R1: Respondent's notices and permission to appeal
Respondent’s notice required in all cases where respondent intends to go beyond the reasoning in the FTT
"(1A) Subject to any direction given by the Upper Tribunal, a respondent may, and if paragraph (1B) applies must, provide a response to a notice of appeal.
(1B) In the case of an appeal against the decision of another tribunal, a respondent must provide a response to a notice of appeal if the respondent—
(a) wishes the Upper Tribunal to uphold the decision for reasons other than those given by the tribunal; or
(b) relies on any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal." (SI 2008/2698, r.24(1A), (1B))
" The point of the additional grounds provision is, evidently, that the appellant and the UT should know in advance of the hearing what matters will be in issue, but that can only be achieved if there is an obligation to provide a response in such a case. I also note the requirement of paragraph (4) that a respondent who provides a response out of time must seek an extension: that would seem to be empty if there were no circumstances in which a response was mandatory. In my view on a purposive construction the effect of rule 24 is that in a case where a respondent wishes to rely on a ground on which they were unsuccessful below they are under an obligation to provide a response." (Secretary of State for Home Department v. Devani  EWCA Civ 612, Underhill LJ)
“But I do think that if a respondent wishes to rely on any grounds in support of his opposition to an appeal (other than simply relying on the decision which is being appealed) then he should say so; and if he fails to say so, and fails to obtain an extension of time, then the consequence is that he cannot run such arguments on the appeal without the permission of the tribunal.” (Acornwood LLP v. HMRC  UKUT 361 (TCC), §107, Nugee J).
“Had Union Castle not appealed, HMRC would have had no interest in appealing the FTT’s decision in that case and could not have done so. HMRC is therefore only arguing, as respondent to Union Castle's appeal, that the FTT should also have reached the decision that it did for an additional reason. It is not seeking to appeal the FTT's disposition of that case.” (The Union Castle Mail Steamship Company Limited v. HMRC  UKUT 316 (TCC), §59, Fancourt J and Judge Berner)
Short reference to grounds before FTT acceptable for points of statutory interpretation
“Where the respondent to an appeal lost in the FTT on, say, points of statutory interpretation, it may well suffice for him to say that he relies on the same grounds that he relied on before the FTT. Something to that effect may identify the arguments adequately to satisfy the rule 24 requirement to state “grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal”. For the respondent to rehearse in his response to the notice of appeal the arguments on which he failed in the FTT might merely add verbiage needlessly.” (GDF Suez Teeside Limited v. HMRC  UKUT 68 (TCC), §39, Newey J and Judge Bishopp).
But not for challenges to findings of fact/expert evidence
“The position seems to us, however, to be different where a respondent wishes to challenge a finding of fact that the FTT made or its assessment of expert evidence. The grounds on which a respondent might hope to overturn such a finding will necessarily differ from those it put forward before the FTT. At least normally, therefore, a response giving “the grounds on which the respondent relies” should do more than just state that the respondent relies on the same grounds that he relied on before the FTT… On appeal, the person wishing to impugn the finding (whether as an appellant or a respondent) has to show why, having regard in particular to the guidance to be found in Edwards v Bairstow  AC 14, the FTT was not entitled to make the relevant finding.” (GDF Suez Teeside Limited v. HMRC  UKUT 68 (TCC), §§40…42, Newey J and Judge Bishopp).
Frivolous or vexatious Respondents’ notices
“The Court of Appeal has always had, and still has, the power to consider whether a Respondent's notice is frivolous or vexatious, and in one sense this case could be said to about where the onus should lie for dismissing the factual aspect of the factual appeal summarily.” (Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd (No.3)  EWCA Civ 1142, §40).
Three kinds: (1) Notice to vary; (2) Notice to affirm on other grounds; (3) Notice of cross-appeal
“RSC Ord 59 r 6(1) (conveniently set out in Nogaat ) distinguished three different types of notice: (a) a notice to vary the decision below either in any event or in the event of the appeal being allowed; (b) a notice to affirm the decision below on other grounds; and (c) a notice of cross-appeal.” (Price v. HMRC  UKUT 164 (TCC), §52, Nugee J and Judge Nowlan).
