Petch v Gurney (Inspector of Taxes): CA 8 Jun 1994

The thirty day time limit for the forwarding of a case stated is mandatory. The Court of Appeal has no discretion to extend the time limit. Millett LJ analysed the position by reference to the traditional dichotomy of directory or mandatory provisions, saying: ‘The question whether strict compliance with a statutory requirement is necessary has arisen again and again in the cases. The question is not whether the requirement should be complied with; of course it should: the question is what consequences should attend a failure to comply. The difficulty arises from the common practice of the legislature of stating that something ‘shall’ be done (which means that it ‘must’ be done) without stating what are to be the consequences if it is not done. The Court has dealt with the problem by devising a distinction between those requirements which are said to be ‘mandatory’ (or ‘imperative’ or ‘obligatory’) and those which are said to be merely ‘directory’ (a curious use of the word which in this context is taken as equivalent to ‘permissive’). Where the requirement is mandatory, it must be strictly complied with; failure to comply invalidates everything that follows. Where it is merely directory, it should still be complied with, and there may be sanctions for disobedience; but failure to comply does not invalidate what follows.’ and ‘The taxpayer’s argument, therefore, comes to this: that the requirement that the Case Stated be transmitted to the High Court is mandatory; but the requirement that this be done within thirty days is not. This is not an easy proposition to accept. Where statute requires an act to be done in a particular manner, it may be possible to regard the requirement that the act be done as mandatory but the requirement that it be done in a particular manner as merely directory. In such a case the statutory requirement can be treated as substantially complied with if the act is done in a manner which is not less satisfactory having regard to the purpose of the legislature in imposing the requirement. But that is not the case with a stipulation as to time. If the only time limit which is prescribed is not obligatory, there is no time limit at all. Doing an act late is not the equivalent of doing it in time . . This probably cannot be laid down as a universal rule, but in my judgment it must be the normal one. Unless the Court is given a power to extend the time, or some other and final mandatory time limit can be spelled out of the statute, a time limit cannot be relaxed without being dispensed with altogether; and it cannot be dispensed with altogether unless the substantive requirement itself can be dispensed with.’


Ind Summary 11-Jul-1994, Gazette 13-Jul-1994, Times 08-Jun-1994, [1994] 3 All ER 731, [1994] EWCA Civ 27, [1994] STC 689




Taxes Management Act 1970 56(4)


England and Wales

Cited by:

Cited7 Strathay Gardens Ltd v Pointstar Shipping and Finance Ltd and Another CA 15-Dec-2004
The tenants served a notice on the landlord to enfanchise their properties. The landlord’s counter-notice failed to state whether any estate management scheme existed. The tenants said the counter-notice was invalid.
Held: The landlord’s . .
CitedJJB Sports Plc, Regina (On the Application of) v Telford and Wrekin Borough Council Admn 5-Nov-2008
The authority’s demand notice was served later than was practicable. The company now appealed against a liability order.
Held: The ratepayer’s appeal by way of Case Stated was dismissed. ‘demand notices must be served by the relevant authority . .
CitedMatheson v Mazars Solutions Ltd EAT 16-Dec-2003
EAT Practice and Procedure – Application. The application had been presented timeously at the ET in Edinburgh, but was out of time when retransmitted to Glasgow. The tribunal had found the Edinburgh office to be . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Litigation Practice, Taxes Management

Updated: 19 May 2022; Ref: scu.84684