M14: Case management and applications
FTT’s general case management power
“(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.” (FTT Rules, r.5(1) – (2)).
Not an unlimited power
“Although the Tribunal does not have the inherent powers of the High Court or the higher appeal courts, Rule 5(1) nevertheless allows it to regulate its own procedure. Given that the courts, with their inherent powers, are subject to certain limitations, the same must be true of the Tribunal.” (Paya Ltd and Tim Wilcox Ltd v. HMRC  UKFTT 660 (TC), §79).
Cannot be used as basis for inquisitorial jurisdiction
“Based on the above analysis, I find that the Tax Chamber has an adversarial jurisdiction. As a result, it is not possible to use Rule 5(1) as a gateway to allow a non-party to provide witness evidence.” (Paya Ltd and Tim Wilcox Ltd v. HMRC  UKFTT 660 (TC), §132).
Abuse of process
" It was also common ground in this case that in appropriate cases the FTT does 15 have jurisdiction to provide protection against abuse of its processes by use of its case management powers. In an appropriate case, applying the overriding objective of Rule 2 (2) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the “Rules”) to deal with cases fairly and justly, the FTT can exercise its case management powers under Rule 5 of the Rules to prevent an abuse of process by 20 directing a stay of proceedings. As Mr Burton submitted, the FTT will be entitled to make such a case management decision when it is “just, fair and proportionate” to do so: see on this point Atlantic Electronics Limited v HMRC  EWCA Civ 651 at  and  per Ryder LJ.
 However, the jurisdiction of the FTT is limited to situations where the events 25 complained of have implications for a fair hearing of a tax appeal. In those circumstances, the FTT can use whatever powers it has to ensure so far as possible that the procedures adopted for the hearing of the tax appeal are fair..." (Hackett v. HMRC  UKUT 212 (TCC), Trower J and Judge Herrington)
FTT does not have jurisdiction over pre-Tribunal decisions and conduct
" At  [of Always Sheet Metal Limited and others v HMRC  UKFTT 0198 (TC)] the FTT confirmed that it had case management powers to regulate the conduct of litigation before it. However, it declined to exercise its case management powers in this case. Its reasoning was as follows: “[Counsel for the taxpayer] is not making any complaint as to how HMRC have conducted the litigation from the point at which the appellants notified their appeals to the Tribunal. He is, therefore asking the Tribunal to punish HMRC for what the appellants considered to be unacceptable delay before Tribunal proceedings were commenced. I do not consider that would be a proper exercise of case management powers… [Foulser] dealt with a situation where HMRC were argued to have taken certain prejudicial actions while proceedings before the Tribunal were current…”
 Although the FTT did not say so explicitly, in our view the decision of the FTT not to exercise its powers in that case could also be justified on the basis that the complaint against HMRC in effect amounted to a complaint as to how it had exercised its investigatory and decision-making powers, in other words an allegation that HMRC had abused its power to make an assessment, a matter which fell outside the scope of the jurisdiction of the FTT and which had to be addressed through judicial review proceedings." (Hackett v. HMRC  UKUT 212 (TCC), Trower J and Judge Herrington)
No abuse of process to proceed by way of civil penalties rather than criminal charges
" None of [the taxpayer's] submissions persuade us that the abuse of process argument run by Mr Hackett directly affects the fairness of the hearing before the FTT. However skilfully [the taxpayer] sought to frame his arguments otherwise, his submissions in essence amount to a contention that HMRC acted unlawfully in exercising its discretion to bring civil penalty proceedings in this case. That contention falls squarely within the second category of case identified by Morgan J in Foulser. As was the position in Always Sheet Metal, the matters complained of in this case occurred before the proceedings were instituted in the FTT and do not relate to any alleged abuse of the FTT’s own proceedings." (Hackett v. HMRC  UKUT 212 (TCC), Trower J and Judge Herrington)
Power to hold a hearing
“(3)…the Tribunal may by direction –
(f) hold a hearing to consider any matter, including a case management hearing;” (FTT Rules, r.5(3)(f)).
