The question for determination was whether fees paid to Mr Clinch were chargeable to tax under Schedule E as emoluments of an “office” or chargeable under Schedule D.
Mr Clinch was a chartered civil engineer. He was one of a panel
of some 60 persons whom the Department of Environment invited from
time to time to act as Inspectors to hold public local inquiries in
respect of matters for which the Secretary of State for the
Environment was responsible. A Department official would inform him
of the location and date of an inquiry, and the daily fee payable,
and would invite him to undertake it. Mr Clinch had complete
discretion to accept or refuse the invitation.
On acceptance he would have the papers forwarded to him with
an authority, signed on behalf of the Secretary of State,
appointing him to hold the particular inquiry. The conduct and
procedure was his sole responsibility, subject to the rules
governing Tribunals and Inquiries. If he became ill, or had some
other urgent business to attend to, he could ask to be released. If
the Department consented, it would find some other Inspector to
conclude the inquiry.
The case reached the House of Lords where, by a 3 to 2 majority, it was held that Mr Clinch did not hold an office.
Until this case, the meaning of the word “office” was considered to be that given by Rowlatt J in the case of Great Western Railway Co. v Bater (8TC231) i.e.
“a subsisting, permanent, substantive position which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders.”
In Edwards v Clinch, Lord Wilberforce considered whether the definition was still appropriate in 1981. He accepted that a rigid requirement of permanence was no longer appropriate and continuity need not be regarded as an absolute qualification. However, the word must involve a degree of continuance and of independent existence. It must connote
“a post to which a person can be appointed, which he can vacate and to which a successor can be appointed.”
In Mr Clinch’s case the majority view was that he was not
appointed to a position which had an existence of its own or the
continuance essential for an office. He was acting in a personal
capacity to carry out a specific task.
Included in the various judgments are references to the many
cases in which the subject of “office” was a factor.
These include:
