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M17: Bundles

Power to require production of a bundle

“(3)…the Tribunal may by direction –
(i) require a party to produce a bundle for a hearing;” (FTT Rules, r.5(3)(i)).

Power to require production of a bundle

Person who bears the burden of proof normally produces the bundle

 

“Finally, the Appellant asked that I direct that HMRC should prepare the appeal bundles given the inexperience of the Appellant’s representative in these matters.  Again, however, I see no reason to depart from the usual practice in this tribunal.  The Appellant was represented at this case management hearing by learned counsel whom I am sure has a wealth of experience on which the Appellant’s representative can draw if he requires any guidance in these matters.” (Hull City AFC (Tigers Ltd) v. HMRC [2017] UKFTT 629 (TC), §193, Judge Gammie QC).
 

Person who bears the burden of proof normally produces the bundle

No cost sharing direction outside of the complex case costs regime

 

"[16]  The second, and main, argument advanced on behalf of Eclipse is that it is inherent in rule 5(3) that the orders that the FTT makes thereunder can include terms as to costs. For instance, it is said that it would be unrealistic to suggest that the FTT might grant permission to one party to amend its case under rule 5(3)(c) or to have an adjournment under rule 5(3)(h), without being able to do so on terms as to costs which compensate the other party for any prejudice suffered as a result. Despite its initial attraction, I do not find that argument convincing, for a number of reasons." (Eclipse Film Partners No.35 LLP v. HMRC [2016] UKSC 24).

“The effect of rule 10 of the FTT rules is that the FTT cannot direct that one party shares the costs of another party in complying with a case management direction except in Complex cases where the taxpayer has not opted out, where a party or their representative has acted unreasonably, or a wasted costs order is appropriate.  That was the conclusion reached by the Upper Tribunal in HMRC v Eclipse Film Partners No 35 LLP [2013] UKUT 141 (TCC), which has recently been upheld by the Court of Appeal [2014] EWCA Civ 184.  Accordingly and as anticipated by Mr Warner, I refuse to make any direction as to the sharing of costs because the Tribunal has no power to do so.  Even if I had the power to make such an order, it appears to me that the application is made rather late in the day and it would not be appropriate to direct costs sharing where the appellant is professionally represented and, presumably, able to bear the costs of such representation.” (London Cellular Communications Ltd v. HMRC [2014] UKFTT 272 (TC), §27).
 

No cost sharing direction outside of the complex case costs regime

Tribunal can achieve similar result by directing the parties to jointly produce the bundles

 

“[24] …the fact that things could have been arranged so as to achieve the same result as the Order is irrelevant to the outcome of this appeal. As Moses LJ pointed out in para 22 of his judgment, the FTT could have ordered both parties to prepare the Bundles jointly, in which case there would have been a powerful argument for saying that Eclipse could have recovered the £108,395.48 which they now claim, simply on the basis of a contribution between two jointly liable parties. But that is not what happened here: Eclipse were liable for the preparation of the Bundles, and it is not sensibly possible to characterise the Order as having any effect other than requiring the Revenue to pay some of Eclipse’s costs, an order which was precluded by rule 10(1).” (Eclipse Film Partners No.35 LLP v. HMRC [2016] UKSC 24).

 

“In those circumstances it seems to us that HMRC are entitled to recover the costs of preparing the bundles on the basis of the FTT’s Direction which gave the parties joint responsibility to prepare the bundles. However, should it be necessary to determine the issue we have concluded that the Appellant’s behaviour in respect of the issue of costs of preparing the bundles was unreasonable and an order for costs reflecting a 50% contribution is appropriate.” (Leeds Smith Consulting Ltd v. HMRC [2016] UKFTT 449 (TC), §189).
 

Tribunal can achieve similar result by directing the parties to jointly produce the bundles

Authorities bundle

 

Criticism of excessive authorities

"[44] Before leaving the case, I feel bound to say something about the volume of authorities presented in the court bundles. UKSC Practice Direction 6 deals with the form and content of such volumes (paras 6.5.2ff)...

[45] In this case the court was presented with eight bundles, including more than 90 cases, reproduced in full, together with 20 other items of statutory material, guidance and textbook extracts (extending in total to some 2,700 pages). The intervention of the Secretary of State was accompanied by two additional bundles, extending to more than 1,000 pages, and including 13 further authorities. The most relevant cases were helpfully, and correctly (PD6 para 6.5.2), brought together in the appellant’s volumes 1 and 2. Of the remainder the vast majority were not referred to in oral argument, and were unlikely on any view to be more than peripheral to the determination of the issues on which permission had been given.

[46] I take as an example volume 4 headed “Precedent - whether to depart from previous/follow Europe (or not)”. This volume included no less than seven House of Lords or Supreme Court authorities, totalling almost 350 pages. The volume was not opened during the hearing. The propositions which the cases were apparently intended to support were familiar, uncontentious, and adequately summarised with appropriate citations, in the printed cases. Similarly, the subjects covered by volume 6 (“absence of proper reasons” and “standard of scrutiny”) can be taken as sufficiently familiar to the court not to require extensive citation; still less the inclusion in the bundle of the whole of the Wednesbury case [1948] 1 KB 223 (12 pages), Edwards v Bairstow [1956] AC 14 (26 pages) and Kennedy v Charity Commission [2015] AC 455 (107 pages).

[47]  It is essential that those involved in the preparation of these bundles, whether as counsel or solicitors, take full responsibility for keeping their contents within reasonable bounds and exercise restraint. The warning against proliferation of authorities is intended for the protection not just of the court, but more for the parties on whom the costs will ultimately fall. In many cases (as I assume in this case) they will be borne in one way or another from public sources." Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36)

Authorities bundle
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