FTT’s power to give directions on its own initiative
“(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.” (FTT Rules, r.6(1)).
Notice of directions to be given
“(4) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction.” (r.6(4)).
“(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.
(2) An application for a direction may be made--
(a) by sending or delivering a written application to the Tribunal; or
(b) orally during the course of a hearing.
(3) An application for a direction must include the reasons for making that application.” (FTT Rules, r.6(1) - (3)).
Applications should be made promptly
“…HMRC should ensure it makes its applications more promptly and a second failure to do so in this litigation may lead to an unless order.” (Unicorn Shipping Ltd v. HMRC  UKFTT 464 (TC), §14, Judge Mosedale).
No obligation to search for additional relevant points outside of submissions
" 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).
 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.
 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.
 [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.
 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  UKUT 63 (TCC), Judge Raghavan and Judge Greenbank)
Standing of non-parties to make application
“I record for completeness that neither HMRC nor the Appellants applied to the Tribunal for the BBC Application to be struck out on the basis that the BBC had no standing to make such an application. Instead, it was common ground that the BBC had an interest in the appeals, see §208ff. Issues of standing were therefore not considered.” (Paya Ltd and Tim Wilcox Ltd v. HMRC  UKFTT 660 (TC), §17).
Certain rules also expressly contemplate applications by non-parties (r.6(5), r.9(3) and r.16(1)(b)).
Burden of proof on the person making the application
“this is the hearing of an objection to an ex parte order [summonsing a witness]; the applicant had the burden of establishing the grounds of his application and nothing changes that position now that there is an objection to it: the applicant for the order must justify it.” (Clavis Liberty Fund 1 LP  UKFTT 1077 (TC), §71).
Ex parte applications
Golden rule of full and frank disclosure
“...Those authorities in this court bring their reminder of the essential principles:
 that there is a gold rule that an applicant for relief without notice must disclose to the court all matters relevant to the exercise of the Court’s discretion;
 that failure to observe this rule entitles the court to discharge the order obtained even if the circumstances would otherwise justify the grant of such relief;
 that a due sense of proportion must be maintained between the desiderata of marking the court’s displeasure at the non-disclosure and doing justice between litigants;
 that for these purposes the degree of any culpability on the part of the applicant or of any prejudice on the part of the respondent are relevant to the reviewing court’s discretion; and
 that a balance must be maintained between undermining ‘the heavy duty of candour and care’ which falls on applicants and promoting ‘[a port in a storm]’ to save respondents who lack substantial merits.” (Knauf UK GmbH v. British Gymsum Ltd  EWCA Civ 1570, Henry LJ, paragraphing added).
“In any case where the court or the tribunal is asked to exercise a discretion in the absence of a person who is likely to be affected and who has no notice of the hearing, in the sense of notice sufficient to enable him to attend, the applicant should inform the court of material matters which could sensibly be seen as affecting how the discretion should be exercised. I do not suggest that the duty is as extensive in the case of the issue of a witness summons by the tribunal as it is in the case of interim, without notice, injunctive relief in an action.” (Clavis Liberty Fund LP1 v. HMRC  UKUT 72 (TCC) §47, Warren J)
“The question is whether objectively there was full and frank disclosure; if there was not, but the appellant genuinely thought that there was, it might affect the sanction.” (Clavis Liberty Fund 1 LP  UKFTT 1077 (TC), §76).
“An applicant in this tribunal in a without notice hearing who fails to give full and frank disclosure to the Tribunal must expect that there is a real risk that any order obtained by that means will be discharged; that sanction is necessary to prevent a failure of justice.” (Clavis Liberty Fund 1 LP  UKFTT 1077 (TC), §88).