Difference between notice to vary and cross appeal
“[RSC Ord 59 r.6(1)] recognised the difference between a full cross-appeal where the Appellant relies on one cause of action and the Respondent seeks to uphold the judge on another but different cause of action (1)(c); a situation in which the Respondent seeks to vary the decision in the court below (1)(a); and the defensive Respondent's notice seeking to affirm on grounds other than those relied upon by the court below (1)(b).” (Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd (No.3)  EWCA Civ 1142, §35).
Difference between notice to affirm and notice to vary/cross appeal
“A notice to vary or of crossappeal required the Respondent to set out the precise form of order which he invited the court to make, but a notice to affirm did not, precisely because the Respondent was not seeking any different order. In this terminology, HMRC’s notice, which does not seek any different decision from the UT from that given by the FTT, is a notice to affirm, not a notice to vary or a crossappeal.” (Price v. HMRC  UKUT 164 (TCC), §52, Nugee J and Judge Nowlan).
Permission to appeal required to argue for a better result (notice to vary)
" In considering whether a point raised in a respondent's notice can only be made if permission to appeal is granted, one must identify what decision of the FTT is being challenged. The outcome in relation to the 'cut and cover' conduits was the consequence of the Upper Tribunal having identified an error of law in the FTT's interpretation of the word 'aqueduct' in List B Item 1. That issue was before it because the grounds of appeal raised by HMRC in its appeal from the FTT to the Upper Tribunal challenged the FTT's decision that the headrace was not an aqueduct. In its response to the appeal filed with the Upper Tribunal, SSE submitted that the FTT should have concluded that the conduits and tailraces were not aqueducts. The conclusion that the drill and blast conduits, the uncovered channel conduits and the headrace are not aqueducts leads to the same result as the FTT arrived at for other reasons - the expenditure on them is allowable in full. Applying the narrower definition of 'aqueduct' to the 'cut and cover' conduits leads to a different result because the FTT allowed only part of the costs. The decision challenged here is not as to the meaning of the word 'aqueduct' but as to whether HMRC's closure notice was correct in disallowing the capital expenditure incurred on the 'cut and cover' conduits. The Upper Tribunal's decision increased the amount of allowable expenditure but that result could only be achieved if SSE had sought permission to do better than the partial allowance. No such permission had either been sought or granted and in my judgment HMRC are right to say that the Upper Tribunal erred in concluding at  that the expenditure was recoverable in full." (HMRC v. SSE Generation Limited  EWCA Civ 105, Rose LJ)
“In the present appeal to the Upper Tribunal, it appears that ET would have wished to submit not only that the FTT ought to have reached a materially different conclusion on the parties’ applications, but also, in effect, that it should have decided the appeal in principle in favour of ET. In my view that would have required the leave of the FTT and, as no such application was made, I would have had no jurisdiction to address the submission or even to grant leave to argue it.” (HMRC v. Earlsferry Thistle Golf Club  UKUT 250 (TCC), §25, Lord Tyre).
“If a respondent wants to argue that the First-tier Tribunal should have reached a materially different conclusion then the respondent needs permission to appeal.” (EG and NG  UKUT 143 (IAC)).
An application to amend grounds of further appeal is not a late application for permission to appeal
“Earlsferry thus differs from this case in that no application for permission to appeal had been made by the respondent in that case. In this case, by contrast, an application was made by Mr and Mrs Hills to the FTT, the FTT refused the application, and permission to appeal was given by this Tribunal. Where permission to appeal has been given, whether by the First-tier Tribunal or the Upper Tribunal, an application in this Tribunal for further grounds to be permitted to be advanced is not properly regarded as a fresh application for permission to appeal, and does not require to be made in the first instance to the First-tier Tribunal.” (Hills v. HMRC  UKUT 266 (TCC), §27, Judge Berner).
