court commented that the further period of delay of 14 months was not “wholly lacking in excuse”, noting that Mr Weis had pursued an internal review. However, in its view, the referral to the AO was not a suitable alternative remedy because the AO could not consider whether Mr Weis had a legitimate expectation, and it was not realistic to expect that that issue would, or could, have been resolved by the AO. Legitimate expectation was a matter that could only be addressed by the Administrative Court. Nevertheless, the Court accepted that the complaint to the AO demonstrated that Mr Weis did not simply sit on his hands and he was continuing to assert his reliance on the legitimate expectation throughout. Furthermore, although the Court did not have a great deal of information concerning the ADR process the parties engaged in, it considered it likely that it would have embraced the years covered by the asserted legitimate expectation.

However, the Court determined that there was an unjustified period of delay of 14 months between the end of the ADR and the filing of the judicial review claim. Nevertheless, the Court observed that the question was not whether there was a good reason for the delay, but whether there is a good reason to extend time. That question involved consideration of the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest. In deciding that there was, in this instance, a good reason to extend time, the Court noted the following factors:

• The issues raised by Mr Weis were important because, while they were not issues of significant public interest, as they essentially turned on the specific treatment of Mr Weis and did not involve wider policy issues, they were not trivial because they involved an obligation to pay tax of around £3.6m, which was a substantial sum.
• The issues were clearly arguable, and there was a realistic prospect of success. In particular, HMRC's statements and conduct were arguably clear, unambiguous and devoid of relevant qualification. The Court did, however, observe that the merits of the case were not clear-cut for either party.
• There was no real prejudice or detriment to good administration caused by the delay because, at all material times, HMRC was aware of the legitimate expectation point being raised by Mr Weis. It had therefore not come as a surprise to HMRC, and there was no suggestion that, for instance, the delay in bringing the proceedings affected the evidence that was available to deal with the claim.
• It is highly unlikely that the judicial review proceedings would have progressed in any significant way until the FTT had reached its decision on the underlying question of domicile. Accordingly, even if Mr Weis had commenced judicial proceedings sooner than he did, the substantive hearing would not have been heard until after the FTT appeal had concluded. HMRC was therefore not in a materially worse position in having to deal with the judicial review claim now, than it would have been in had the claim being issued promptly.

The Court therefore extended time to bring the judicial review proceedings and granted permission.

Comment

Rule 54.5 of the Civil Procedure Rules (CPR) imposes strict time limits on the bringing of judicial review claims, requiring a judicial review claim form to be filed "promptly and, in any event, not later than three months after the grounds to make the claim first arose". Those time limits are normally rigorously enforced by the High Court, and many taxpayers who have fallen foul of them, even by a matter of days, have had their applications for permission to bring a judicial review refused. Indeed, in recent years, the High Court has placed increasing emphasis on the requirement for "promptness", often treating the three-month longstop period as a secondary consideration when determining whether a claim for judicial review has been brought in time. It is also not uncommon for HMRC to raise a timing point in circumstances where a claim form has been filed close to the three-month time limit. The decision in Weis is therefore of particular note given the Court was willing to extend time despite what was, by any measure, a very significant delay.

Taxpayers seeking to bring a judicial review claim will take some comfort from the Weis decision and the fact that even a substantial delay will not necessarily mean the end of the road for their claim. Indeed, in the more recent decision in R (oao Robin Houldsworth) v HMRC [2025] EWHC 2848 (Admin), the High Court again extended time for a judicial review claim that was made late, citing the decision in Weis and taking a similar approach to weighing up the relevant factors when determining whether there was a good reason to extend time. In that regard, Weis emphasises that the court will weigh up all relevant factors and crucially, reaffirms that the focus is on whether there is good reason to extend time, rather than whether there was good reason for the delay, although the latter will inevitably be relevant to the court's decision. That approach necessarily invites a broader, more holistic assessment of the circumstances, than a narrow inquiry into the causes of the delay. As in Weis, those considerations may also include the magnitude of the tax liability at stake. This is a sensible approach and one that recognises that judicial review is a remedy of last resort and procedural failures can therefore have serious consequences for taxpayers, particularly where, as in Weis, the underlying claim has a real prospect of success and an alternative remedy had been pursued during the intervening period.   

That said, Weis carries a cautionary note. It is imperative that taxpayers should, whenever possible, strive to avoid having to rely on the court's discretion to extend time for bringing a judicial review claim. The Weis judgment is clear that claimants must pursue available alternative remedies promptly, but those alternative remedies must be realistically capable of resolving the dispute between the parties without recourse to judicial review. If not, a taxpayer who pursues such remedies and does not take steps to protect their position in relation to judicial review, may find that any claim falls outside the time limits contained in CPR 54.5 and the High Court may not be willing to exercise its discretion and extend the time period. It therefore remains the case that, in circumstances where it is considered that an appeal should be pursued before the FTT before commencing judicial review proceedings, it would be prudent to make a 'protective' application for judicial review within the proscribed time limits referred to in CPR 54.5. If appropriate, the judicial review proceedings can then be stayed pending the outcome of the appeal proceedings before the FTT.

As for HMRC, while the substantive arguments in Weis remain to be tested, the Court’s observations may give the department pause for thought. Domicile remains a high-profile and important issue, and HMRC will be acutely aware of the implications of a published judgment recognising a taxpayer’s legitimate expectation in this area, particularly one that could constrain HMRC's position in other cases. In that context, the circumstances in Weis may provide HMRC with sufficient cover to resolve the dispute by agreement rather than risk an adverse ruling, and it will be interesting to see whether a substantive judgment ultimately emerges in the next 12–18 months.

The judgment can be viewed here.