Setting aside the direction/order not an automatic consequence
“the mere fact of non-disclosure does not automatically lead to the setting aside of whatever application was allowed in the without notice proceedings. The Tribunal must consider all relevant factors. In this case the relevant factors include: (a) Whether full and frank disclosure would have made a difference to the outcome of the hearing on 2 October; (b) To what extent the appellant is prejudiced if the summons are rescinded.” (Clavis Liberty Fund 1 LP  UKFTT 1077 (TC), §78).
Misleading the Tribunal is sufficient to justify setting aside direction
“In the present case, the Judge was of the view that she was misled by the assertion made on behalf of CLF that Mr Young and Mr Machon had refused to give evidence when it was quite clear that they had not…had she known of the true state of affairs concerning the willingness or otherwise of Mr Young and Mr Machon to give evidence, she would not have issued the witness summons…This conduct on the part of CLF is another reason, sufficient in itself but in combination with my previous reasons compelling, for refusing to adopt a procedure which allows the witness summonses to stand…” (Clavis Liberty Fund LP1 v. HMRC  UKUT 72 (TCC) §§48 – 49, Warren J)
Referring an application to the Upper Tribunal
"(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act (Upper Tribunal to have powers of High Court or Court of Session) in relation to, any failure by a person to comply with a requirement imposed by the Tribunal--
(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness;
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises)." (FTT Rules, r.7(3))
Upper Tribunal’s powers same as High Court’s for certain purposes
“(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal
has…the same powers, rights, privileges and authority as the High Court, and…
(2) The matters are –
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal’s functions.” (TCEA 2007, s.25).
Only purpose of FTT Rule 7 is for the purposes of sanctions
“the purpose of such a referral would be to sanction the failure; it should not be used as a back-door route to request the Upper Tribunal to issue Letters of Request when the Rules clearly do not envisage the Upper Tribunal being able to issue Letters of Request in any FTT case.” (Clavis Liberty Fund 1 LP  UKFTT 1077 (TC), §45).
Decision on application
Tribunal may decide an application and give reasons later
“In my view it was correct in the circumstances for the judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over, so adding to the cost.” (Watts v. Watts [2015 EWCA Civ 1297, §27)
Renewing an application
Error of law, material change of circumstances or some other compelling reason
“It is obvious that a change of circumstances in relation to an interlocutory order should require it to be revisited. Indeed, the FTT’s own rules, as interpreted in a number of cases, make provision for this in permitting a direction to be set aside if there is a change of circumstances.” (Clear plc v. HMRC  UKUT 347 (TCC), §48, Judges Herrington and Aleksander)
“Even if it might be argued that Judge Mosedale’s decision is not res judicata in the sense that the Tribunal now lacks any legal power to reopen that decision, we find that the Tribunal would not and should not do so unless there has been some compelling further development or some other compelling reason why the Tribunal should do so.” (Aleena Electronics Ltd v. HMRC  UKFTT 0061 (TC), Annex 1, §5).
“The Appellant does not found on any error of law or procedural irregularity. Nor does he found on any material change of circumstances since the Direction was issued in January 2014. There are no over-arching circumstances which suggest, far less establish, that it is in the interests of justice to set aside the Direction and allow the Grounds of Appeal to be amended as proposed.” (Pattullo v. HMRC  UKFTT 841 (TC)).
See further: Applying for a different direction, below.
Challenging a direction
Where the Tribunal refuses to issue a direction, the applicant will have to either renew his application for the direction (see above) or appeal the decision to refuse the direction.
Where the Tribunal issues a direction, any party may challenge the direction by:
Applying for it to be set aside (see P6: Setting decisions aside)
Applying for a different direction (see below).
Appealing the decision to give the direction (see P4: Applying for permission to appeal)
Cannot appeal based on change of circumstances
“However this is entirely different to making a change of circumstance the foundation for a right of appeal in circumstances where section 11 of the Tribunals, Courts and Enforcement Act 2007 (the “ Act”) makes it clear that an appeal only lies to this Tribunal on a point of law.” (Clear plc v. HMRC  UKUT 347 (TCC), §49, Judges Herrington and Aleksander).
