[IN THE KING'S BENCH DIVISION AND IN THE COURT OF APPEAL.]

THE KING v. THE GENERAL COMMISSIONERS FOR THE PURPOSES OF THE INCOME TAX ACTS FOR THE DISTRICT OF KENSINGTON.

Ex parte PRINCESS EDMOND DE POLIGNAC.

Revenue - Income Tax - Profits arising from Foreign Possessions - Place of Assessment - Jurisdiction of Commissioners at Place of Residence - Retrospective Effect of Legislation - Income Tax Act, 1842 (5 & 6 Vict. c. 35), s. 106 - Taxes Management Act, 1880 (43 & 44 Vict. c. 19), s. 52 - Finance (No. 2) Act, 1915 (5 & 6 Geo. 5, c. 89), s. 32 - Practice - Rule nisi - Prohibition - Misleading Affidavit - Summary Discharge of Rule - Inherent Power in Court.

If on the argument showing cause against a rule nisi the Court comes to the conclusion that the rule was granted upon an affidavit which was not candid and did not fairly state the facts, but stated them in such a way as to mislead and deceive the Court, there is power inherent in the Court, in order to protect itself and prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the merits.

In April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother's house, 213, King's Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent

part of the time at 213, King's Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply, it appeared that in February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in the name of the applicant's brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant.

The Divisional Court, without dealing with the merits of the case, discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to her application. On appeal:-

Held, that the rule of the Court requiring uberrima fides on the part of an applicant for an ex parte injunction applied equally to the case of an application for a rule nisi for a writ of prohibition.

Held, therefore (affirming the decision of the Divisional Court), that, there having been a suppression of material facts by the applicant in her affidavit, the Court would refuse a writ of prohibition without going into the merits of the case.

Dalglish v. Jarvie (1850) 2 Mac. & G. 231, The Hagen [1908] P. 189, 201, and Republic of Peru v. Dreyfus Brothers & Co. (1886) 55 L. T. 802, 803, followed and applied.

Held, also, by the Court of Appeal, that, assuming but without deciding that the applicant was at any time ordinarily residing in Kensington, the Kensington Commissioners had jurisdiction in 1916, by virtue of s. 32 of the Finance (No. 2) Act, 1915, which repealed s. 108 of the Income Tax Act, 1842, to assess her to income tax on profits arising from foreign possessions under s. 106 of that Act for the financial year 1912-13.

RULE NISI for a prohibition.

By s. 2, Sched. D, to the Income Tax Act, 1853 (16 & 17 Vict. c. 34), income tax is payable "for and in respect of annual profits or gains arising or accruing to any person residing in the United Kingdom from any kind of property whatever, whether situate in the United Kingdom or elsewhere."

By s. 106 of the Income Tax Act, 1842 (5 & 6 Vict. c. 35), every person being a householder (except persons engaged in any trade, &c.) shall be charged to the duties in Sched. D by Commissioners acting for the parish or place where his dwelling-house shall be situate; "and every person not being a householder nor engaged in any trade," &c., "who shall have any place of ordinary residence,

shall be charged by the Commissioners acting for the parish or place where he shall ordinarily reside."

By s. 39 of the Income Tax Act, 1842, any subject of His Majesty whose ordinary residence is in Great Britain and who has gone beyond the seas for the purpose only of occasional residence is deemed to be a person chargeable as a person actually residing in Great Britain: "provided always that no person who shall .... actually be in Great Britain for some temporary purpose only, and not with any view or intent of establishing his residence therein, and who shall not actually have resided in Great Britain at one time or several times for a period equal in the whole to six months in any one year, shall be charged with the said duties mentioned in Schedule D as a person residing in Great Britain, in respect of the profits or gains received from or out of .... foreign securities ...."

By s. 52 of the Taxes Management Act, 1880 (43 & 44 Vict. c. 19), if the surveyor of taxes discovers that any properties or profits chargeable have been omitted from the first assessments, or that any person chargeable has not made a full and proper return, an additional first assessment may be made. By s. 23 of the Finance Act, 1907 (7 Edw. 7, c. 13), the time during which an additional first assessment may be made shall be at any time within the year of assessment or within three years after the expiration thereof.

In April, 1916, the Commissioners for the purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant, the Princess Edmond de Polignac, for the year ending April 5, 1913, in respect of profits from foreign possessions.

On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from making, allowing, confirming, enforcing, or otherwise proceeding upon the assessment upon the grounds that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom except for temporary purposes, nor with any view or intent of establishing her residence therein, for a period equal to six months in any one year.

The affidavit on which the rule nisi was obtained stated as follows: "I Winnaretta Eugenie Princesse Edmond de Polignac of 43 Avenue Henri Martin, Paris, widow make oath and say as follows:-

"1. I am the widow of Prince Edmond Melchior Jean Marie de Polignac deceased and am and have since my first marriage to Louis Marie Wilfrid Prince de Scey Montbehard my first husband in the year 1887 been a subject of the French Republic and resident in France and am not and have not been a subject of the United Kingdom nor a resident in the United Kingdom. I reside and have for many years past resided every year for the most part at my house 43 Avenue Henri Martin, Paris, and occasionally at my house Palazzo Polignac at Venice and pay visits to various other places on the Continent and in the United Kingdom from time to time, when I stay at hotels or at the houses of relatives or friends.

"2. I have on many occasions been in the United Kingdom for temporary purposes but I have never been there since my said first marriage in the year 1887 with a view or intention of establishing my residence therein nor have I ever resided in the United Kingdom at one time or several times for a period equal in the whole to six months in any one year.

"3. On April 26 or 27, 1916, I received the paper writing now produced and shown to me marked W. E. P. being a notice of assessment in respect of foreign possessions numbered 4296 for the year 1912-13 which was forwarded to me at my said house 43 Avenue Henri Martin, Paris, from 213 King's Road, Chelsea, which is a house belonging to my brother Mr. W. M. G. Singer.

"4. During the year ending April 5, 1913, I was in the United Kingdom for temporary purposes on visits for 68 days in all, namely from June 16 to August 21. The greater part of the time I was staying with my friend Lady Colebrooke at her house at Upper Ifold, Dunsfold, Surrey, but paid several visits of a few days' duration to other friends at country houses. I spent a few days in London for the Shakespeare Ball staying at my brother's house, 213 King's Road, Chelsea, and I also stayed there at other times during this period for not exceeding 4 days each and not exceeding 20 days there altogether and generally in company with other guests of my brother. I cannot after this lapse of time supply more exact particulars of the dates of my various visits during this period.

During the year ending April 5, 1914, I was in the United Kingdom for temporary purposes on visits for about 109 days in all, namely from May 8 to 24, partly at 213 King's Road aforesaid and partly at West End, Petersfield (I have no record or recollection of the number of days spent at each place); from June 21 to August 24 mostly at Upper Ifold, Dunsfold, Surrey, with short visits of 2 or 3 days each to 213 King's Road, The Cottage, Newmarket, Norman Court near Salisbury, Hill Hall, Epping, and Studley Royal, York; 10 days in December partly at the Hotel Ritz, London, partly at Norman Court aforesaid and partly at Armitage Hill, Ascot; 9 days in January at the Langham Hotel, London, 1 night at Paignton, Devon, and 1 day, the 27th, at 213 King's Road, Chelsea aforesaid, which was my last visit there. On none of these occasions was I in the United Kingdom with any view or intention of establishing my residence therein. Since the month of November 1914 I have not been in the United Kingdom.

