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Q11: Appealing case management decisions

Whether decision is simply a matter of case management

Decisions that will pre-empt other proceedings 

“For my part I accept that this is a case management decision. It is, however, not simply a matter of management if one set of proceedings will effectively pre-empt or significantly raise an obstacle to the other.” (Davies v. HMRC [2008] EWCA Civ 933, §15 – in relation to a decision to adjourn the hearing of the permission stage of judicial review proceedings until the statutory appeal was concluded).

Whether decision is simply a matter of case management

Similar approach for exercise of statutory discretions​

 

"[18] In these proceedings, the Border Force is challenging the FTT’s exercise of a statutory discretion. Although that is not strictly a “case management” discretion (see [18] and [19] of Martland), we should nevertheless be slow to interfere with the proper exercise of the FTT’s discretion. Like the Upper Tribunal in Martland, we will apply by analogy the well-known statement of principle set out by Lawrence Collins LJ in Walbrook Trustee (Jersey) Limited v Fattal [2008] EWCA Civ 427..." (Director of Border Reveneu v. Turek [2020] UKUT 167 (TCC), Judge Richards and Judge Greenbank)

Similar approach for exercise of statutory discretions​
Case management decisions within case management decisions ​

Case management decisions within case management decisions 

 

"[69] We agree with HMRC that the decision to admit the letter of RSM at the hearing on 12 October 2020 can be characterised as a ‘meta case management decision’.  It was a case management decision within the hearing of an application for a disclosure direction, itself a case management application.  Placing it in this perspective emphasises the point that the Upper Tribunal should be very slow to interfere with it." (Ellis v. HMRC [2022] UKUT 254 (TCC), Judge Greenbank and Judge Rupert Jones)

Error of law may not be material to main case management decision

"[80] We do not regard the failure to give reasons for the decision to admit the RSM letter, or to identify the correct test for that decision both at the hearing and in its written decision, as demonstrating that the decision to grant the application for disclosure was plainly wrong or unjustifiable." (Ellis v. HMRC [2022] UKUT 254 (TCC), Judge Greenbank and Judge Rupert Jones)

Whether to issue decision in principle is case management decision

 

"[52] As is well-established (see for instance Wrottesley [9] to [13] and the authorities referred to there) the Upper Tribunal will be slow to interfere with the FTT's exercise of a case management discretion unless it is so plainly wrong that it is outside the generous ambit of discretion entrusted to the judge. Mr Firth argues the decision was plainly wrong because it failed to consider the relevant factor of the inadequacy of HMRC's pleadings and the circumstances in which the quantification issue arose." (Kingston Maurward College v. HMRC [2023] UKUT 69 (TCC), Judge Raghavan and Judge Brannan)

Whether to issue decision in principle is case management decision

Grounds of challenge: summary

"[21] This was a full and very carefully considered judgment. However, it would nonetheless be appropriate for an appellate court to interfere with it, if it could be shown that irrelevant material was taken into account, relevant material was ignored (unless the appellate court was quite satisfied that the error made no difference to the decision), there had been a failure to apply the right principles, or if the decision was one which no reasonable tribunal could have reached. Ms Simor has argued that there were a number of errors in the judgment, and also that the ultimate decision was outside the bounds of what a reasonable tribunal could have decided." (HMRC v. BPP Holdings Ltd [2017] UKSC 55, Lord Neuberger)

"[20] As the Upper Tribunal recently set out in NTK Leisure Limited v HMRC [2022] UKUT 289 (TCC) (which also concerned an appeal in relation to a reinstatement application following a strike-out), a decision on reinstatement involves the exercise of discretion by the FTT in relation to a matter of case management.

[21] The Upper Tribunal will accordingly be slow to interfere with the proper exercise by the FTT of its discretion in case management decisions unless the judge has failed to apply the correct principles, failed to take into account matters which should be taken into account, or has left out of account matters which are relevant, or the Upper Tribunal is satisfied the decision is plainly wrong. This reflects the observations of Lawrence Collins LJ in Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 in relation to case management decisions under the Civil Procedure Rules but which were quoted with approval by the Supreme Court in  BPP Holdings Ltd & Ors v HMRC [2017] UKSC 55 (at [33]), which was a case involving case management discretion under the FTT Rules, in that case a debarring order (the equivalent sanction to a strike-out in relation to respondents to appeals).

