• In the case of Edwards (Inspector of Taxes) v Bairstow [1956] ac 14, judicial review can be relevant for material error of fact where it relates to an inference from facts which are deemed as primary where no reasonable person could conclude to.

Facts of the Case

  • D bought and sold a spinning plant at a profit to which the tax inspector claimed that this was deemed as a tax concern and that D should subsequently be obliged to pay tax on this.
  • The tax commissioners concluded that D did not engage in trade and therefore no tax could be liable, a decision which was affirmed in both the High Court as well as the Court of Appeal


  • Was D involved in trade and therefore liable for tax?

Held by the House of Lords

  • The House of Lords allowed the appeal and set aside the tax commissioners’ decision since such a decision could not be justified based on the facts of the case.

Viscount Simonds:

  • Viscount Simonds found that the inference that the circumstance was not deemed as trade could be set aside because the tax commissioners did not contextualise their decision by reference to the facts.
  • The finding that the transaction was not an adventure in the nature of trade is an inference of fact but can be set aside because it appears that the commissioners have acted without any evidence or on a view of the facts which could not reasonably be entertained. In making that inference they are to be assumed to have been rightly directed in law as to the characteristics which distinguish such an adventure, and, so far as the Scottish courts have diverged from this approach to such problems, the other approach, adopted by the English courts, is to be preferred. [15]

Lord Radcliffe

  • “If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law.” [36]