"5. I am advised and believe that the General Commissioners for the purposes of the Income Tax for the Kensington division of the county of Middlesex, on whose behalf I am informed and believe that the said notice of assessment is sent, have no jurisdiction to make any assessment on me in respect of income from foreign possessions in respect of the year ending April 5, 1913, on the following grounds:-

"(a) I am not and have never been since the year 1887 a subject of His Majesty the King of Great Britain and Ireland nor resident within the United Kingdom.

"(b) An assessment in respect of the year of assessment ending April 5, 1913, cannot according to the Income Tax Acts he made after 3 years from the expiration of the said year of assessment, and the said assessment was not made before April 6, 1916.

"(c) The said General Commissioners for the purposes of the Income Tax Acts for the Kensington division of the county of Middlesex are not commissioners acting for any parish or place in which I ordinarily reside.

of France, on May 12, 1916,

"Before me," &c.,

"British Vice-Consul, Paris."

From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, it appeared that in February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in the name of Washington Merritt Grant Singer, the brother of the applicant. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. An account of the expenses incurred in connection with the purchase was sent to W. M. G. Singer by his solicitors and paid by the applicant. Accounts of the household expenses were at first rendered to the applicant and paid by her; afterwards as an extra precaution they were sent to W. M. G. Singer and paid by him, accounts being adjusted subsequently between him and the applicant.

A telephone agreement dated November 20, 1908, was signed by "Winnaretta de Polignac, address 213, King's Road." An extension agreement dated April 20, 1909, was signed by "W. de Polignac, address 213, King's Road."

A letter dated August 19, 1914, addressed to the telephone exchange in the handwriting of the applicant and signed "W. Singer" contained these words: "The telephone is at present, for my personal convenience, in the name of the 'Princess de polignac.'"

On July 25, 1912, the solicitors who were then acting for the applicant wrote a letter to Mr. W. M. G. Singer, "Re 213 King's Road, Chelsea, and 66, Glebe Place, Chelsea," saying that, the business having at length been finally completed both as to the original acquisition of the property and also as to subsequent alterations, they enclosed their cash accounts, and concluding thus: "You will understand that the business was taken by us as representing yourself, and we accordingly debit you with the account and deliver it to you, but you will of course know how to deal with the matter according to the private arrangements between yourself and your sister, and we enclose herewith a typed copy of this letter which you may find useful to forward to her."

In her affidavit in reply the applicant explained at length how the house was acquired so that it might be available as a place at which she could stay when occasionally in London in preference to staying at hotels. In paragraph 4 she stated: "I did not reside in the

United Kingdom and had not the least intention of residing in or becoming a resident in the United Kingdom in the ordinary meaning of the words 'residing' and 'resident,' but I understood that if I bought a house in London it was probable that the Commissioners of Inland Revenue might claim that though I was not resident in the United Kingdom in the ordinary sense of the word I must be taken to be resident there for the purposes of the Income Tax Acts, and might make a claim that I ought to be assessed to English income tax." The applicant went on to state that she discussed this difficulty with the owner of the house, and pointed out to him that she would not purchase it unless she could be assured that no claim would be made by the Commissioners; that the owner submitted the question to his brother, who was one of the Commissioners of Inland Revenue, and that the question and the answer thereto had been forwarded to the solicitor who was then acting for her. In paragraph 5 she stated that she had taken the opinion of counsel. This opinion was to the effect that if she was merely a guest in her brother's house she would not be residing in the United Kingdom within the meaning of the Income Tax Acts. In paragraph 6 she stated: "I declined to sign the contract or proceed with the business unless the transaction could be carried out in such a way as to leave no doubt that I should not be involved in any legal liability whatever for income tax on my income nor prevented from being entitled to obtain remission or return of such tax as above stated. I accordingly approached my brother, Mr. Washington Merritt Grant Singer, and took him to see the property and asked him if he would become the purchaser of it so that .... he might invite me to stay at the house for a short time only in each year. My brother at first demurred on the ground that he might become involved in complications by becoming the owner and occupier of two residences in London which might involve double liability to service on juries and matters of that sort, but after consulting with his own solicitors he ultimately agreed to become the absolute purchaser, but stipulated that the business should be carried out by his own solicitors on his behalf with no trouble or expense to him, and in my presence he ultimately gave instructions accordingly and authorised his solicitors to carry out the business for him but to act entirely according to my wishes and to take all

instructions in matters of detail from me on his behalf, and on or about October 12, 1908, all the necessary papers were handed over accordingly by my solicitor to" - the solicitors for Mr. W. M. G. Singer - "and they proceeded in due course to carry out and complete the business on behalf of my brother. I repeated to" - a member of the firm - "my instructions that the matter was to be carried out in such a way that I was not to become legally liable to payment of English income tax or be prevented from obtaining repayment or remission of tax on my foreign income as heretofore. After carefully considering the matter himself, the purport of his advice to my brother and myself on the matter was that my brother must be the actual and real purchaser and owner of the house and premises and also the proprietor of the establishment and the rated occupier and that there must be no sort of trust either written or verbal, express or secret, by my brother in my favour; that the permanent servants on the premises should be employed and paid by him so that they should be in his actual service, and that when I stayed at the house it should be as guest of my brother. Provided that these essential matters were observed and thoroughly understood and acted upon my solicitor informed me that there was no objection whatever to my providing my brother with the whole of the purchase-money and any expenses to which he might be put in maintaining the house in respect of insurance, rates, taxes, and outgoings and upkeep and servants' wages, but there must be no binding contract or agreement between us either in writing or verbal that I should provide these moneys or continue to do so, and that just as on the one hand my brother could at any time do what he liked with regard to the house or the disposal thereof or the conduct of the establishment and, as to its being available for me as his guest when I desired to reside there, there must only be an understanding which would be absolutely revocable by him at his will and pleasure, so on the other hand I should be equally free and at liberty to decline to provide the purchase-money or other moneys necessary for the purchase of and alterations to the house and the upkeep of the establishment, rates, taxes, outgoings, and servants' wages, if I should think fit to decline or discontinue to provide such moneys at any time. I acted in every particular in accordance with this advice and have in fact provided or refunded to my

brother the whole of the purchase-money and costs and expenses which he has paid or incurred for the purchase of the said premises 213, King's Road .... Chelsea, and the alterations and upkeep of the same; but I have never been and am not under any obligation to do so, and, as I did not in fact reside and had no intention of residing in the United Kingdom, I was perfectly satisfied and have always believed and still believe and am advised that I did not as the result of the purchase and acquisition of the said house by my brother, and by since occasionally residing therein as his guest for temporary purposes only and for short periods which together with my visits elsewhere in the United Kingdom have never amounted in the aggregate to as much as six months in one year, become subject to or liable to make any return or be assessed for income tax in the United Kingdom up to the present time ...."