[22] There is no issue here regarding the grounds of appeal falling with the above restrictions. As [the taxpayer] explained, Grounds 1 and 3 allege errors of principle, and Ground 2 is a challenge based on the FTT failing to take account of a relevant matter." (Lingajothy v. HMRC [2023] UKUT 63 (TCC), Judge Raghavan and Judge Greenbank)

Grounds of challenge: summary

Generous ambit of discretion entrusted to judge/slow to interfere 

"[16] The first, and ultimately insuperable obstacle faced by Mr Watts is that his appeal is against the exercise of a case management discretion, namely the discretion either to grant or refuse an extension of time. It is now well established that this court is in the highest degree reluctant to interfere in first instance decisions of that character. The court will only do so where the judge has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision which is plainly wrong in the sense of being outside the generous ambit of discretion where reasonable decision-makers may disagree: see for a recent re-statement of that approach: Broughton v Kop Football (Cayman) Limited and others [2012] EWCA Civ 1743 at [51], per Lewison LJ. Strict rules against appellate intervention in case management decisions are necessary, otherwise the progress of actions towards trial would be the subject of repeated interruptions caused by appeals." (Watts v. HMRC [2021] EWCA Civ 1124)

“These were case management decisions. I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.” (Walbrook Trustee (Jersey) Ltd v. Fattal [2008] EWCA Civ 427, §33, Lawrence Collins LJ).

“It is well-established that this Tribunal will be slow to interfere with the proper exercise by the FTT of its discretion in case management decisions…In short, if these principles are to be applied, we will need to be satisfied that the FTT were plainly wrong if we are to set aside their decision. It is not sufficient that we may have exercised the discretion ourselves differently.” (Westminster Trading Ltd v. HMRC [2017] UKUT 23 (TCC), §§49…50).

“I am clear that the principle [in Walbrook Trustee, see above] applies with at least as great, if not greater, force in the tribunals’ jurisdiction as it does in the court system.” (Goldman Sachs International v. HMRC [2009] UKUT 90 (TCC), §23, Norris J)
 

Generous ambit of discretion entrusted to judge/slow to interfere 

Appeals against decisions relating to costs (same approach)

 

"[46] The parties were rightly agreed that this Tribunal should be slow to interfere with the exercise of a case-management discretion, particularly where that discretion related to the award of costs. In Atlasjet Havacilik Anonim Sirketi v Ozlem Kupeli and others [2018] EWCA Civ 1264, Hickinbottom LJ set out the applicable principle as follows:  

5. In relation to that rule, several points are worthy of note.

i) In considering orders for costs, the court is of course bound to pursue the overriding objective as set out in CPR rule 1.1, i.e. it must make an order that deals justly with the issue of costs as between the parties. Therefore, when considering whether to make a costs order – and, if so, the order it makes – the court has to make an evaluative judgment as to where justice lies, on the facts and circumstances as it has found them to be.

ii) Before an appeal court will interfere with the exercise of that discretion, as with any appeal, it must be satisfied that the decision of the lower court was wrong or unjust because of a serious irregularity in the proceedings below (CPR rule 52.21(3)). No one suggests that there was a serious irregularity in this case.

iii) Before an appeal court concludes that the costs decision below was "wrong", it must be persuaded that the judge erred in principle, or left out of account a material factor that he should have taken into account, or took into account an immaterial factor, or that the exercise of his discretion was "wholly wrong" (see, e.g., Adamson v Halifax Plc [2002] EWCA Civ 1134; [2003] 1 WLR 60 at [16] per Sir Murray Stuart-Smith, adopting (post-CPR) the conventional (pre-CPR) approach he described in Roache v News Group Newspapers Limited [1998] EMLR 161 at page 172).