Permission to appeal not required where successful party supports decision but, if unsuccessful, argues for an alternative result in its favour
" I do agree with HMRC, however, that it not enough, so far as permission is required, to simply say that the order a party seeks varies the decision. As HMRC submit, it is relevant to ask whether the party seeks to “do better” in the terminology used by the Court of Appeal in SSE (at ). In my view this is because when a party seeks to “do better” that normally reveals that they have otherwise failed in some respect in relation to the decision (as construed in accordance with the relevant principles) by not achieving the success or level of success they could have. Thus, in Price, the terms of the objectionable variation, which if HMRC had sought it, would require permission, were ones which were discussed in terms of the capital allowance loss being less than the £48 achieved, and therefore were outcomes where HMRC would have improved on the success that it might otherwise have achieved. Similarly, in SSE, the relevant ground which was found to require permission sought to improve the party’s success. If the principle that permission is required where someone seeks to vary the decision, but without regard to whether the party seeks to “do better”, it risks inconsistency with the principle that appeals only lie to parties who were unsuccessful. A successful party to an FTT decision, who if certain conditions are met, advocates a position that is worse than the FTT decision (because it is not as bad as the outcome that would otherwise occur if the FTT decision is overturned) does not require permission." (HBOS Plc v. HMRC  UKUT 139 (TCC), Judge Raghavan)
Successful party does not need permission to support decision on different grounds (notice to affirm)
" However, requiring a party who has won on the decision the FTT did make, but lost on the alternative, to apply for permission to appeal to the FTT regarding grounds on the alternative decision would require that party to apply on the assumed basis the other party was appealing. It would not be a ground of appeal that stood in its own right. It would also be a ground which was inevitably prefaced with the would-be appellant’s support for the decision which the FTT did make. To insist that this kind of ground required permission would go against the principle that an appeal is something brought by the unsuccessful party to the decision. Also, insisting such a ground required permission would imply it was a ground in relation to which permission was capable in principle of being granted. If it were granted, it would result in an appeal proceeding before the UT on a hypothetical basis, namely that the decision the FTT did in fact make, was wrong. As Ms Mitrophanous points out, the basis why such appeals are not entertained is the same reason why tribunals do not entertain appeals where the appellant is content with result but seeks to make an appeal because it disagrees with the tribunal’s reasoning. The appeal would be academic." (HBOS Plc v. HMRC  UKUT 139 (TCC), Judge Raghavan)
" We consider that the following principles emerge from Rose LJ’s judgment in SSE Generation:
(1) Respondents should not assume that they are free to raise, in a Respondent’s Notice, any arguments they choose to the effect that a decision of the FTT should be upheld for reasons additional to, or different from, those of the FTT. Some such arguments will require permission to appeal and, since Rule 21(2) of the Upper Tribunal Rules requires permission first to be sought from the FTT, Respondents are not presently entitled to seek any such permission in a Respondent’s Notice itself (see  of Rose LJ’s judgment)1 .
(2) In order to identify whether permission to appeal is needed to pursue a point made in a Respondent’s Notice it is necessary to identify the decision of the FTT to which the Respondent’s arguments relate. The focus in on the FTT’s decision, not on arguments it accepts or rejects on the way to making that decision (see  of Rose LJ’s judgment).
(3) If the Respondent is seeking to persuade the FTT to make a different decision, it is likely to need permission to appeal. However, if the Respondent succeeded on a particular issue before the FTT because the FTT accepted one of a number of arguments while rejecting other arguments, the Respondent can raise those unsuccessful arguments in a Respondent’s Notice (see  of Rose LJ’s judgment) because the Respondent would not, in so doing, be seeking a different decision.
 Applying that approach, in our judgment, the FTT’s “decision” was as to the correctness or otherwise of HMRC’s discovery assessment. Paragraph 35(1)(c) of Schedule 10 to FA 2003 gave Mr Fanning a statutory right of appeal against that discovery assessment and, on notification of that appeal to the FTT, the FTT was obliged to “decide the matter in question” (see paragraphs 36D(5) and 36G(4) of Schedule 10). The FTT’s decision was entirely in HMRC’s favour since the FTT upheld HMRC’s discovery assessment in its entirety.