Suspending the effect of a direction pending appeal
“(3)…the Tribunal may by direction –
(l) suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal, as the case may be, of an application for permission to appeal, a review or an appeal.” (FTT Rules, r.5(3)(l)).
Applying for a different direction (limited circumstances)
“(5) If a party or other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.” (FTT Rules, r.6(5)).
" However, even if that were not right, it appears to me that, as a matter of ordinary principle, when a court has made an interlocutory order, it is not normally open to a party subsequently to ask for relief which effectively requires that order to be varied or rescinded, save if there has been a material change in circumstances since the order was made. As was observed by Buckley LJ in Chanel Ltd v FW Woolworth & Co Ltd  1 WLR 485, 492-493:
"Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter." (Thevarajah v Riordan  UKSC 78)
" ...[The Upper Tribunal in Gardner Shaw] concluded that the fact that Judge Mosedale was persuaded that there was a more appropriate and better approach to disclosure, contrary to Hare Wines UT, was not capable of being a reason why exceptionally the FTT should revisit and change its earlier direction. The fact that there had been an appeal to the Upper Tribunal was a strong reason not to revisit the global disclosure direction because "[t]he interests of justice include upholding the finality of court and tribunal decisions and not undermining the appeal process": see . There had been no change of circumstances and a re-hearing could not be justified on the basis that a party had belatedly put in better evidence to support its case. Approaching the matter on the basis of Tibbles, the Upper Tribunal concluded that there was no basis on which a judge could reasonably conclude that this was a rare instance of the unidentified, residual cases where it was appropriate for the FTT itself to vary the terms of the direction previously issued: .
 I agree with that reasoning and have also concluded that the FTT was wrong to vary the global disclosure direction in the circumstances presented to the judge. I reach that conclusion although I recognise that I have concluded that the disclosure in AWRS appeals should be less extensive than the disclosure covered by Judge Mosedale's reformulation of the direction. The point in this appeal was whether the case was one in which it was appropriate for the FTT to vary its own previous direction rather than to maintain the position where that very issue had been determined by the Upper Tribunal and was being considered by this court. The appeal against Gardner Shaw UT should therefore be dismissed." (Smart Price Midlands Limited v. HMRC  EWCA Civ 841, Rose LJ)
"[39(vii)]...Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation." (Tibbles v. SIG plc  EWCA Civ 518, Rix LJ)
" Thus, where there is no material change of circumstances and no prior misleading of the court, it will be a rare case and something unusual that could lead to
the important considerations of finality and the proper use of the appeals procedure being displaced in favour of revisiting and varying or revoking an interlocutory order.
...The exercise of the power is not a broad discretionary matter but is significantly more circumscribed than that, as HMRC accepts. While the Court of Appeal was unwilling to close the list of circumstances in which it might be appropriate to allow a second bite of the cherry, such rare cases would, by definition, be ones that had not previously arisen in reported cases under the rule. They would also have to be ones in which the circumstances suggesting that a variation was just outweighed the interests of justice represented by the finality of decisions and the upholding of a proper system of appeals." (Gardner Shaw UK Ltd v. HMRC  UKUT 419 (TCC), Fancourt J and Judge Hellier)
“ “In conclusion, in my view, Parliament only intended rule 6(5) to be used in limited circumstances, and in particular where:
• Circumstances have changed;
• Obvious error of law in direction;
• Procedural irregularity in relation to the hearing at which direction made; or
• A party did not appear and was not represented at the directions hearing.
A judge would of course only grant the set-aside where it was in the interests of justice to do so…” I accept this reasoning.” (Clear Plc v. Director of Border Revenue PTA/88/2011, §45 Judge Herrington quoting and accepting Judge Mosedale in DDR Distributions Limited v HMRC  UKFTT 443 (TC), §22).