iv) An appeal court will only rarely find that the exercise of discretion below is "wholly wrong", because not only is that discretion particularly wide but the judge below is usually uniquely well-placed to make the required assessment, having heard the relevant evidence." (Worldpay UK Limited v. HMRC [2020] UKUT 290 (TCC), Judge Richards and Judge Cannan - relating to a decision to defer determining the costs consequences of HMRC being permitted to amend their statement of case at a very late stage)

Appeals against decisions relating to costs (same approach)

Error of approach impugns decision unless it could have made no difference to the outcome

“The whole debate for the purposes of Ground 2 was as to the way the F-tT went about its fact finding in relation to due diligence. In the last sentence of [369], the F-tT states that the precise extent of due diligence was not determinative. Thus, even if it had at some earlier point misdirected itself in relation to due diligence, it would not have affected the result and it would not be appropriate to remit the matter on the basis of such a misdirection.” (HMRC v. CCA Distribution Ltd (in administration) [2015] UKUT 513, §73, Morgan J and Judge Herrington).

“However, it is not enough simply to attack the approach. Mr Maugham must in addition demonstrate that, had the F-tT approached this part of the evidence correctly, their doing so would, or at least might, have affected the outcome.” (Degorce v. HMRC [2015] UKUT 447 (TCC), §95, Hildyard J and Judge Bishopp).

“Accordingly, unless it can be demonstrated from the decision as a whole that the wrong approach could have made no difference to the outcome, the Judge’s decision to allocate the case as a Standard case should be set aside and the matter should be determined afresh. For our part, we are unable to conclude that the adoption of the wrong approach could have had no impact on his actual decision. Accordingly, we would allow the appeal on this ground alone.” (Capital Air Services Ltd v. HMRC [2010] UKUT 373, §25).
 

Error of approach impugns decision unless it could have made no difference to the outcome

Not required to consider alternative direction not suggested by the parties

 

"[80]...We were initially concerned that in not considering whether some documents should be disclosed to Mr Bell, even if HMRC were not entitled to rely on them, the FTT might have made an error of law of the type referred to in Ingenious, by failing to take into account a relevant consideration. However, on reflection, we consider that the FTT made no such error.

[81] We reach that conclusion for the simple reason that neither HMRC nor Mr Bell asked the FTT to consider this alternative approach..." (Mitchell and Bell v. HMRC [2021] UKUT 250 (TCC), Judge Richards and Judge Cannan)

“It follows that the reasoning of the FtT, when refusing permission to amend, was wrong in law and cannot stand. Even if the first reason referred to above is not to be regarded as a reason for refusing permission to amend but only a misunderstanding of whether permission was needed, it remains the case that the FtT took into account three matters, two of which it should not have taken into account.” (HMRC v. AG Villodre SL [2016] UKUT 166 (TCC), §59).
 

Not required to consider alternative direction not suggested by the parties​

Focus is on the decision the Tribunal actually made, not alternative decisions it could have made

 

"[57] Moreover, we consider that the appropriate focus should, in the first instance, be on the decision that the FTT did make (to defer the determination of costs) and not on an alternative decision (to make an immediate award of costs) that the FTT could have made. Of course, we recognise that Worldpay’s complaint is that the FTT should immediately have given it its costs. However, it seems to us that this is to conflate the consideration of whether there was an error of law in the FTT’s decision with consideration of the way that decision should be remade if there was such an error. In our judgment, in order to achieve the outcome it seeks, Worldpay must first satisfy us that the FTT was wrong to make the decision it did, to defer consideration of costs. If, and only if, it succeeds with that argument, it must establish that the Decision must be remade so as to provide for an immediate award of costs to Worldpay." (Worldpay UK Limited v. HMRC [2020] UKUT 290 (TCC), Judge Richards and Judge Cannan - relating to a decision to defer determining the costs consequences of HMRC being permitted to amend their statement of case at a very late stage)

Focus is on the decision the Tribunal actually made, not alternative decisions it could have made

Consequential case management decision cannot be challenged on the basis that prior, unappealed case management decision was wrong

 