Oct. 19, 20, 24, 1916. Sir George Cave, S.-G., and T. H. Parr,for the surveyor of taxes, and Bremner, for the Commissioners, showed cause. The writ of prohibition is not in all cases of excess of jurisdiction a writ to which an applicant is entitled as of right. Where the excess of jurisdiction is not apparent on the face of the proceedings the writ is discretionary, and the applicant may forfeit his right to the writ if he has been guilty of misconduct: Farquharson v. Morgan, per Lopes L.J. (1) The Court has an inherent power to see that its process is not abused: Metropolitan Bank v. Pooley, per Lord Blackburn. (2) The affidavit on which the rule nisi in the present case was obtained was so drawn as to mislead the Court, and, apart from the question whether if the true facts had been stated the Court would have granted a rule nisi, the rule having been obtained by means of a misleading affidavit ought to be discharged to prevent an abuse of the process. [Bullivant v. Attorney-General for Victoria (3) was also cited.]

Disturnal, K.C., and Edwardes Jones, in support of the rule. A foreigner domiciled abroad whose income is derived from foreign possessions and who is really and substantially resident abroad is under no obligation, legal or moral, to incur liability to the British

(1) [1894] 1 Q. B. 552, 559.

(2) (1885) 10 App. Cas. 210, 220.

(3) [1901] A. C. 196.

Exchequer. He is entitled to preserve his immunity. If he becomes resident in the United Kingdom he no doubt becomes liable; but he is not bound to become resident. Residence within the meaning of the Income Tax Acts is largely a matter of law; in so far as it is a question of fact the intention of the party charged is a very important element. All the facts in this case are now before the Court. The last thing the applicant intended was to become, and she has taken legal advice to avoid becoming, a resident within the meaning of these Acts. When, following the course indicated by her advisers, she states that the house is her brother's, that she has been his guest, and that she never was resident within the United Kingdom since 1887, she states what she is advised and what she believes is the truth. In these circumstances she is not to be charged with deceiving or misleading the Court. When the merits are considered it will be seen that the Kensington Commissioners were not the proper authority to make this additional assessment.

VISCOUNT READING C.J. The applicant, the Princess Edmond de Polignac, obtained from this Court a rule nisi for a prohibition to the General Commissioners for the purposes of the Income Tax Acts for the district of Kensington to prohibit them from further proceeding upon an assessment made upon her for the year ending April 5, 1913. The assessment was in respect of profits from foreign possessions and was made under the provisions of s. 2, Sched. D, of the Income Tax Act, 1853, and s. 106 of the Act of 1842. The answer of the Commissioners is that the applicant was residing in the United Kingdom and had received profits from foreign possessions during the year of assessment and therefore was liable to pay income tax on those profits. In support of her application to the Court to prohibit further proceedings on this assessment the applicant made an affidavit which requires careful consideration.

Before I proceed to deal with the facts I desire to say this: Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any

further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.

The assessment was made upon the applicant in respect of residence at a house 213, King's Road, Chelsea; it was based on her being the owner of the house and actually residing in the house. Her affidavit in support of the rule nisi states in substance that she had never since the year 1887 been in the United Kingdom with a view or intention of establishing her residence there; neither had she ever resided there for a period of six months in any one year. That statement is made to meet the effect of s. 39 of the Income Tax Act, 1842. The affidavit proceeds to state in paragraph 3 that the notice of assessment was forwarded to her in Paris "from 213, King's Road, Chelsea, which is a house belonging to my brother, Mr. W. M. G. Singer." In paragraph 4 she deals with the time during which she was in this country, and states that for part of the time she was staying "at my brother's house, 213, King's Road, Chelsea," and that she also stayed there at other times, "generally in company with other guests of my brother"; that is to say that this house, which was supposed by the Commissioners to be her residence, was not her house but her brother's, and that she only stayed there as a guest. If that was so she would be justified in saying that such a residence was not sufficient to render her liable to income tax. It was therefore a most material statement; in short, the assessment on which the Commissioners claim the right to charge her with income tax rests on the basis that she was residing in the United Kingdom within the meaning of these Acts. If she established that she was not resident there during the material time she made out a complete answer. That was what she sought to do by this affidavit.

She stated that she was never resident in person, but was only the guest of her brother. I have no hesitation in saying, having regard to her own affidavit filed in reply, that that statement is untrue: she was not the guest of her brother; the house was not her brother's; in the circumstances it is impossible to believe that she was the guest of her brother. The taxing authorities received information from one who knew the true facts concerning this house in Chelsea. The true facts ascertained from documents are that some years before the year ending on April 5, 1913, the applicant wished to have a house in London with a view of residing there instead of going to hotels or staying with friends, but that she became aware that if she took a house she would become liable to taxation, and to that she objected. It has been said that she was entitled to use all legitimate means to escape taxation; but misleading methods designed to conceal the truth are not legitimate means of escape. She took the opinion of counsel, who quite properly advised her that if she was merely a guest in her brother's house she would not be liable. Upon that advice was built up this arrangement with her brother by which he was to become the nominal purchaser and the rated occupier of the house, and her name was not to appear, but she was to pay to him, and did pay to him, all the moneys he paid for the furniture, servants, and general expenses of the house. He was merely her nominee. In fact nothing more could have been done to make the house her house short of an open acknowledgment of ownership and occupation. In these circumstances the Commissioners might well infer that at the critical time she was residing in the United Kingdom and, having received income from foreign possessions, was liable to pay income tax. These are the true facts of the case. Any doubt on the matter is dispelled by the circumstances of the telephone agreement, the letter of August 19, 1914, relating thereto, and the letter of July 25, 1912.

It is said that the applicant had no intention to deceive, first, because she stated the true facts in her second affidavit, and, secondly, because her conclusion from those facts, however mistaken, was one which she really drew. As to the first contention, I am not impressed by a full disclosure deferred until the deponent's initial statement has been shown to be untrue. A full disclosure is more

effective before than it is after the witness has been discredited. As to the second contention, with every desire to accept an innocent explanation, I cannot regard as satisfactory that which is offered in paragraph 6 of the affidavit in reply. It sets forth matters from which I conclude that the house was hers. I cannot regard the inquiries which were made of one of the Commissioners as notice to the department of the facts which we now know.

The result is that the Court was deceived by the affidavit filed in support of the application for the rule nisi, and I have come to the conclusion that this is one of those cases in which this Court ought without further discussion of the merits to refuse to make absolute a rule obtained in the way I have stated. The rule nisi must therefore be discharged.

RIDLEY J. I agree and have nothing to add.

LOW J. I entirely agree and only wish to add a few words upon one point. There may be cases where this Court is asked to prohibit the proceedings of inferior Courts and where the want of jurisdiction in the inferior Court is so apparent that this Court would be bound to interfere in whatever circumstances the rule nisi was obtained. If the want of jurisdiction was sufficiently apparent the Court would be compelled to act and could not withhold relief. But the present case does not fall within that class. Here the question of the jurisdiction of the Commissioners is one of doubt and difficulty and one which requires an honest and candid statement of the facts. The statements made in the affidavit on which the rule nisi was granted were very far from being honest and candid. That being so, it seems to me that this Court, having been exposed to an attempt to mislead and deceive it, has no alternative but to discharge the rule.

W. H. G.

The applicant appealed.

Dec. 7, 8, 1916. Hughes, K.C., Disturnal, K.C., and Edwardes Jones, for the appellant. It is submitted that the affidavit of the appellant on which the rule nisi was granted was a perfectly proper

one and that the Divisional Court were not in any way misled by it in granting the rule. [They repeated the arguments used in the Court below as to the sufficiency of the affidavit and as to the bona fide belief of the appellant in the truth of the statements therein contained.]

[LORD COZENS-HARDY M.R. referred to Drummond v. Collins. (1)]

It is submitted that the Divisional Court were wrong in discharging the rule without going into the merits. On an ex parte application for an order the applicant is bound to state all the material facts. He has to form an opinion as to what facts are material and is responsible for his statement of them. He will not, however, be deprived of his rights if he comes to a wrong conclusion as to what facts are material.

[SCRUTTON L.J. referred to Attorney-General v. Liverpool Corporation. (2)

WARRINGTON L.J. The Court will not allow a plaintiff to obtain any advantage from an ex parte injunction which he has improperly obtained.]

The proper course to be followed in such a case is that shown by Boyce v. Gill. (3) The Court is bound to grant a prohibition in a proper case even at the instance of a third party. There is a great distinction between a rule nisi for a prohibition and an ex parte injunction in the Chancery Division. The latter operates at once, but a rule nisi is nothing more than a summons to the respondent to attend on a certain day to show cause why the order sought should not be made. The respondents here might have moved to discharge the order. They did not do so, but proceeded to file evidence on the merits, and it is now too late for the Court when the whole of the facts are before it, to refuse to deal with the matter on the merits.

[SCRUTTON L.J. referred to The Hagen (4) and Republic of Peru v. Dreyfus Brothers & Co. (5)

LORD COZENS-HARDY M.R. referred to Dalglish v. Jarvie. (6)]

A civil Court has no jurisdiction to punish a person for misconduct

(1) [1915] A. C. 1011.

(2) (1835) 1 My. & Cr. 171, 210.

(3) (1891) 64 L. T. 824.

(4) [1908] P. 189, 201.

(5) 55 L. T. 802, 803.

(6) 2 Mac. & G. 231.

by depriving him of his civil rights. The effect of discharging the rule in the present case will be to deprive the appellant of the right to contest subsequently her liability to be assessed to income tax, as according to the practice of the Crown Office there can be no second application for a writ of prohibition except where there has been some obvious technical mistake committed.

Further, it appears on the face of the assessment itself that the Kensington Commissioners had no power to make this assessment. In a case of prohibition, when once the excess of jurisdiction is pointed out the Court has no option but to grant a writ of prohibition. The assessment is made in 1916 in respect of the financial year 1912-13, and is made by virtue of s. 5 of the Finance Act, 1912 (2 & 3 Geo. 5, c. 8) (1), and accordingly the only persons competent to make the assessment were the Commissioners for the City of London: Kensington Income Tax Commissioners v. Aramayo. (2) The assessment by the Kensington Commissioners in 1916 is therefore beyond their jurisdiction unless they were empowered to make it by virtue of s. 32 of the Finance (No. 2) Act, 1915 (5 & 6 Geo. 5, c. 89). (3) That section repealed s. 108 of the Income Tax Act,

(1) Finance Act, 1912, s. 5: "(1.) Income tax for the year beginning the sixth day of April nineteen hundred and twelve shall be charged at the rate of one shilling and twopence, and the same super-tax shall be charged, levied, and paid for that year as was charged for the year beginning on the sixth day of April nineteen hundred and eleven.

"(2.) All such enactments relating to income tax (including super-tax) as were in force with respect to duties of income tax granted for the year beginning on the sixth day of April nineteen hundred and eleven shall have full force and effect with respect to any duties of income tax hereby granted."

(2) [1916] 1 A. C. 215.

(3) Finance (No. 2) Act, 1915, s. 32: "(1.) Notwithstanding anything in section one hundred and six and one hundred and forty-six of the Income Tax Act, 1842, or in any other enactment relating to income tax, a person may be charged to income tax under Schedule D. or E., whether or not he is engaged in any trade, manufacture, adventure, or concern, or any employment, vocation, or office, by commissioners acting for any parish or place in which that person ordinarily resides; and if any person has been so charged before the commencement of this Act, the charge shall not be deemed invalid by reason of that person not having been charged by the right commissioners:

"Provided that nothing in this section shall affect the operation of section one hundred and seventy-one of the Income Tax

1842, which made provision as to the place at which persons were to be assessed to income tax in respect of profits or gains arising from foreign and colonial possessions or securities. Sect. 32 only enables the Kensington Commissioners to assess income tax in respect of the current year and does not apply to previous years: see s. 37. It did not enable them in 1916 to assess to income tax on foreign securities a person who was not then ordinarily residing in Kensington in respect of the financial year 1912-13. Here the appellant left this country in November, 1914, and has not resided in the house in question since.

It is not necessary to send the matter back to the Divisional Court, but the Court of Appeal can deal with it themselves. [They also referred to Turnbull v. Foster (1), Farquharson v. Morgan (2), Rex v. Southampton Income Tax Commissioners (3), and Taxes Management Act, 1880, s. 52.]

Sir George Cave, S.-G., and T. H. Parr, for the surveyor of taxes.

[LORD COZENS-HARDY M.R. We wish to hear you on one point. It is said that there is a defect of jurisdiction appearing on the face of the record.]

Sect. 108 of the Act of 1842 is now repealed, and the effect is that s. 106 and the Act of 1880 now remain. The assessment on the appellant was made after s. 32 of the Act of 1915 came into operation. The first limb of s. 106 therefore applied. "Additional first assessment" in s. 52 of the Act of 1880 must mean additional first assessment of the property and not the person. It is the additional first assessment list for Kensington, and no one can remedy the omission except the Kensington Commissioners.

[They were stopped.]

Bremner, for the Commissioners.

Act, 1842, with respect to double assessments.

"(2.) Section one hundred and eight of the Income Tax Act, 1842 (which makes provision as to the place at which persons are to be assessed to income tax in respect of profits or gains arising from foreign and colonial possessions or securities) is hereby repealed."

Sect. 37: "Any amendments made by this Part of this Act with respect to income tax shall have effect as respects the tax for the current income tax year except where the context otherwise requires."

(1) (1904) 6 Tax Cas. 206.

(2) [1894] 1 Q. B. 552.

(3) Ante, p. 259.

Edwardes Jones in reply. The Solicitor-General has not met the point. It is said that s. 106 operates, but the additional Commissioners had no powers under that section, otherwise Kensington Income Tax Commissioners v. Aramayo (1) would have been decided the other way.

LORD COZENS-HARDY M.R. This is an appeal against a refusal of the Divisional Court to grant a writ of prohibition. It is a curious case, and in some respects an important one. It raises one very important point of principle upon which I think it is desirable that I should express emphatically my agreement with the Divisional Court. A rule nisi was applied for and obtained for a prohibition. It was supported by and founded on an affidavit. That affidavit contained statements which I quite agree with the Lord Chief Justice were inaccurate to the knowledge of the lady, the deponent, and I think almost manifestly intended to conceal from the Court certain facts which were not only relevant, but I will go further and say essential, to the decision of the matter which came before them. Now the lady says in that affidavit that she was a French subject; that she had had two husbands; that they were both Frenchmen; that she was a widow; that her ordinary residence was in Paris; and that she sometimes resided in Venice, where she had a house. Then she says "I have on many occasions been in the United Kingdom for temporary purposes, but I have never been there since my first marriage in the year 1887 with the view or intention of establishing my residence therein, nor have I ever resided in the United Kingdom at one time or several times for a period equalling, in the whole, six months in any one year."

