David Southern, a barrister at Temple Tax Chambers, 3 Temple Gardens, acted for Michael Fleming (trading as Bodycraft) in the case against HM Revenue & Customs in which the House of Lords ruled that HMRC acted unlawfully when reducing the limitation period to claim back undue VAT without adequate notice or transitional period. The ruling has been called the VAT case of the decade and opens the door to £1 billion of claims.
What were the main challenges in this case, and the possible implications?
The main challenge was the decision to go to the Court of Appeal, having lost in both the VAT & Duties Tribunal and High Court. Mr Fleming had struggled to finance the case, but thought he had a point. If he had lost in the Court of Appeal, he would have faced a daunting bill for the Revenue’s costs. Fortunately, Mr Fleming and his solicitor, Neil Miller, were determined, dauntless and indomitable. At all stages, the case attracted a huge volume of inquiries from other taxpayers and their advisers.
What was your worst day as a lawyer?
Arnold v HMRC, a case in the Court of Appeal, concerning subcontractors in the construction industry. I had somewhat naively assumed we had a very reasonable case, but the Court of Appeal took an entirely contrary view.
What was your most memorable experience as a lawyer?
When working for the Inland Revenue, I was sent to explain to the senior partner of a leading firm of solicitors why we had lost a set of copied documents and then, for good measure, lost the originals. And why we thereafter denied that anything was amiss. This sad tale was received with a forbearance, magnanimity and awareness of the greater scheme of things, which would not now be possible.
Who has been the most influential person in your life?
Peter Pulzer, the politics tutor at Christ Church, Oxford, and Sir John Mummery, as standing counsel to the Inland Revenue, alike shared a sovereign ability to synthesise complex facts and concepts into simple issues.
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Why did you become a lawyer?
It was down to the influence of my doctoral supervisor, Ernst Joseph Cohn, a survivor of the immensely learned multilingual generation of Central European Jewish lawyers and academics who disappeared in the Holocaust. He regarded law as something written in the stars, rather than as a set of rules to be played with.
What would your advice be to anyone wanting a career in law?
Students today have to make early career choices. Nevertheless, I would say to get some experience outside law before going into the profession.
Where do you see yourself in ten years?
The fascination of tax is irresistible and totally absorbing. Hopefully doing more of what I do now.