"[56] No particular difficulty would arise if Worldpay was challenging both the FTT’s decision to permit the amendment and its decision on costs. In that case, Worldpay could argue that the FTT had been wrong, as a matter of law or principle, to permit the amendment. If that argument succeeded before the Upper Tribunal, the Upper Tribunal could have remade the decision to allow the amendment and having done so could, in exercise of its powers under s12(4) of the Tribunals, Courts and Enforcement Act 2007, have made a direction to the effect that HMRC should pay Worldpay its costs thrown away by the postponement of the hearing. However, in circumstances where Worldpay is not appealing against the decision to allow the amendment, Worldpay’s collateral attack on that decision introduces a degree of unreality into proceedings. Worldpay is effectively saying that the FTT should, applying correct principles at the costs stage of its decision, have concluded that HMRC had no good reason to amend their pleadings so late even though the FTT had already decided that there were good reasons when permitting the amendment." (Worldpay UK Limited v. HMRC [2020] UKUT 290 (TCC), Judge Richards and Judge Cannan - relating to a decision to defer determining the costs consequences of HMRC being permitted to amend their statement of case at a very late stage)

Consequential case management decision cannot be challenged on the basis that prior, unappealed case management decision was wrong

Failing to take account of relevant considerations

FTT not taking into account partial compliance

"[39] The ground of appeal is that the FTT did not take into account the provision of an unsigned statement on 8 October 2019 in the Stage 1 test. Taking the provision of that statement into account would, we note, be consistent with the need to analyse the underlying breach, namely the failure to comply with the tribunal’s directions, standard in this type of case, to serve witness statements on the other party before the hearing is listed. We therefore agree with Mr Windle that the provision of the unsigned witness statement would, in principle, be of potential relevance. The FTT did not however take the unsigned witness statement into account at Stage 1. It wrongly focused on the breach of the unless order (to the exclusion of the underlying breach). That, in our judgment, represented an error of law." (Lingajothy v. HMRC [2023] UKUT 63 (TCC), Judge Raghavan and Judge Greenbank)

Particular importance of litigation being conducted efficiently and at proportionate cost

"[28] Therefore, the FTT had to take into account the “particular importance” of litigation being conducted efficiently and at proportionate cost and of rules and time limits being respected and give particular weight to those factors. However, in its self-direction at [47], the FTT said:

"These [factors] do not have special weight or importance and the obligation of the Tribunal remains simply to take into account, in the context of the overriding objective of dealing with cases fairly and justly, all relevant circumstances, and to disregard factors that are irrelevant."

[29] That, on its face, suggests that the FTT was misdirecting itself as to the parameters applicable to its exercise of discretion. Mr Gibbon argued that, even if the self-direction at [47] was not expressed perfectly, the FTT applied the correct approach when it said, at [57], that its evaluation has to proceed from the “starting point” that it is important that litigation be conducted efficiently and at proportionate cost, and that time limits be respected. We do not accept that submission. The wording in paragraph [57] might have been regarded as unexceptionable if the FTT had not included its mistaken selfdirection at [47]. However, when paragraph [57] and [47] are read together, we have reached the clear conclusion that describing the two factors merely as “starting points” did not give them the particular weight that Martland required." (HMRC v. BMW Shipping Agents Limited [2021] UKUT 91 (TCC), Judge Richards and Judge Cannan)
 

Failing to take account of relevant considerations

Taking into account irrelevant considerations

“It follows that the reasoning of the FtT, when refusing permission to amend, was wrong in law and cannot stand. Even if the first reason referred to above is not to be regarded as a reason for refusing permission to amend but only a misunderstanding of whether permission was needed, it remains the case that the FtT took into account three matters, two of which it should not have taken into account.” (HMRC v. AG Villodre SL [2016] UKUT 166 (TCC), §59).
 

Taking into account irrelevant considerations

No obligation to search for additional relevant points outside of submissions

 

"[48] In so far as Balls suggests that there is an obligation on the judge to have regard to the tribunal file, to identify any relevant material and to seek submissions from the parties if there is any matter to which the parties have not referred, then we do not consider that should apply to the FTT (Tax Chamber).  