Those are words taken from s. 39 of the Income Tax Act, 1842, Then she says that she was in the United Kingdom for temporary purposes during the year ending April 5, 1913, and during the year ending April 5, 1914, when she stayed at various private houses with friends, and also at certain hotels, and that "On none of those occasions was I in the United Kingdom with any view or intention of establishing my residence therein. Since the month of November, 1914, I have not been in the United Kingdom." Now what were the facts? The facts admitted by her in an affidavit in reply,

(1) [1916] 1 A. C. 215.

as proved to demonstration by the actual documents in this case, are these: The lady saw a house which she was much pleased with, a house No. 213, King's Road, Chelsea, which belonged to a friend of hers. She liked the house. There was a good deal of correspondence between the vendor and herself. There was an opinion taken by her from counsel, who gave her what I think was exceedingly good advice. She was afraid that she might expose herself to the liability to income tax on all or part of her property if she resided in this country. First of all it was proposed that the house should be bought by her brother with her money. Counsel said that would not do. Then some hint was given and it was suggested that if she stayed as a guest in a house in England she would not be residing in that house within the meaning of the Act. Ultimately - not, I think, under the advice of counsel at all - an arrangement was made, which she does not admit in her evidence, but which I cannot bring myself for one moment to doubt was proved to demonstration, under which the lease of the house was to be purchased by her brother nominally, I think, for 3000l., and her own furniture, for which, I think, she paid 1000l., was to be put into the house; and then this happens: For a number of years she lives or resides there - I want to find a neutral word for the moment. She was there occasionally. But this is proved to demonstration: the purchase-money, 3000l., was found by her and paid to her brother; all the household expenditure, the weekly bills, rates, taxes, and everything of that kind, were paid by whom? By the lady, and not by her brother. When the time came and the house was let for a period the benefit of the rents which the tenant paid did not go into the brother's pocket, but went into the sister's pocket. I say that because we have had the solicitor's account against the brother here, and it is quite apparent that, with an exception which is perfectly trifling and unimportant, every penny of the purchase-money, the expenses, the outgoings, from the date of the purchase to the end of the account, has been borne by the lady. Then the lady said in her affidavit in reply that the arrangement she made with her brother was that she should be there as a guest in his house; that is, she was to be a guest in a house which had been paid for by herself, which was kept up by her, and in which her furniture, which I suppose was valuable furniture, had

been placed. To say that in those circumstances the arrangement was that she should be there as a guest of her brother is something which is beyond my credulity. It is a new use of the term "paying guest," of which we sometimes hear, so to apply it. Was that a material matter to be brought before the Court? It is not necessary for me to decide, and I do not propose to decide, whether the evidence sufficed to prove that she was a resident there or not, but it was a matter which was material for the consideration of the Court, whatever view the Court might have taken. It is a case in which it seems to me there was plainly a suppression of what was material, and we cannot be too strict in regard to that which to the best of my belief has been a long established rule of the Court in applications of this nature and has been recognized as the rule. The authorities in the books are so strong and so numerous that I only propose to mention one which has been referred to here, a case of high authority, Dalglish v. Jarvie (1), which was decided by Lord Langdale and Rolfe B. The head-note, which I think states the rule quite accurately, is this: "It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward." Then there is an observation in the course of the argument by Lord Langdale: "It is quite clear that every fact must be stated, or, even if there is evidence enough to sustain the injunction, it will be dissolved." That is to say he would not decide upon the merits, but said that if an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted, but that he must come again on a fresh application. Then there is a passage in Lord Langdale's judgment (2) which is referred to in the head-note. It is this: "There is, therefore, a question of law, whether having regard to the facts thus appearing, the plaintiffs are entitled to the protection they ask; and there is also a question of practice, whether the facts stated in the answer being material to the determination of the question, and being within the knowledge of the plaintiffs by whom the case was brought

(1) 2 Mac. & G. 231, 238.

(2) 2 Mac. & G. 241, 243.

forward, and who obtained an ex parte injunction upon their own statement, whether the omission of the statement of these facts in the bill does not constitute a reason why the ex parte injunction so obtained should be dissolved." They held that the injunction ought not to be granted although there might be materials apart from this question upon which the injunction might have been granted. Rolfe B. says this: "I have nothing to add to what Lord Langdale has said upon the general merits of the case; but upon one point it seems to me proper to add thus much, namely, that the application for a special injunction is very much governed by the same principles which govern insurances, matters which are said to require the utmost degree of good faith, 'uberrima fides.' In cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material it is a fraud; but, besides that, if he conceals anything that may influence the rate of premium which the underwriter may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy. So here, if the party applying for a special injunction, abstains from stating facts which the Court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the Court to grant. I think, therefore, that the injunction must fall to the ground." That is merely one and perhaps rather a weighty authority in favour of the general proposition which I think has been established, that on an ex parte application uberrima fides is required, and unless that can be established, if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say "We will not listen to your application because of what you have done."

Then it is said that that rule may be true in cases of injunctions where there is an immediate order granted, which order can be discharged, but that it has no reference at all to a case like a rule nisi for a writ of prohibition, which is nothing more than a notice to the other side that they may attend and explain the matters to the Court. To so hold would, I think, be to narrow the general rule, which is certainly not limited to cases where an injunction has been

granted. It has been applied by this Court, and certainly by the Courts below, to an application for leave to serve a writ out of the jurisdiction. If you make a statement which is false or conceal something which is relevant from the Court, the Court will discharge the order and say "You can come again if you like, but we will discharge this order, and we will apply the general rule of the Court to applications like this." There are many cases in which the same principle would apply. Then it is said "That is so unfair; you are depriving us of our right to a prohibition on the ground of concealment or misstatement in the affidavit." The answer is that the prerogative writ is not a matter of course. The applicant must come in the manner prescribed and must be perfectly frank and open with the Court.

It follows from what I have said, unless there is something in another point to which I will refer, that the Lord Chief Justice was justified in saying that the application must be refused, not on the grounds of the merits of the case, but on the ground that the rule nisi was obtained by concealment of facts which ought not to have been concealed and by statements which were not in accordance with the facts.

Then it is said that it would be very hard upon the applicant to dismiss the application because, according to the settled practice, or what is believed to be the settled practice, of the Crown Office, there cannot be a second application for a writ of prohibition except in the case of a purely formal defect, such as a mistake in the jurat of the affidavit or something of that kind, and that in such a case only would the Court treat the first application as no obstacle in the way of the second. All I can say is that if that is the rule of the Crown Office it is a rule which is perfectly well settled, and anybody who goes to the Crown Office must take the consequences of that rule. We cannot, and we ought not, to refuse to give effect to what seems to me to be a most salutary rule of practice merely because it may prevent this lady from ever getting what she seeks; it may or may not. I do not say whether it will or will not.