 Since HMRC were entirely successful before the FTT, their Respondents’ Notice is not asking the Upper Tribunal to make a different decision. HMRC’s complete success before the FTT came because the FTT accepted certain of their arguments even though it rejected others. HMRC are seeking to raise before us arguments on which it was unsuccessful before the FTT as part of its case that the FTT’s overall decision was correct. It is entitled to do so by way of Respondents’ Notice and does not need any grant of permission to appeal. We will permit HMRC to advance the argument set out in paragraph  above by way of a Respondents’ Notice." (Fanning v. HMRC  UKUT 21 (TCC), Miles J and Judge Jonathan Richards)
“The corollary of the fact that a party cannot appeal if the decision below is in his favour is that a respondent to an appeal who seeks to uphold the decision below, but on different grounds to those relied on by the lower court or tribunal, does not need permission to do so.” (Price v. HMRC  UKUT 164 (TCC), §35, Nugee J and Judge Nowlan).
Can include challenge to findings of fact
“I should add that there was never a suggestion that the grounds under a (1)(b) notice could not include suggesting that the judge's findings of fact were wrong.” (Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd (No.3)  EWCA Civ 1142, §36).
Can include a challenge that could produce a different result, as long as party is not seeking different result
“We accept that it might well have been possible for HMRC to argue that the result of taking market value for Mr Myers’ acquisition cost would be that his allowable loss was not £48 and might be as little as nil, and that they could therefore have asked the UT, if it agreed with their challenge to the FTT’s conclusion on Decision 1, to remit the matter to the FTT to find the actual market value on 17 March with a view to establishing that it was less than £48…But HMRC do not contend that Mr Myers’ allowable loss is nil. They have dropped the challenge to Decision 8(a), and so far as market value is concerned, they have eschewed any attempt to establish that success on Decision 1 should lead to a different result, or to have market value assessed by the FTT…We accept that if HMRC succeeded in overturning Decision 1, they could not prevent Mr Myers from arguing that market value might be more than £600 and that the question of market value should be remitted to the FTT; but that would be a matter for Mr Myers. It does not affect HMRC’s acceptance that if they succeeded in overturning Decision 1 they would not be seeking any different decision to that made by the FTT…” (Price v. HMRC  UKUT 164 (TCC), §§50…51…54, Nugee J and Judge Nowlan).
But respondent's notice still required
" As Mr Nawbatt pointed out in both opening and reply, there is no respondent's notice. The outcome of this appeal must therefore turn on the validity of the reasons which the UT gave for overturning the FTT's decision. It is immaterial whether or not that decision might have been open to challenge on some other ground." (HMRC v. Development Securities Plc  EWCA Civ 1705)
Notice to cross appeal (may require permission)
"(3) The response must state—
(e)the grounds on which the respondent relies, including (in the case of an appeal against the decision of another tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal;" (UT Rules, r24(3(e))
Largely successful party does not need permission to cross-appeal
“…a largely successful appellant, as SDM was, before the First-tier Tribunal can appeal, without first securing permission, against any finding in the First-tier Tribunal’s decision adverse to it once it has been served with notice of appeal to the Upper Tribunal by the party largely unsuccessful before the First-tier Tribunal." (HMRC v. SDM European Transport Limited  UKUT 625 (TCC), §105, Judges Bishopp and Cannan).
Permission to cross appeal necessary where there was more than one distinct issue before the FTT (e.g. appeal against the disallowance of two separate expenses)
“Permission to appeal and cross-appeal is necessary in order to prevent the Upper Tribunal from being over-burdened with unmeritorious appeals. If a party could properly bring any matter before the Tribunal without first obtaining permission of either the [First-tier Tribunal] or the [Upper] Tribunal to cross-appeal that would drive a cart and horses through the procedures and result in the need for permission to cross-appeal being removed in practice. It could also lead to arguments that the appealing party, having been given permission to appeal on a particular point, could raise other points, without permission having been granted, on the basis that the same would be avoiding unnecessary formality and seeking flexibility in the proceedings. The [First-tier Tribunal] or the [Upper] Tribunal are careful in ensuring that only those matters which have a realistic prospect of success are allowed to proceed to appeal. It is an important part of the management of the Tribunals work that permission stage exists and it would be wrong for parties to consider they can circumvent that requirement.” (Avon Estates (London) Ltd v. Sinclair Gardens Investments (Kensington) Ltd  UKUT 264 (LC, §36, cited and applied in Healy v. HMRC  UKFTT 233 (TC), §46).