[49] The starting point will be that in making decisions, in circumstances where the parties have had the opportunity to make their representations, the judge will expect the parties to identify the issues on which a decision is required and to refer to the documents from the file which are considered to be relevant to those issues (because either they have come from the party, or if not, they have been copied to them by the tribunal or the other party). In this case, we can see detailed directions were issued to flush out the submissions and the documents each party intended to rely on.

[50] To impose an obligation, in these circumstances, to consider the file to see if there is anything relevant in it which the parties have not referred to puts an unwarranted burden on judicial resource. Parties may reasonably be assumed to know what they have filed and because they are routinely expected to copy the other side on any communications with the tribunal to know what the other party has filed. Practical difficulties arise in that judges will not necessarily have ready access to the full file because the file may be located in a different location to where the judges sit. Even if accessible, the files can in some cases contain volumes of correspondence and applications stretching over a number of years.

[51] [The taxpayer], perhaps in recognition of these concerns, did not go to the extreme of suggesting that the FTT should be expected to peruse the file to identify any relevant material and then put all documents not referred to by the parties back to the parties for submissions. He put the obligation more narrowly: the tribunal should seek submissions where there was a document on the file that was considered potentially relevant such that it warranted mention in the FTT’s decision.

[52] In our view the relevant principles, grounded as they are in the fairness of giving parties the opportunity to deal with information the tribunal relies on, but which the parties have not had the opportunity to comment, require no elaboration. The application of the principles will depend on the particular facts. If the judge sees material on the tribunal file, which the judge considers relevant, in the sense that the FTT proposes to take account of it when making its decision, and it is clear  one or more of the parties has not seen it (for instance because the material  has not emanated from the parties, or if it did, it is clear that it was not copied to the other) then of course the FTT ought to invite submissions from the parties on it. As Balls indicates that is part of the normal duty to act judicially."(Lingajothy v. HMRC [2023] UKUT 63 (TCC), Judge Raghavan and Judge Greenbank)

No obligation to search for additional relevant points outside of submissions​

Error must be material

 

Failing to take account of sending of unsigned witness statement to FTT not material (not sent to HMRC and unless order required signed statement)

"For the reasons below the error, in our view, was clearly not material, in the sense that it might have made a difference, to the assessment of seriousness or significance under Stage 1, so as to warrant setting the FTT Decision aside.

(1)          The preceding order and the unless order required  the appellant to serve the witness statement on HMRC. It did not do so until 19 November 2019 (when the signed statement was served). There was thus no effect on the length of delay in correcting the breach (and therefore its seriousness) - particularly in light of FTT’s reasoning for purpose of serving witness statements. Moreover, even if HMRC had been served with the unsigned witness statement on 8 October 2019 that was still, in the context of the underlying breach, many weeks after the deadline specified in the third unless order. (We take this deadline to be 15 August 2019 being two weeks before 29 August 2019 - that was the date Mr Brown e-mailed the FTT and in relation to which the FTT said was two weeks after the extended deadline had expired (FTT [23] summarised at [6(9)] above)).

(2)          In any event, a breach of an unless order is “undoubtedly a pointer towards” the breach being considered serious and significant (British Gas ([41]). In this case, taking account of prior breach(es) simply makes the position worse as it is evidence of successive breaches of the same requirement. The fourth unless order was the culmination of a series of escalating steps the tribunal took, in case-managing the matter, which all in one way or another related to the same failure. This is not thus a point about the appellant’s general compliance history (which as was made clear in Denton [27] was better addressed at Stage 3) but successive non-compliance with the same obligation. Even putting the situation at its lowest, this was the  breach of the third of a series of unless orders which the tribunal made which required compliance by 15 August 2019. A conclusion that the breach was serious and significant is all the more apparent given the breach of the second unless order concerned the same issue - failure to serve witness statements. In addition, although the first unless order was complied with, it is relevant to note that the unless order only came about because of non-compliance with the tribunal’s directions which had included the service of witness statements.