Then it is said - and this was an ingenious argument - there is on the record itself sufficient to show that there was no jurisdiction here, and that that being so, the objection to jurisdiction being patent and not latent and not dependent upon evidence, the Court

ought to grant the prohibition. Now that is a very subtle argument. It amounts to this: the papers which were before the Court and which are part of the record contained the assessment, what is called the additional first assessment, for the parish of Kensington. It is made by additional Commissioners of Income Tax for Kensington, in which parish it is admitted that this house was to be found, and it says "We, the undersigned additional Commissioners, acting in the district of Kensington, do hereby certify the foregoing additional first assessments of duties payable under statute"; and then when we look at the body of the document we see that it is an additional first assessment for duty under Sched. D for the year, amongst others, 1912-13. It is said that in 1912-13 the Kensington Commissioners had no jurisdiction at all to make this assessment. That is quite true; they had not. It is said the only persons who could then have assessed the lady for profits from foreign possessions were the Commissioners for the City of London, and therefore it is obvious that was a case in which it appears upon the record that the person who could not have made the original first assessment cannot be in a better position to make the second assessment. That seems to me to be a complete fallacy. We are not now in 1912-13, we are in 1916, and in December of last year an Act came into operation, the Finance (No. 2) Act, 1915, which did several things. It did them possibly in rather a clumsy way, but it did them. By s. 32, sub-s. 2, it repealed s. 108 of the Income Tax Act, 1842, under which this assessment could only have been made by the City of London Commissioners. That is the interpretation put upon the section by the decision of the House of Lords in Kensington Income Tax Commissioners v. Aramayo. (1) Not only did it repeal that s. 108, but the effect was that it left the case of profits from foreign possessions falling under s. 106 of the Income Tax Act, 1842, s. 108 being an exception from s. 106, so that when s. 108 was repealed the case went back under s. 106. That is effected by s. 32, sub-s. 1, of the Finance (No. 2) Act, 1915, which provides: [His Lordship read the sub-section and continued:]

In a case recently before this Court of Rex v. Southampton Income Tax Commissioners, Ex parte W. M. Singer (2), in which a brother of this lady was concerned, we decided that the retrospective action

(1) [1916] 1 A. C. 215.

(2) Ante, p. 259.

of s. 32 did not apply, because the applicant had not been "charged" before the commencement of the Act - that on those words that part of the section meant charged so as to create a Crown debt - that is effectively charged. But we certainly did not decide, and, speaking for myself, I did not intend to decide, that the only effect of that section was to deal with the additional Commissioners. We only did not apply it to what I call the first preliminary step. There is nothing in s. 32 to justify the contention that s. 37 of the Act taken with s. 32 shows that there was no jurisdiction. Sect. 37 of the Act of 1915 has been read in a most extraordinary way. It is as follows: "Any amendments made by this Part of this Act with respect to income tax" - that applies to s. 32 - "shall have effect as respects the tax for the current income tax year except where the context otherwise requires." It seems to me there is no ground whatever for saying that s. 32 is only applicable to income tax for the current year. No such limitation is to be found in the language of that section. There might have been a doubt as to whether it was applicable to the current year or not, but that was made quite clear by s. 37.

For these reasons I think that the view taken by the Divisional Court was perfectly right. The Court, for its own protection, is entitled to say "We refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."

For these reasons I think the appeal fails and must be dismissed with costs.

WARRINGTON L.J. This is an appeal from an order of the Divisional Court dated October 24, 1916, by which it was ordered that the order dated May 16 last that "the General Commissioners for the purposes of the Income Tax Acts acting for the district of Kensington in the county of Middlesex should show cause why a writ of prohibition should not be awarded to prohibit them from making, allowing, confirming, enforcing, or otherwise proceeding upon a certain assessment be now discharged and that costs be paid by the applicant." The question we have to determine is whether the Court was justified in discharging that order, not because on the merits the Court came to the conclusion that the case was not

one in which a writ of prohibition ought to issue, but because the order itself was improperly obtained.

Now the rule nisi or the order which was discharged is an essential preliminary to the issue of the writ of prohibition. If there is a defect in that essential preliminary step such as that it ought to be treated as if it had not been taken, then the writ of prohibition cannot be granted, because the essential preliminary to its issue does not exist. In the present case is there such a defect in this order as that the Court ought to order it to be discharged - that is to say, to be as if it had not been made? It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in the absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. That is perfectly plain and requires no authority to justify it. Did the applicant in the present case make that full disclosure? The question arises in this way: The applicant makes the present application in her own pecuniary interest with a view of preventing herself being charged with income tax in respect of her income, and particularly in the present application income received from foreign possessions. The point upon which her liability turns is whether she is resident in the United Kingdom. In support of her application she filed an affidavit in which she stated quite truly that she was a French subject domiciled in France. She then stated that she was not and never had been a resident in the United Kingdom. She stated that she resided and had for many years past resided in Paris, and occasionally at Venice. And then she stated that she had paid visits to various other places on the Continent and in the United Kingdom from time to time, when she stayed at hotels or at the houses of relatives or friends. I will pass over the third paragraph of the affidavit, which deals with rather different matters. She then proceeds in the fourth paragraph to condescend on details, of her visits to England during the income tax year 1912-13 and she states that during the year in question she was

in the United Kingdom for temporary purposes on visits for sixty-eight days in all, which she mentions. She paid several visits, and the greater part of the time she spent with her friend Lady Colebrooke, and she paid other visits of a few days' duration to other friends at their country houses. Then comes this: "I spent a few days in London .... staying at my brother's house, 213, King's Road, Chelsea, and I also stayed at other times during this period for not exceeding four days each and not exceeding twenty days altogether, and generally in company with other guests of my brother." The point of that is that she puts her stay at No. 213, King's Road, Chelsea, on the same footing as what she has described in other passages as. "visits to relatives and friends," and in particular to such a friend as Lady Colebrooke. Then she deals with the next year, and she refers to her stay in the United Kingdom as visits to, amongst other places, this house No. 213, King's Road, and she says "On none of these occasions was I in the United Kingdom with any view or intention of establishing my residence there." Then finally she says "I am not and never have been since 1887 resident within the United Kingdom." Now was that a fair disclosure of the actual facts, or rather of the material facts? It is untrue, as is shown partly by the evidence that the Crown have succeeded in obtaining and partly by the disclosure that she was compelled to make by the filing of the Crown's affidavits. The true fact is this, putting it as shortly as may be: In 1908 she saw a furnished house which she thought would be a very good house for her to have in London as a pied ˆ terre instead of going to friends' houses or to hotels during such time as she wished to be in London. She took a fancy to the house and was desirous of buying it, and the vendor was desirous of selling it, but she was warned that she might incur liability to English income tax if she had a house in England. She therefore thought that she would - I will not use the word "evade," though it is a very good word - but thought she would prevent herself from becoming liable to income tax if she adopted the plan of allowing the house to be bought in her brother's name, treating herself when there as her brother's guest. What was actually done? The house was bought in her brother's name; she paid the whole of the purchase-money; she paid all the rates payable in respect of the house, the ground rest and the insurance;

and what seems to me much more important than that, she paid for the upkeep of the house, the wages of the servants, the provisions necessary for their maintenance, and, when she was living in the house, the provisions necessary for the maintenance of herself and any other guests who might be staying there, and whenever any alterations were to be made in the house it was she and not her brother who was regarded as the person whose voice was to prevail as to whether alterations were to be made or not and what they were to be, and the whole of the furniture in the house belonged to herself. The house for some time has been let furnished, and we find that the rent paid by the tenant is credited in the solicitors' account exactly in the same way as her own payments were credited during the time when the house was occupied in the way that I have just stated. It cannot, I think, possibly be said that, the question which the Court would have to determine on the merits of the case being whether or not this lady could be treated in respect of this house as being resident in England, it was not material that the Court should be informed of the facts which I have mentioned when the rule nisi was applied for. It seems to me that by making the application as she did and by suppressing the facts which were really material the lady has brought herself within the rule to which I have already referred, and that the order under which alone the income tax officials could be brought to answer the case which she has made ought to have been discharged, and that the Court was quite right in discharging it. If that order is discharged there are no proceedings before the Court, and there is nothing for the Commissioners to answer.