Change of circumstances
“I am entitled to make a different direction to the one given in February 2017 where there has been a change in circumstances: DDR  UKFTT 443 (TC) at .” (Jones v. HMRC  UKFTT 567 (TC), §33, Judge Mosedale)
Evidence that could have been deployed but was not deployed is not a change of circumstances
"...the new material on the basis of which HMRC sought to advance its argument was not a change of circumstances but simply evidence that HMRC had not deployed previously. A desire to rely on material not previously deployed (but which could have been deployed) cannot amount to circumstances out of the ordinary such as to justify a variation of the directions previously given. Nor in any event is the evidence that was belatedly deployed of such a remarkable character as to justify in itself varying the directions." (Gardner Shaw UK Ltd v. HMRC  UKUT 419 (TCC), Fancourt J and Judge Hellier)
Belated compliance with unless order is not a material change of circumstances
" The first reason is that, where a party is subject to a debarring order for failing to comply with an "unless" order to do something within a specified period and relief from sanctions is refused at a time when he is still in default, the mere fact that he then complies with the "unless" order (albeit late) cannot amount to a material change of circumstances entitling him to make a second application for relief from sanctions. By refusing the party's first application for relief from sanctions, the court would have effectively been saying that it was now too late for that party to comply with the "unless" order and obtain relief from sanctions. So, if the court on a second application for relief from sanctions granted the relief sought simply because the "unless" order had been complied with late, its reasoning would ex hypothesi be inconsistent with the reasoning of the court which heard and determined the first application for relief." (Thevarajah v Riordan  UKSC 78)
Unless there is an explanation for the belated compliance
" Of course, that does not mean that late compliance, subsequent to a first unsuccessful application for relief from sanctions, cannot give rise to a successful second application for relief from sanctions. If, say, the "unless" order required a person or company to pay a sum of money, and the court subsequently refused relief from sanctions when the money remained unpaid, the payment of the money thereafter might be capable of constituting a material change of circumstances, provided that it was accompanied by other facts. For instance, if the late payment was explained by the individual having inherited a sum of money subsequent to the hearing of the first application which enabled him to pay; or if the company had gone into liquidation since the hearing of the first application and, unlike the directors, the liquidator was now able to raise money. These are merely possible examples, and I am far from saying that such events would always constitute a material change of circumstances, or, even if they did, that they would justify a second application for relief from sanctions." (Thevarajah v Riordan  UKSC 78)
Obvious error of law
“The other possibility is that the Tribunal in February 2016 did not address the question of jurisdiction and mistakenly thought that a bankrupt had standing to bring the appeal even without the Trustees’ consent to him acting as their representative. If the Tribunal made its decision on that basis, then that Tribunal was patently in error of law. In such circumstances, I am entitled to set aside and re-make their decision…” (Jones v. HMRC  UKFTT 567 (TC), §34, Judge Mosedale)
Standard direction issued without the parties' representations
"... [Judge Mosedale] had already found that this was not a case of a first application made by a party to proceedings to challenge a ‘standard’ direction issued without the parties’ representations. Had it been such a case then, in exercising an original case management discretion, it would have been appropriate for her to consider how most appropriately to strike the balance between the interests of each of the parties in terms of disclosure, in accordance with the overriding objective." (Gardner Shaw UK Ltd v. HMRC  UKUT 419 (TCC), Fancourt J and Judge Hellier)
Other circumstances would be exceptional
“The above may not be an exclusive list of all the circumstances in which Rule 6(5) may be used: there may be some additional circumstances in which Rule 6(5) would be appropriate, but such circumstances would be exceptional and would not include an application on the grounds simply that a party considers the original direction was wrong…” I accept this reasoning.” (Clear Plc v. Director of Border Revenue PTA/88/2011, §45 Judge Herrington quoting and accepting Judge Mosedale in DDR Distributions Limited v HMRC  UKFTT 443 (TC), §23).