(3)          The Unless Order also specifically required the appellant to serve a signed witness statement. As the FTT correctly took into account, that requirement in the unless order was not complied with. (The test in British Gas, which requires the tribunal to consider the failure to carry out the original obligation, does not mean that the tribunal should not consider failure to comply with the unless order as well (see [40])). That requirement for signature was important given the appellant’s past failures." (Lingajothy v. HMRC [2023] UKUT 63 (TCC), Judge Raghavan and Judge Greenbank)

Error must be material​

Direction based on a misunderstanding of a party’s position

“I have considered whether, in the circumstances, I should refuse to set aside the direction but I have concluded that I should set it aside because not only are HMRC entitled to know the reasons why the order was made but, more fundamentally, I had made the order based on a misunderstanding of HMRC’s position. It seems to me that a refusal to set aside the direction in such circumstances would not be consistent with the overriding objective of the UT Rules, as set out in rule 2(1), of applying those rules to enable the UT to deal with cases fairly and justly.” (Drummond v. HMRC [2016] UKUT 221 (TCC), §40, Judge Sinfield)

Direction based on a misunderstanding of a party’s position

Outside the reasonable range

 

Decision with consequences that Parliament cannot have intended

 

“A discretion may be impugned if the tribunal or court has not taken into consideration a factor which it should; alternatively, has taken into consideration a factor which it should not, or where the decision taken is one which the framers of the legislation, pursuant to which its decision has been taken, could not have intended the very consequence that the decision has had. That is a rather long way of stating that the decision was perverse or illogical.” (Maharani Restaurant v. CEC [1999] STC 295 at 299).
 

Outside the reasonable range

Principle against taking advantage of your own subsequent conduct

 

“If the order can be justified in terms of those factors which the tribunal should have considered, those factors which the tribunal ought not to have considered, and its decision overall was in accordance with the law and not irrational, then the mere fact that one party to that decision takes steps which are open to it, which leads to a prolongation of the proceedings cannot invalidate the order which is sought to be impugned by the statutory process of appeal.” (Maharani Restaurant v. CEC [1999] STC 295 at 299).
 

Principle against taking advantage of your own subsequent conduct

Incorrectly admitted evidence

 

Assess whether FTT could have reasonably made its findings without the documents

“In assessing for ourselves therefore the extent to which the FTT could reasonably have made its findings, we shall proceed on the basis that none of the supporting transaction enquiry reports were properly before the FTT.” (Eyedial Limited v. HMRC [2013] UKUT 432 (TCC), §44, Judges Berner and Hellier).

 

Or the test is whether the Court is quite satisfied that the error made no difference


"[21] This was a full and very carefully considered judgment. However, it would nonetheless be appropriate for an appellate court to interfere with it, if it could be shown that irrelevant material was taken into account, relevant material was ignored (unless the appellate court was quite satisfied that the error made no difference to the decision), there had been a failure to apply the right principles, or if the decision was one which no reasonable tribunal could have reached. Ms Simor has argued that there were a number of errors in the judgment, and also that the ultimate decision was outside the bounds of what a reasonable tribunal could have decided." (HMRC v. BPP Holdings Ltd [2017] UKSC 55, Lord Neuberger)

Incorrectly admitted evidence

Same duty to provide reasons applies to case management decisions 

“That is a judgment which, in our view, contains assertions rather than reasons and just as the principle upon which this appeal tribunal should operate in relation to appeals from interlocutory decisions is the same as the principle which we ought to apply in hearing appeals from final decisions, so it seems to us, the parties are entitled to be told why they have won or lost in an interlocutory decision as much as in a final one. True it is that in an interlocutory decision one would not seek for any great detail, but we do think that something rather more explicit is called for, especially where, as here, there has been a skilful and helpful argument adduced on a point that is both interesting and difficult.” (Independent Research Services Ltd v. Catterall [1993] ICR 1, Knox J).

But need not deal with every argument 

“there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties…the basis on which he has acted, and if it be that the judge has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, this court should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion.” (Eagil Trust Co Ltd v. Pigott-Brown [1985] 3 All ER 119, at 122, cited in Hague Plant Ltd v. Hague [2014] EWCA Civ 1609, §4, Briggs LJ).
 