Permission to appeal (if needed) must be sought from the Upper Tribunal in Respondent's notice
"(1B) In the case of an appeal against the decision of another tribunal, a respondent must provide a response to a notice of appeal if the respondent—
(a) wishes the Upper Tribunal to uphold the decision for reasons other than those given by the tribunal; or
(b) relies on any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal.
(1C) If paragraph (1B) applies, to the extent that the respondent needs any permission, including permission to appeal to the Upper Tribunal, the response must include an application to the Upper Tribunal for such permission." (SI 2008/2698, r.24(1B), (1C))
Prior to 6 April 2022: application to FTT
"Although I accept that a party who has lost on a minor issue may well find itself in the same position as SSE, neither that argument based on practicalities nor the venerable principle can override the statutory requirement for permission to appeal. The procedure established by section 11 TCEA, the FTT Rules and the UT Rules is different from the procedure which operates under the Civil Procedure Rules as set out in CPR 52.13. In that rule, a respondent may serve a respondent's notice which seeks permission to appeal from the appeal court as well as asking the appeal court to uphold the decision of the lower court for reasons different from, or additional to, those given by the lower court. The respondent does not therefore have to seek permission first from the lower court within the time limit set for an initial appeal. According to the different procedure adopted under the tribunal rules, the respondent cannot seek permission to appeal in the response notice served under rule 24 of the UT Rules. A respondent in the position of SSE which, once an appeal is on foot, wants to reverse a point decided against it in the FTT must apply for permission to the FTT. If the time limit for doing so has expired, it must request an extension of time, giving the reasons why the application notice was not provided in time: see FTT Rule 39(4). At that stage the FTT will consider whether the proposed appeal meets the test for the grant of permission and whether time should be extended. The latter point will require consideration of how far the respondent's appeal will enlarge the scope of the appeal and whether it is consistent with the overriding objective to grant permission. The fact that the respondent's application would open up several new fronts in the appeal leading to a longer and more complicated hearing, does not rule out the grant of permission. The original appellant is not entitled to insist that the scope of the appeal remains within the limited compass of the grounds that it has raised. The fact that a late application for permission may widen the scope of the appeal is a risk that the appellant takes, if the respondent has properly arguable issues that could result in the appellant being worse off than if they had let the FTT's decision lie. A similar issue was considered by the Upper Tribunal (Nugee J and Judge Nowlan) in Price and others v HMRC  UKUT 164 (TCC),  STC 1975. I respectfully agree entirely with the analysis and reasoning set out there." (HMRC v. SSE Generation Limited  EWCA Civ 105, Rose LJ)
Argument that other party needed permission to appeal should be raised immediately
" Following the Court of Appeal’s judgment in SSE Generation, it is not infrequent for appellants to argue that a respondent who has not sought permission to appeal from the FTT should be precluded from running arguments set out in a Respondent’s Notice before the Upper Tribunal. Often the point is taken for the first time in oral submissions before the Upper Tribunal. It is obviously undesirable for points having a bearing on which arguments can be pursued at a hearing to emerge for the first time at the hearing itself. Therefore, we do hope that appellants wishing to take points such as this will, in future, raise them either in a Reply to a Respondent’s Notice (served pursuant to Rule 25 of the Upper Tribunal Rules) or by way of interlocutory application so that, to the extent practicable, the issue can be resolved in advance of the hearing. In saying this, we are expressing a hope as to the way in which litigants raise any such point in the future, rather than a criticism of Mr Hickey’s conduct. We recognise that Mr Hickey was instructed shortly before the hearing and raised the point as soon as he reasonably could." (Fanning v. HMRC  UKUT 21 (TCC), Miles J and Judge Jonathan Richards)