Better evidence not sufficient
" HMRC contended that, in view of the evidence of Mr McGee, the subject35 matter of the decision that Judge Mosedale had to make proceeded on a different factual footing from the subject-matter of the appeals to the Upper Tribunal and the Court of Appeal. We do not agree that this is a legitimate distinction. The disclosure issues were the same; only the evidence before the court was different. Judge Mosedale had rejected the argument that there was any material change of circumstances. In the absence of any such change, a re-hearing cannot be justified on the basis that a party has belatedly put in better evidence to support its case.
...HMRC’s belated realisation of the cost involved does not amount to something out of the ordinary that would justify re-visiting the directions made. " (Gardner Shaw UK Ltd v. HMRC  UKUT 419 (TCC), Fancourt J and Judge Hellier)
Possibly on matters going to jurisdiction
“Indeed, I am compelled to [make a different direction] as the tribunal cannot entertain an appeal where it has no jurisdiction (Rule 8(2)(a)) and even if the decision of the Tribunal in February 2016 was that it had jurisdiction, the Tribunal clearly does not have jurisdiction now.” (Jones v. HMRC  UKFTT 567 (TC), §33, Judge Mosedale)
Not to be used simply where a party considers a direction wrong
“To avoid an anomalous and absurd result Parliament cannot have intended rule 6(5) to apply simply where a party considers that a direction is wrong: the only proper course of action in such a case would be for the party to apply to appeal it…” I accept this reasoning.” (Clear Plc v. Director of Border Revenue PTA/88/2011, §45 Judge Herrington quoting and accepting Judge Mosedale in DDR Distributions Limited v HMRC  UKFTT 443 (TC), §23).
Not an opportunity for Tribunal to simply change its mind
" A provisional conclusion that, on reflection, there might be a better way in which to balance the parties’ competing interests while doing justice and speeding up the proceedings could not possibly be the rare, unidentified circumstances in which the court should allow a party to have a second bite at the cherry in that way. If it were, litigants would be entitled to try their luck with a different judge in relation to any case management decision, rather than appeal the decision if it was wrong in law because the first judge had exceeded the broad ambit of discretion afforded to judges
making case management decisions.
 We have already indicated that we do not agree that the fact that Judge Mosedale was persuaded that there was a more appropriate and better approach to disclosure (contrary to the decision of the Upper Tribunal) was capable of being a reason why, exceptionally, the FTT should revisit and change its earlier direction on disclosure. The appropriateness of Judge Sinfield’s disclosure direction had already been reviewed by the Upper Tribunal and upheld, and was subject to a pending appeal to the Court of Appeal. The fact that there had been an appeal to the Upper Tribunal
was, on the contrary, a strong reason why the disclosure direction should not be revisited by the FTT. The interests of justice include upholding the finality of court and tribunal decisions and not undermining the appeal process. " (Gardner Shaw UK Ltd v. HMRC  UKUT 419 (TCC), Fancourt J and Judge Hellier)
“I note that the White Book (Civil Procedure in the High Court) states, in respect of the High Court’s power to “vary or revoke” any earlier order, that this does not include a power to reverse itself simply because it had changed its mind. On the contrary, either an erroneous basis would have to be shown for the original order or a change in circumstances. See Section A 3.1.9. The court cannot act as an appellate court from its own orders. I consider that a similar state of affairs exists in this Tribunal…” I accept this reasoning.” (Clear Plc v. Director of Border Revenue PTA/88/2011, §45 Judge Herrington quoting and accepting Judge Mosedale in DDR Distributions Limited v HMRC  UKFTT 443 (TC), §21).