Same duty to provide reasons applies to case management decisions 

Appeal against decision to vary previous direction (no broad margin of appreciation)

 

"[41] HMRC submit that this was essentially a case management decision, where a broad margin of appreciation should be afforded to the Judge’s decision. But this was not a case management decision of the kind to which that approach is adopted, where the judge has a broad discretion to exercise. As HMRC otherwise accept, the Judge’s discretion was “heavily curtailed” by the principle explained in Tibbles. The question of whether this was one of those rare cases not falling within established exceptions justifying re-arguing a case was a narrower exercise of judgment, against the particular background of the appeal to the Upper Tribunal and the pending appeal to the Court of Appeal." (Gardner Shaw UK Ltd v. HMRC [2018] UKUT 419 (TCC), Fancourt J and Judge Hellier)

Appeal against decision to vary previous direction (no broad margin of appreciation)

Even if error of law identified give weight to judge’s conclusion 

“Furthermore, even if the FTT did err in law, the Upper Tribunal should in my judgment still accord as much weight as it properly can to the FTT’s assessment [of whether to allow additional cross-examination]. They have been hearing the case for over five weeks, and they are the body charged by Parliament with its determination. Inevitably, the Decision, produced under great time pressure, cannot contain a complete record of all the factors which they took into consideration and how they balanced them.” (Ingenious Games LLP v. HMRC [2015] UKUT 105 (TCC), §68, Henderson J).
 

Even if error of law identified give weight to judge’s conclusion 

Appeals to be conducted with economy in mind 

“there is a real need to conduct appeals about case management decisions with economy and, wherever possible brevity.” (Hague Plant Ltd v. Hague [2014] EWCA Civ 1609, §3, Briggs LJ).
 

Appeals to be conducted with economy in mind 

Appellant may change direction sought on appeal as well as grounds (if procedurally fair) 

 “the Appellants have the right to appeal from the Decision if it is erroneous in point of law. That right is not removed merely because they have changed their mind about the relief which they wish to obtain.  Furthermore, there is a wider public interest in play (namely the interest of the general body of taxpayers that the tax system should operate correctly, in matters of both substance and procedure) which tells strongly in favour of allowing an appeal to proceed, if an error of law might thereby be correct. There is of course a separate question whether an appellant should be allowed to rely on grounds different from those which were argued below, but that is essentially a question of procedural fairness to be decided in accordance with the overriding objective.” (Ingenious Games LLP v. HMRC [2015] UKUT 105 (TCC), §61, Henderson J – Appellant changed from asking for an adjournment to deal with allegations of honesty to arguing the allegations should not be admitted as too late).
 

Appellant may change direction sought on appeal as well as grounds (if procedurally fair) 

Examples

Examples

- Decision to defer determination of interlocutory costs application reasonable

 

"[60] When the focus is placed on the decision that the FTT did make, we see no error of principle or approach. It was not obliged to decide costs there and then as we have concluded at [53] above. It decided to defer the consideration of the costs issue to enable Worldpay to make good its submission that none of the material that had recently been disclosed had any bearing on HMRC’s newly pleaded case. That, in our judgment, was an entirely appropriate exercise of discretion and indeed very similar to the exercise of discretion which the Court of Appeal, at paragraph [60] of Crown Bidco, indicated could be appropriate." (Worldpay UK Limited v. HMRC [2020] UKUT 290 (TCC), Judge Richards and Judge Cannan) 

- Decision to defer determination of interlocutory costs application reasonable

- No error in refusing admit late new ground of appeal and evidence

 

"[186] We are satisfied that there was no error of law in the FTT’s case management decision and it was not close to being plainly wrong.  It performed a multifactorial assessment taking into account: the lateness of the application; the reason for this, the reliability of the material to be presented; the practical consequences of it needing to be tested and HMRC filing evidence in reply; the prejudice to HMRC in admitting the material; and the overriding objective - whether it was just and fair to both parties to admit the evidence and consider the appeal ground.  It gave more than sufficient reasons in its decision at [275]-[284] as set out above." (Caerdav Ltd v. HMRC [2023] UKUT 179 (TCC), Rajah J and Judge Ruper Jones)

- No error in refusing admit late new ground of appeal and evidence
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