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N18: Witness evidence

See also

 

M12: Witness evidence

See also

Proper function of a witness of fact

"[82]...Without attempting to lay down any exhaustive rules, it seems to me that in general the proper function of factual witnesses, even of those involved in a case in a professional capacity such as Officer Bradley, is to give evidence of facts relevant to the issues in the case of which they can speak from their own knowledge (including in appropriate circumstances evidence of hearsay statements). Save insofar as they are able to give relevant evidence of their own, it is not the proper function of a witness’s evidence to comment on documents, or on other witnesses’ evidence, or to speculate on other persons’ motives or intentions; far less is it the proper function of a witness’s evidence to raise points of law, or to argue a party’s case." (Mungavin v. HMRC [2020] UKUT 11 (TCC), Nugee J)

Proper function of a witness of fact

Tribunal will provide translator where necessary

 

"[31] If Mr Niec does not obtain legal representation, the Tribunal panel which is listed to hear Mr Niec’s appeal will apply the above principles to ensure he has a fair hearing.  In addition,  a professional interpreter fluent in the Polish language will be provided free of charge by HMCTS for the hearing of his appeal." (Niec v. HMRC [2023] UKFTT 415 (TC), Judge Redston)

Tribunal will provide translator where necessary​

Withdrawing a witness statement 

 

Witness statements are not in evidence until the witness is called

 

“…the normal method of conducting a trial with oral evidence means that it is not until after the plantiff’s evidence has been called and tested by cross-examination that the defendant has to decide finally whether to adduce evidence on his own behalf. Until then, he can keep his powder dry. This is still so under the modern practice whereby witness statements are served in advance of the trial…” (Re Rex Williams Leisure Plc (In Administration) [1994] 1 Ch 1, 7).

 

Once evidence is adduced it cannot be withdrawn

 

“I agree with Mr Teare that once evidence has been adduced, it cannot be withdrawn. The Court cannot pretend that the evidence has not been given. It would be unthinkable and unreal to permit a party to withdraw evidence which had been given by a live witness…On the other hand a party may and quite often does abandon reliance upon evidence which it has adduced, for example, where it has conclusively been shown to be unreliable.” (Tsavliris Russ (Worldwide Salvage & Towage) Ltd v RL Baron Shipping Co SA (The Green Opal) [2003] 1 Lloyd's Rep. 523 at 535).

 

Indication of intention to rely on a statement is not an irrevocable commitment/Tribunal should disregard

 

“In the end, Mr Chivers did not pursue the point and the parties agreed to proceed provided that the Harwanis' statements and exhibits were removed from the trial bundles, Mr Lakha's opening skeleton submissions were updated to remove all references to this evidence, and I take no account of such references in the hearing transcripts or my own notes. This approach seemed to me to be a sensible way of progressing and I am grateful to the parties for their co-operation in this regard. Frequently a judge in this Court is called upon to put evidence out of his or her mind. As Tomlinson J noted in The Green Opal at 535:

 

"…it would be most undesirable if the Court were too astute to construe an indication of intention to rely upon a statement as an irrevocable commitment to adduce or put that statement in evidence…a trial is…a dynamic process [which may] throw up unanticipated surprises."
Secondly, and on the same basis, the witness statements cannot be taken into account and my pre-reading of them must be disregarded: see CPR 32.5 (1).” (HMRC v. Sunico A/S [2013] EWHC 941 (Ch), §§20 – 21).

“In the particular context of hearsay statements, it would I think be most undesirable if the Court were too astute to construe an indication of intention to rely upon a statement as an irrevocable commitment to adduce or put that statement in evidence. A trial is, as Mr Russell reminded me, and as any experienced litigator well knows, a dynamic process. Many if not most trials throw up unanticipated surprises.” (Tsavliris Russ (Worldwide Salvage & Towage) Ltd v RL Baron Shipping Co SA (The Green Opal) [2003] 1 Lloyd's Rep. 523 at 535).

 

Other party may rely on withdrawn witness statement as hearsay

 

"If the statement is helpful to the opponent party, so far as it goes, that party is at liberty to rely upon it himself, and could no doubt do so after his own case, if taken by surprise by his opponent’s failure to adduce it in evidence contrary to a previously stated intention.” (Tsavliris Russ (Worldwide Salvage & Towage) Ltd v RL Baron Shipping Co SA (The Green Opal) [2003] 1 Lloyd's Rep. 523 at 535 - 6).

 

“We note that if we were not talking about a witness statement, but about a letter that the Appellant had written to HMRC at some point relevant to the matter, then even if the Appellant did not give evidence, HMRC would nonetheless be entitled to rely on that letter whether the Appellant objected or not. We do not see, in principle, that a witness statement is any different. It is a document signed by the Appellant in circumstances where the Appellant is aware of the duty to tell the truth, and in circumstances where the Appellant is aware that the document will be used in the Tribunal proceedings. If HMRC would still be entitled to rely on a letter from the Appellant, then we consider that HMRC should a fortiori continue to be able to rely 25 on a witness statement of the Appellant.” (Aleena Electronics Ltd v. HMRC [2015] UKFTT 0061 (TC), Annex 2, §2).

 

But if the other party wants to go further, they should call the maker of the witness statement as their witness

 

“If the opponent party, in reality, wishes to rely upon evidence which he believes the maker of the statement can give, over and above which is in the statement, he can approach him for a statement ahead of the trial and seek to introduce his evidence in the ordinary way.” (Tsavliris Russ (Worldwide Salvage & Towage) Ltd v RL Baron Shipping Co SA (The Green Opal) [2003] 1 Lloyd's Rep. 523 at 536).

 

Consequential objections to other evidence

 

“…as part of his investigation, Mr Marsden was provided with information about Sunico's business and financial performance by both the Harwanis; it was, therefore, hearsay evidence in the context of Mr Marsden's report. Following the Defendants' announcement that the Harwanis would not be giving evidence, Mr Chivers objected (both orally and in writing) that this meant HMRC would not have the opportunity to test that hearsay evidence in cross-examination of the Harwanis. This was something HMRC always envisaged that they would have the opportunity to do, which is why, he said, they did not object to the inclusion of hearsay in Mr Marsden's report when it was first served. It was understood that Mr Marsden's evidence would be helpful because it was for the most part the subject of direct evidence which was to be given by a primary witness of fact, Sunil. The parties eventually agreed that those passages in Mr Marsden's statement which depended upon information provided by the Harwanis should be redacted so that the matter would be dealt with in that way.” (HMRC v. Sunico A/S [2013] EWHC 941 (Ch), §22).
 

Withdrawing a witness statement 

Failure of a witness to attend

 

Tribunal entitled to disregard written evidence of witness who does not attend 

 

“the FTT at [9] stated that they had not been called by [the taxpayer] to give evidence and that therefore counsel for HMRC had no opportunity to cross-examine them. The FTT continued, ‘In all the circumstances of the case we afforded little weight to their written evidence.’ We do not consider that there can be any valid criticism of this approach.” (Reddrock Ltd v. HMRC [2014] UKUT 61 (TCC), §§14 – 15, David Richards J).

"[6] It was the appellant’s informed choice not to call Ms Matthews and, that being the case, I decided that they should not be admitted in evidence as that would be introducing them by the back door without the possibility of cross-examination." (Asset House Piccadilly Limited v. HMRC [2023] UKFTT 385 (TC), Judge Scott)

"The matters covered in these three documents were highly contentious, and it was plainly not in the interests of justice to ascribe any weight to them, given that the individuals had not attended the hearing to be cross-examined.  I set aside those documents and have not considered them in coming to this decision." (The Great British Takeaway v. HMRC [2022] UKFTT 315 (TC), Judge Redston)

"[35] Again as noted above, Mr Keddle provided a submission dated 11 June 2020, which contained a number of factual statements.  Mr Dean asked the Tribunal to ignore any statements for which there was no support in the documents provided, and he listed them.  He submitted that it had been the Appellant’s choice not to attend the hearing, so there was no witness who could be cross-examined on the matters of alleged fact set out in Mr Keddle’s witness statement, and against that background it was not interests of justice for the Tribunal to make factual findings on the bare assertion of the Appellant’s representative.

[36] In Reply, Mr Keddle did not take issue with Mr Dean’s submissions, either by identifying supporting documents, or by putting forward reasons why the Tribunal should rely on his hearsay evidence. 

[37] Rule 15(2)(a) of the Tribunal Rules allows us to “admit evidence whether or not the evidence would be admissible in a civil trial in the United Kingdom”, and we thus would be have been able, as a matter of law, to admit the hearsay evidence provided by Mr Keddle.  However, we agreed with Mr Dean that it was not in the interests of justice to admit that evidence, for the reasons he gave.  As a result, we have not taken it into account in making our findings of fact." (Paniec v. HMRC [2020] UKFTT 360 (TC), Judge Redston)

 

But not necessarily required to 

 

“In our view, the judge was entitled, if not required, to give less weight to Mr Panesar’s evidence when he declined to be cross-examined about it.” (Bramley Ferry Supplies Limited v. HMRC [2017] UKUT 214 (TCC), §13, Judge Bishopp and Judge Greenbank).

 

“We decided that excluding Mrs Stayton’s evidence would not be in the interests of justice, but pointed out to both parties that Mrs Stayton’s absence meant that her evidence could not be tested in cross-examination, so the weight to be placed on her statement was likely to be significantly reduced. We advised Mr Arthur that we would be looking for documentary confirmation, from the material in the Bundles, of the various assertions in the witness statement.” (Stayton v. HMRC [2016] UKFTT 345 (TC), §49).

 

“While I am cautious of putting too much weight on evidence in the form of affidavits in the absence of witness…” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §17, Mosedale J – note that the fact found in consequence (some visits to the UK) was the lowest common denominator with the other party (who said visits were frequent).

 

“We have found helpful and persuasive the letter from the Company’s former finance director…Mr Butlin was not called as a witness in person by the Appellant and thus HMRC did not have the opportunity to put questions to him (nor did the Tribunal) or challenge his evidence. We have borne that limitation in mind and have not adopted an uncritical attitude to Mr Butlin’s explanation. But the fact that the available or otherwise of ER to [the taxpayer] is of no financial concern to the Company does, we consider, make Mr Butlin an independent witness, and one whose explanation fully supports the evidence of [the taxpayer].” (Corbett v. HMRC [2014] UKFTT 298 (TC), §34).

 

Importance of opportunity to cross-examine

 

“Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination.” (Kiely v Minister for Social Welfare [1977] IR 267 at 281, Irish Supreme Court, quoted in Baylis v. HMRC [2016] UKFTT 725 (TC), §163, Judge Redston).

 

“while [Keily] is of course not binding on this Court…it provides a classic statement of why it may be unfair to refuse an opportunity for cross-examination to a person whose own evidence is subject to cross-examination.” (R (oao Bonhoeffer) v GMC [2011] EWHC 1585 (Admin), §68, Stadlen J)

 

“Although Rule 15(2)(a) of the Tribunal Rules gives this Tribunal a wide power to admit evidence, it is therefore right to take into account the fact that, in contrast to Ms Baylis, Mrs Forsyth could not be cross-examined.  The weight I can place on her letter is reduced in consequence.” (Baylis v. HMRC [2016] UKFTT 725 (TC), §165, Judge Redston).
 

Failure of a witness to attend

Witnesses whose evidence is not seriously disputed (should not be required to attend) 

 

“If there is a real challenge to HMRC's evidence it should be identified; if there is not, the evidence should be accepted. We see no reason why an appellant who does not advance a positive case should be entitled to require HMRC to produce witnesses for cross-examination when their evidence is not seriously disputed. Such a course is wasteful not only of HMRC's resources but also of the resources of the FTT, since it increases the length of hearings and adds to the delays experienced by other tribunal users.” (HMRC v. Fairford Group plc [2014] UKUT 329 (TCC), §48, Simon J and Judge Bishopp).