Narrow margin of appreciation on appeal
Delay in applying will count against applicant
" The Court of Appeal also considered that the appellants should have been in difficulties on the second relief application because of the delay. Given that they made that application eight weeks after Hildyard J made his order and one day before the trial was due to begin, without any satisfactory explanation for the delay or last minute nature of the application (except for a change of solicitors), I see considerable force in that view." (Thevarajah v Riordan  UKSC 78)
Direction obtained following correspondence that did not make its full effect apparent
" It is my decision that these circumstances fall within those set out in Tibbles and thus justify my exercise of discretion in favour of setting aside Direction 1. HMRC appear to have been misled, by omission, that the grounds of appeal would be amended to include only matters dealing with quantum and the application of the dispensation. Ground (1) was not mentioned in correspondence, and, frankly, HMRC were ambushed by its inclusion in the amended grounds of appeal on 24 January 2022. This is not an appropriate way to conduct litigation. This is a material misstatement in the context of agreeing directions, one of which relates to amending grounds of appeal. I am not prepared to go so far as to say that this was a conscious misstatement, as Mr Tolley has suggested, but the fact of the misstatement in the context of seeking to agree directions where, as most representatives know, the FTT will not subject those directions to the same forensic analysis which would be applied at a formal hearing, is material to the exercise of my discretion. The FTT has not subjected ground (1) to any form of judicial scrutiny. It has simply waved it through. In my view it is done so on the basis that it assumed that the amended grounds of appeal had been agreed by HMRC. This was an incorrect assumption. But it means that by setting aside this application I am not giving HMRC a second bite at the cherry. The FTT has never considered the merits of the inclusion of ground (1). By setting aside Direction 1 and directing the appellant to make a formal application (if it so wishes) to amend its grounds of appeal by the inclusion of ground (1), all that is happening is that there will be judicial consideration (on the basis that HMRC have already said that they would oppose such an application) of the merits of the inclusion of ground (1), for the first time.
 HMRC have acted commendably promptly in bringing the set aside application, and I do not see that the appellants will be prejudiced by me allowing it. They have known since February 2022 that HMRC do not accept that ground (1) should be allowed. I do not believe that they have proceeded with the preparation of their case on the basis that ground (1) is accepted and forms the revised basis of its appeal. Miss Murray made no submission that the appellant would be so prejudiced." (Mypay Limited v. HMRC  UKFTT 371 (TC), Judge Popplewell)
Liberty to apply
"...The revisiting of orders is commonplace where the judge includes a “Liberty to apply” in his order. That is no doubt an express recognition of the possible need to revisit an order in an ongoing situation: but the question may be raised whether it is indispensable." (Mypay Limited v. HMRC  UKFTT 371 (TC), Judge Popplewell)
Staying effect of direction pending appeal
" A short term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal. Applications for stays of the latter kind will be considered in accordance with the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd.  EWCA Civ 2065. By contrast, a short term stay is a purely practical remedy, distinct from the decision about permission to appeal. The correct approach for the court to take to an application of this kind was described by Wilson LJ in Re A  EWCA 899 at , where he confirmed that the judge should always give serious consideration to allowing an applicant "a narrow opportunity" to approach this court so that the opportunity for a successful appeal is not unfairly eroded..." (Re N  EWCA Civ 1070, Jackson LJ)
Reconsideration of a direction issued by tribunal staff
Right to reconsideration by a Judge
“(1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done by the Tribunal.
(2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.
(3) Within 14 days after the date that the Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may make a written application to the Tribunal requiring that decision to be considered afresh by a judge.” (FTT Rules, r.4(1) - (3))
Judge to remake decision rather than review
" I consider that Rule 4(3) requires me to remake the Decision, rather than only considering the reasonableness of the Decision." (Midgley v. HMRC  UKFTT 115 (TC), Judge Kempster - relating to a staff direction to add detail to statement of case)
Applications may be made subject to conditions (e.g. paying costs)
" Thirdly, rejecting Eclipse’s case does not mean that the FTT cannot give permission to amend, or grant an adjournment, on terms as to costs. If, for instance, a party wishes to amend its case or be granted an adjournment, there is nothing in the Rules which would prevent the FTT from deciding that it will only give permission to amend, or grant the adjournment, on terms that that party pays the other party’s costs wasted or incurred as a result of the proposed amendment or adjournment. However, that is not what happened in this case." (Eclipse Film Partners No.35 LLP v. HMRC  UKSC 24).