Then it is said that there is a distinction in matters of prohibition between a case in which the defect of jurisdiction appears on the face of the proceedings and a case in which the defect is raised by the evidence of the party applying for the prohibition. As it is put in one of the cases, there is a distinction between a case of a patent defect and a case of a latent defect, and it is said that in the one case the Court is bound to grant the writ of prohibition whatever may have been the conduct of the person putting the Crown in motion to obtain it, but that in the other case the matter is in the discretion of the Court, and it will grant or withhold the writ according to its view of the merits of the parties. It is contended

further that this is one of the first class of cases, that this is a case in which it was patent on the face of the proceedings that there was a defect of jurisdiction. Now the only document, independent of evidence, on which it can be said that the defect appeared was the additional assessment itself dated March 30, 1916. What appeared by that was that the Commissioners for Kensington had on March 30, 1916, made an additional assessment in respect of profits from foreign possessions for the year 1912-13. That is all that is patent upon the proceedings. What is further not patent upon the face of the proceedings but a matter of law is that in the tax year 1912-13 the Commissioners for Kensington could not have made an assessment in respect of profits from foreign possessions, and it is said that that shows a defect of jurisdiction. In my judgment that is founded on an entire misapprehension of the meaning of s. 52 of the Taxes Management Act, 1880, under which these additional assessments are made. The argument, putting it shortly, is that the additional assessment can only be made by the Commissioners who have made the original assessment, and that they can only include in the additional assessment persons who are omitted from or who were liable to be inserted in the original assessment. There is no foundation whatsoever for that limitation of s. 52 of the Act of 1880. The Act of 1880 enables the additional Commissioners to make an additional assessment if the surveyor discovers that "any properties or profits chargeable to the duties" - that is, to income tax duties - have been omitted from the first assessment, or that "any person so chargeable" - that is, chargeable to the duties - has not made a full and proper or any return and has not been charged to the said duties. The additional Commissioners in the present case, as appears on the face of the assessment, purport to have discovered that the present applicant, a person chargeable to duties, has not been so charged, and they accordingly make an additional assessment, and they make that assessment at a time when by virtue of the Finance (No. 2) Act, 1915, they were the proper Commissioners to make it. The defect, if there is a defect, arises not on the face of the proceedings but from proof which the applicant says she could have adduced that she was not a person ordinarily resident in the district, and for that reason a person not liable to be assessed by these Commissioners. But that

is not a defect apparent on the face of the proceedings, and in my opinion, therefore, that contention also fails.

On the whole I think that the only proper order which the King's Bench could properly make was an order discharging the order improperly obtained. They have made that order, and I think that the appeal ought to be dismissed.

SCRUTTON L.J. I am of the same opinion, and as in my view the principle on which the Divisional Court decided this case which we are affirming is one of vital importance to the practice of the Court, I desire to state the reasons for my judgment in my own words. The Princesse de Polignac, an American lady who had married a French subject, was on March 30, 1916, assessed by the additional Commissioners for the parish of Kensington in respect of the annual profits or gains accruing to a person residing in the United Kingdom, the particular nature of the property being income derived from foreign possessions. She thereupon applied to the Divisional Court - the Court of King's Bench - for a writ of prohibition addressed to the Commissioners prohibiting them from proceeding on the assessment on the grounds which are expressed in the order which was granted on the rule nisi on the original application - first, that she was not resident in the United Kingdom within Sched. D; secondly, that the assessment had been made more than three years after the end of the assessment; and, thirdly, as the objection was originally stated, - a double-barrelled objection - that the Commissioners could not assess her because she was not ordinarily resident at the time they assessed her in their parish or district, and that there was no jurisdiction in them because in the year of assessment, 1912-13, they could not have assessed her. I am a little startled to find the grounds in the order giving a day drawn up in a different way from those in the affidavit. It appears in this case - I do not know whether it is so in other cases - that the Crown Office has practically allowed the counsel for the applicant to draw up the order; and in this case undoubtedly, both on head 1 and on head 3, the ground has been drawn up in quite a different way from that which is stated in the affidavit before the Court. That seems to me to be a very undesirable practice, and one which should not be followed in future. Now that

rule giving a day to the Commissioners to show cause was obtained upon an ex parte application; and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement. This rule applies in various classes of procedure. One of the commonest cases is an ex parte injunction obtained either in the Chancery or the King's Bench Division. I find in 1849 Wigram V.-C. in the case of Castelli v. Cook (1) stating the rule in this way: "A plaintiff applying ex parte comes (as it has been expressed) under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go." The same thing is said in the case to which the Master of the Rolls has referred of Dalglish v. Jarvie. (2) A similar point arises in applications made ex parte to serve writs out of the jurisdiction, and I find in the case of Republic of Peru v. Dreyfus Brothers & Co. (3) Kay J. stating the law in this way: "I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made." A similar statement in a similar class of case is made by Farwell L.J. in the case of

(1) (1849) 7 Hare, 89, 94.

(2) 2 Mac. & G. 231.

(3) 55 L. T. 802, 803.

The Hagen (1): "Inasmuch as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and a failure to make such full and fair disclosure would justify the Court in discharging the order, even although the party might afterwards be in a position to make another application."

Now what happened in this case? The lady swore an affidavit which I have not the slightest doubt was settled by her legal advisers. She swore that she was not a resident in the United Kingdom; she swore that she occasionally stayed at 213, King's Road, Chelsea, "which is a house belonging to my brother, Mr. W. M. G. Singer"; she swore with regard to staying at her brother's house, "I also stayed there at other times during this period, generally in company with other guests of my brother," and there she stopped. We now know the facts. We know them partly because a discharged clerk from the office of her solicitors, conceiving himself aggrieved, thought the right way to redress his grievance was to go straight to the Income Tax Commissioners with a number of copies of letters which he had seen in the course of his employ; and, secondly, we know the facts because, when the Income Tax Commissioners put forward the information that they had obtained from this discharged clerk, the Princess and her legal advisers then overflowed with candour to the Court, and told them a large number of things which they might very well have told them in the first instance. We know now - and I take the lady's words in order not to misrepresent her - that the lady was thinking of buying a house in London: "Another important point is that I at present do not pay income tax on my estate in England, being domiciled in France, but I should lose this advantage by buying a house in London. I feel sure, however, that the property could be paid for in somebody else's name or in some manner which would get over this difficulty." The lady is one of that class of rich foreigners who desire to enjoy the advantage of occasional residence in Britain, but do not desire the disadvantage of contributing to British burdens, and, as appears from that letter, she was anxious to have a house in London where she could stay when she came to London, but was particularly anxious