 

Evidence must be accepted by FTT despite no cross-examination

 

“…the very reason such evidence was given by witness statement alone, and was not subject to cross-examination, was because it had 15 been accepted by PCL as not in dispute, in accordance with the FTT’s earlier directions. We agree with [HMRC] that what the FTT was effectively saying at [40] was that unless PCL made an additional specific concession beyond simply indicating the witness evidence not in dispute, the FTT would not give any substantial weight to that evidence. That is an error of law, and a significant one in the context of 20 this case…It is abundantly clear that, where evidence is not in dispute, it must be accorded full weight.” (HMRC v. Pacific Computers Ltd [2016] UKUT 350 (TCC), §§22…24 , Mann J and Judge Berner).

 

Distinction between relevance and weight

 

“But in any event it is clear from the FTT’s reference to the need for corroboration or agreement that what it was referring to could not be relevance; corroboration or agreement could not render relevant something that was otherwise irrelevant. The FTT cannot be thought not to have understood the difference between relevance and weight…” (HMRC v. Pacific Computers Ltd [2016] UKUT 350 (TCC), §23, Mann J and Judge Berner).
 

Witnesses whose evidence is not seriously disputed (should not be required to attend) 

Oral evidence after submitting no witness statement unfair

 

“the purpose of witness statements is for each party to be aware of the evidence on which the other party relies, in good time before the hearing.  This allows them to prepare properly for the hearing, including identifying any areas of cross-examination.  If we were now to allow Mr Stayton to give oral evidence without a witness statement, HMRC would be unfairly disadvantaged;” (Stayton v. HMRC [2016] UKFTT 345 (TC), §42(3)).

 

“it would be unfair to HMRC if [the taxpayer] gave oral evidence without any previous witness statement having been filed and served. The purpose of witness statements is to allow both parties to understand the evidence and to prepare properly for the hearing.  HMRC had specifically requested, and been granted, sequential directions so that they would not be surprised by new evidence at the hearing.  Rule 2 requires that the Tribunal avoid only unnecessary formality.  The advance provision of witness statements was not unnecessary; that is why they had been directed.” (Green v. HMRC [2015] UKFTT 236 (TC), §24 – “with some difficulty” the Tribunal did not permit oral evidence).
 

Oral evidence after submitting no witness statement unfair

Supplemental questions in chief not to concern entirely new issues for that witness

 

"[114] Asking Mr Morgan about the reasons why there was a gap between July 2016 (when the till rolls and other information supporting the VAT returns was provided to HMRC), and the issuance of the assessment over a year later, was not a “supplemental question”. It was an entirely new area on which HMRC had put forward neither documentary or witness evidence.

[115] We agreed with Mr Brown that it would be procedurally unfair to permit Mrs Spence to lead evidence-in-chief from Mr Morgan on that issue, and we directed accordingly.

[116] After the hearing, we noted that the UT (Judges Richards and Greenbank) had approved the same approach in Weisenfeld and Strom v HMRC [2019] UKUT 301 (TCC) (“Weisenfeld”) where the directions given to the parties were identical to those given to the parties in this case..

[117] In Weisenfeld the UT had to decide whether a witness (Mr Weissbraun, the appellants' representative) should have been permitted to give oral evidence about the existence of a trust for the first time at the hearing of the appellants' appeals. The UT said at [65]:

“If Mr Weissbraun had given his evidence orally for the first time at the hearing when witness statements made no mention whatsoever of an oral declaration of trust, the Appellants would have circumvented the requirements of the FTT's directions and exposed HMRC to a risk of 'ambush'.”

