High Court hands down first judgment addressing the discoverability of a mistake of law

06/02/24

In 2020, the Supreme Court upheld HMRC’s appeal in the Franked Investment Income (FII) group litigation on the question of when a mistake of law could be discovered. Overturning the previous caselaw, the Court held that the limitation period would begin to run when a claimant could have sufficient confidence to justify embarking on the preliminaries of claim (and not, as had been the case under Deutsche Morgan Grenfell, when an appellate court had stated what the law is).

That left open the question, on the evidence, of when the Test Claimants in the group litigation could indeed have discovered their mistake of law.  The issue was remitted to the High Court and the Court heard both factual and expert evidence over a short trial in Autumn 2023.

Richards J has now handed down judgment on that issue.   The Court rejected the primary case put forward by the Claimants on the date of discoverability (which had been in 2004), but did not accept HMRC’s submission that the mistake in question could have been discovered by 1996: holding that the date of discoverability was in 2000. In the circumstances, some (but not all) of the claimants in the group litigation are out of time.

The judgment is here. It may be of interest as to how the Courts will treat the discoverability of a mistake of law.