Time limit for Respondent's notice: 1 month from UT sending copy of notice of appeal
"(2) Any response provided under paragraph (1A) must be in writing and must be sent or delivered to the Upper Tribunal so that it is received—
(b)in any other case, no later than 1 month after the date on which the Upper Tribunal sent a copy of the notice of appeal to the respondent." (UT Rules, SI 2008/2698, r.24(2)(b))
Late Respondent’s notice: must apply for relief from sanctions
"(4) If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time." (UT Rules, SI 2008/2698, r.24(4))
“I have considered the factors identified in CPR rule 3.9. Those that seem to me to be most compelling are, first, as regards procedure, that the skeleton argument and draft Respondent's notice came too late for the Revenue to be able to consider them with the relevant members of their staff, which would not have been the case if they had been served even three weeks or a month before the hearing, and secondly, as a substantive point, that they depend on matters of fact not found in the Case Stated, so they are irrelevant. I therefore refuse permission to serve a Respondent's notice, and I will not go any further into the points addressed in para 7 of [the taxpayer’s] skeleton argument.” (Guthrie v. Twickenham Film Studios Ltd  STC 1374, §29).
Form of respondent's notice
"(3) The response must state—
(a) the name and address of the respondent;
(b) the name and address of the representative (if any) of the respondent;
(c) an address where documents for the respondent may be sent or delivered;
(d) whether the respondent opposes the appeal;
(e) the grounds—
(i) to uphold the decision for reasons other than those given by the tribunal; or
(ii) on which the respondent was unsuccessful in the proceedings which are the subject of the appeal; and
(ea) the reasons why any permission applied for under paragraph (1C) should be given; and
(f) whether the respondent wants the case to be dealt with at a hearing." (UT Rules, SI 2008/2698, r.24(3))
Permission to amend required if issue not raised in respondent’s notice
“In the present case, HMRC’s response to the notice of appeal did not attempt to explain how the FTT’s conclusions on Issues 1-3 could be set aside on an Edwards v Bairstow basis. Paragraph 5 of the response added nothing of significance to the general statement that HMRC relied on “the same grounds as they relied upon before the First-tier Tribunal”, and those grounds could not of themselves suffice to justify us in overturning a finding of fact or assessment of expert evidence. That means, as it appears to us, that HMRC cannot pursue Issues 1-3 without our permission.” (GDF Suez Teeside Limited v. HMRC  UKUT 68 (TCC), §43, Newey J and Judge Bishopp).
Permission granted where no unfairness to appellant
“With a degree of hesitation, however, we have concluded that we should grant such permission. It seems to us that, in the particular circumstances, permission can be given without unfairness to TPL. While HMRC’s response to the notice of appeal was, in our view, deficient, their skeleton argument will have given TPL notice that they proposed to argue that, in relation to the accounting issues, the FTT “erred in law (insofar as it is a finding of law) and/or erred in law in the Edwards v Bairstow sense (insofar as it is a finding of fact)”, and TPL was able to address the issues in detail in a reply skeleton argument of 16 November 2016. The points were also aired during oral argument. It would appear that TPL would have been no better off if HMRC had spelt out in its response the “grounds” on which it has subsequently sought to impugn the FTT’s conclusions on the accounting questions.” (GDF Suez Teeside Limited v. HMRC  UKUT 68 (TCC), §44, Newey J and Judge Bishopp).
Appellant's reply (1 month)
"(1) Subject to any direction given by the Upper Tribunal, the appellant may provide a reply to any response provided under rule 24 (response to the notice of appeal).
(2) Subject to paragraph (2A), any reply provided under paragraph (1) must be in writing and must be sent or delivered to the Upper Tribunal so that it is received within one month after the date on which the Upper Tribunal sent a copy of the response to the appellant.
(3) When the Upper Tribunal receives the reply it must send a copy of the reply and any accompanying documents to each respondent." (UT Rules, SI 2008/2698, r.25)