[118] The UT went on to say that it was “no answer” for Mr Weissbraun to say that he had not realised the importance of the issue, because:

“he was the Appellants' duly appointed representative and should not have acted in that capacity unless he felt that he had a sufficient knowledge of Tribunal procedure and general principles of litigation.”

[119] In this case HMRC (through their representative Mrs Spence) may belatedly have appreciated the importance of the time limit issue, and we noted that HMRC's skeleton argument had been drafted by a different officer, not by Mrs Spence. But that is to no avail; the Respondents are HMRC as a body, and they are of course “expected to know Tribunal procedure and general principles of litigation”." (Albany Fish Bar Limited v. HMRC [2021] UKFTT 221 (TC), Judge Redston)

Supplemental questions in chief not to concern entirely new issues for that witness

Oaths

 

“(3) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.” (FTT Rules, r.15(3)).
 

Oaths

Oral evidence given from outside the UK (procedure for obtaining permission)

 

Permission from the other State required for oral evidence

 

"[12] There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.

...

[19]...Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country, whether or not that country is a signatory to the Hague Convention: Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2021] EWHC 255 (Pat). In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom's diplomatic relationship with the other country." (Secretary of State for the Home Department v. Agbabiaka [2021] UKUT 286 (IAC), Lane J)

Permission not required for written evidence 

"[3]...Permission is not needed for written evidence, eg a witness statement by an individual who is overseas or a document obtained from overseas." (FTT Guidance on Taking Oral Evidence From Abroad)

"[25] It is also necessary to clarify the position of written evidence. As with submissions, Mr Holborn's instructions were that a written statement of evidence can be provided to the tribunal by a person outside the United Kingdom, without risk to diplomatic relations." (Secretary of State for the Home Department v. Agbabiaka [2021] UKUT 286 (IAC), Lane J)

Meaning of outside the UK

"Permission is not required where individuals wish to give video and telephone evidence from within the United Kingdom, i.e. anywhere in England, Wales, Scotland or Northern Ireland; Crown Dependencies like Jersey, Guernsey or the Isle of Man; or British Overseas Territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, The Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands and Virgin Islands." (FTT Guidance on Taking Oral Evidence From Abroad)

Stance of Taking of Evidence Unit treated as determinative

"[4] On 29 November 2021, the FCDO established a new Taking of Evidence Unit (‘ToE’). The ToE checks whether overseas governments have any objection to the taking of oral evidence from an individual within their territory.  The response of the ToE about the stance of a particular overseas government is treated as determinative." (FTT Guidance on Taking Oral Evidence From Abroad)

Notify the Tribunal as soon as party is aware oral evidence from abroad may be needed

"[5] Any party that wishes to rely on oral evidence from a person in a Nation State other than the UK should notify the Tax Chamber administration, and send a copy to the other party, as soon as it is aware that oral evidence from a witness abroad may be needed and at least eight weeks before the date of any hearing at which the evidence will be given.  The subject line or header of any such notification should include the words “Evidence from Abroad”." 
(FTT Guidance on Taking Oral Evidence From Abroad)

Duty of professionals to ascertain in advance of hearing

"[11] It is the duty of counsel and those instructing them to ascertain in advance of the hearing when and what permission is required from the FCDO and its newly established Taking of Evidence Unit.

[12] In the present case, Mr Birkbeck informed me that he had only become aware of Mr Breen’s intention to give evidence from California the day before the hearing." (Breen v. HMRC [2022] UKFTT 155 (TC), Judge Brannan)

Form of notification

"[6] The notification should include the following:
(1) the name of the proposed witness;
(2) the country the person would be giving evidence from;
(3) the applicable time zone and time difference between the United Kingdom and the country from which the evidence would be given;
(4) confirmation that the proposed witness has access to the facilities (computer, broadband etc) to give evidence remotely by video or telephone;
(5) a list of the issues of disputed fact that are said to require the oral evidence of the witness; and
(6) a witness statement from the proposed witness containing their detailed written evidence relating to the issues in dispute in the proceedings." (FTT Guidance on Taking Oral Evidence From Abroad)