(1) [1908] P. 189, 201.

that the house in London should not be a residence within the meaning of the Income Tax Acts. She consulted counsel; he was asked whether it would do if her brother bought the house with her money and made a declaration of trust for her. He was asked whether it would do if the brother bought the house with her money and then mortgaged it to her for the full amount of the purchase-money, with a back letter from her that the money should never be called in. Counsel was unsympathetic, and replied that he did not think either of those ingenious devices would be of any use; and so at last an arrangement was made by which the brother bought the house, the lady providing the purchase-money; the lady provided the furniture, the lady provided every expense in connection with the house, and came and stayed there whenever she wished, and it was hoped that some Court might be found sufficiently credulous to believe that the lady was really the guest of her brother and had no interest in the house, and was not residing in something which was practically her own residence. The best comment, I think, on that is the letter of the lady's solicitors - solicitors who were acting for her brother, and who sometimes acted for the lady - who wrote to the brother: "We send you the account. You will of course know how to deal with the matter according to the private arrangement between yourself and your sister, and we enclose herewith a typed copy of this letter which you may find useful to forward to her." It is not necessary, in my view, for this Court to decide whether the lady resided or not. What is material for the Court to consider is this: were these facts which the applicant did not tell the Court material to be considered on the question whether there was or was not residence? I think it is obvious that any tribunal settling whether this lady resided ought to know these facts. Again, if there was any evidence on which the Commissioners could find residence, the remedy would not be prohibition, but appeal, and before issuing a writ of prohibition the Court should know whether there was any evidence on which the Commissioners could have found residence, though other tribunals might think differently, in order that the Court might know whether the writ of prohibition was the proper remedy, or they should say "We must leave you to your remedy by appeal and case stated if necessary." It seems to me, therefore, without

deciding the question of what would have happened if we had been dealing with the case on the merits, that facts were withheld, and I think, so far as the solicitors were concerned, deliberately withheld, from this Court which would have been material in considering whether the Court should or should not issue a writ of prohibition.

When we have got to this stage, what is to happen? An applicant has obtained from this Court relief in the sense that some one has been called upon to answer her application, and she has obtained it by an ex parte affidavit which suppresses material facts. I take the result from the one sentence that the Master of the Rolls read in the case of Dalglish v. Jarvie (1), a sentence in the judgment of Rolfe B.: "If the party applying for a special injunction abstains from stating facts which the Court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the Court to grant." The Court will not on that call upon the Commissioners to answer; it refuses the applicant her day because she has got her day, on which the Commissioners were to answer, by misrepresentation. We do not decide on the merits; the Divisional Court did not decide on the merits on this ground, and I think they were quite right in the decision that they came to.

But it is said that in writs of prohibition, whatever may be the case in other matters, the Court has no option but to grant a writ of prohibition once the excess of jurisdiction is shown. Now the case of Farquharson v. Morgan (2) shows that, at any rate where the excess of jurisdiction is not patent on the face of the record, the Court itself may have jurisdiction to deal with the matter. The Court distinguished cases where excess of jurisdiction is patent on the face of the record on the ground that there there was a public excess of jurisdiction which might grow into a precedent if not checked, and for that reason they distinguished the cases of patent excess from cases which can only be found by going into the evidence. They had not before them the case where the day to argue the writ of prohibition had been obtained by concealment of material facts; and I am not at all sure that if they had had such

(1) 2 Mac. & G. 231, 244.

(2) [1894] 1 Q. B. 552.

a case before them they would have said that the Court had no remedy, but was bound to grant a writ of prohibition, though the day had been obtained by suppressing material facts. But in my view this case comes nowhere near a case where excess of jurisdiction is obvious on the face of the record. The record states that the lady is resident in Chelsea in the district of Kensington; whether she is or is not really does not appear on the face of the record, and must be ascertained by evidence; and so far, therefore, as the objections taken to the assessment depend on residence, there is no excess of jurisdiction appearing on the face of the record.

But it is said - and I hope I state the contention accurately, though I have had the greatest difficulty in understanding it - that there is a certain excess of jurisdiction appearing on the face of the record. It is said that the record shows that the Commissioners for Kensington in 1916 have assessed in respect of foreign possessions a lady in respect of the year 1912-13. It is said that the Court must know that by the statute in 1912 the Commissioners for Kensington could not have assessed that lady in respect of foreign possessions; and it is further said that the Court must know from the statutes, if I follow it, that nobody could assess that lady as an additional assessment in 1916 unless they could also have assessed her in 1912-13. I am not at all sure that I state it correctly. That contention appears to me to make nonsense of the amending section of the Finance (No. 2) Act, 1915. I do not know that it necessarily follows that because a section of an Income Tax Act appears to make nonsense it is not what was actually passed by the Legislature; but one would prefer, if possible, to construe the section so that it should not make nonsense. Sect. 32 of the Finance (No. 2) Act, 1915, repeals s. 108 of the Income Tax Act, 1842, which made foreign possessions assessable by the Commissioners for London, and provides that a person may be charged to income tax under Sched. D, which includes foreign possessions, by Commissioners acting for any parish or place in which that person ordinarily resides. Now, if I understand the applicant's view of the result of the section, it is that nobody could have assessed this lady for income tax even if she were liable to additional assessment; that the London Commissioners could

not do it because s. 108 was repealed, and that the Kensington Commissioners could not do it because they could not have assessed in 1912. It seems to me that no such absurd result follows from the section that the Commissioners for Kensington, if the lady ordinarily resided there in 1912, cannot make an additional assessment in 1916 for 1912, or that they cannot do so unless she ordinarily resides there in 1916. Therefore on this ground there is no defect appearing on the face of the record, and the Court is left, even if Farquharson v. Morgan (1) applies to the case of a writ obtained by misrepresentation, with the full jurisdiction it would have in the case of a writ of prohibition for excess not appearing on the face of the record; and the Divisional Court were quite right, therefore, in taking the action they did. I express no final opinion, but it may be that the result of this is that the applicant has no further remedy. In the case of Reg. v. Bodmin Corporation (2) Day J. said: "As I read the authorities, it has always been held, whenever this objection has been taken, and the attention of the Courts has been called to the point, that no second application for a prerogative writ will be granted when the first application has been discharged. There are many authorities which support this contention; but I think, apart from authority, that it is a most convenient view to take of the jurisdiction of the Court in such matters. It is a view which has commended itself to many judges who have acted upon it, and it commends itself to me. It is no doubt extremely convenient that no second application for a high prerogative writ should be allowed after a first application has been refused. Such a writ is an extraordinary remedy, and persons seeking it may very reasonably be required not to apply for it unless they have sufficient cause for doing so. They must come prepared with full and sufficient materials to support their application, and if those materials are incomplete, I think it is quite right that they should not be allowed to come again."

It may be that the result of our decision is that the applicant loses her remedy. If so, she has only herself and her legal advisers to thank for it.

For these reasons, stated in my own words, in view of the importance of the matter we are dealing with, I concur in the judgment

(1) [1894] 1 Q. B. 552.

(2) [1892] 2 Q. B. 21, 23.

of the rest of this Court, that the judgment of the Divisional Court was right, and that this appeal should be dismissed with costs.

Solicitors: Church, Rendell, Bird & Co.; Solicitor of Inland Revenue.

W. I. C.