Other party to respond within 14 days

"[7] The other party should respond within 14 days of the application to indicate what (if any) aspects of the evidence of the witness remain in dispute and whether any such matters can be resolved without the need for oral evidence to be given from abroad.  If no aspect of the evidence of the witness is in dispute, it will usually be appropriate for the Tribunal to refuse permission to rely on the proposed oral evidence." (FTT Guidance on Taking Oral Evidence From Abroad)

Tribunal will contact Taking of Evidence Unit to obtain permission

"[8] Once the necessary information has been provided, HMCTS will contact the ToE to ascertain whether the Nation State concerned objects to oral evidence being given from its territory.  If the ToE does not already hold information on the country in question, the ToE will raise an enquiry with the British Embassy or British High Commission in that country." (FTT Guidance on Taking Oral Evidence From Abroad)

For Tribunal to decide whether to delay case whilst permission obtained

"[9] The amount of time a case has been held up at the ToE stage will be kept under review by the Tax Chamber.  If permission for evidence to be given from another country is delayed, it will be a matter for judicial discretion by reference to the overriding objective whether the listing of a case should be delayed to allow such enquiries to proceed or should continue to be further delayed to allow such enquiries to be concluded.  If delay becomes an issue, the Tribunal may need to consider alternatives to oral evidence being given from the foreign country.  This may include probing the rationale for that evidence; and considering whether the evidence could be given in writing (including by reference to written questions put by the other party); and whether the witness can travel either to the UK or to a third country where it is known there are no diplomatic objections to the giving of oral evidence.  These matters would alsoneed to be considered by the tribunal in the event that permission is refused by the foreign country." (FTT Guidance on Taking Oral Evidence From Abroad)

Permission not obtained in advance: Tribunal adjourning hearing to check position

"[13] In the circumstances, I briefly adjourned the hearing and ascertained that, in relation to the United States, approval had been received by the FCDO for the taking of oral evidence in relation to proceedings before administrative tribunals. Accordingly, it was possible to proceed with Mr Breen’s evidence." (Breen v. HMRC [2022] UKFTT 155 (TC), Judge Brannan)

Oral evidence given from outside the UK (procedure for obtaining permission)

Assessment of witness evidence

 

False statements in witness statements

 

FTT slow to find dishonesty

 

“There was an error in his statutory declaration in which he said that his wife had been born and brought up in New Zealand whereas, in fact, she had been both born and brought up in the UK. That was a serious error in the context of the issues arising in this appeal not least since the error was made in a document whose evident purpose was to persuade HMRC that his children had a non-UK domicile. We will not, however, determine that the error was made dishonestly as we do not think we had sufficient evidence of the circumstances in which the statutory declaration was prepared and sworn to make such a serious finding.” (Henderson v. HMRC [2017] UKFTT 556 (TC), §4, Judge Jonathan Richards).

FTT checking if witness wants to stand by affirmation of witness statement

"[12] However, Mr Green’s evidence displayed evasiveness and dissembling. For example, at one point when he was asked whether he was a director of GC, Mr Green said that he did not know, yet this is the man who set up the company and who has a long history of being a diligent and successful businessman. He frequently undermined his own Witness Statement and gave the impression that he had had little involvement in its drafting. At one point in the hearing he would not even accept that the sub-contractors were provided to GC through Holdings. He claimed that the contractors all in fact worked for GC and Holdings was just a paper company set up on the advice of the accountants for money reasons. The disconnect between his oral evidence and that in his Witness Statement was so great that Judge Bowler took the unusual step of checking with him part way through his evidence to ensure that Mr Green really wished to stand by his affirmation of his Witness Statement. Mr Green confirmed that it was indeed all correct even though his oral evidence frequently bore little relationship to his Witness Statement.

[13] Despite this check and Mr Green’s confirmation of his Witness Statement he later claimed part way through cross-examination that he had developed memory problems and could not remember much of that which was stated in his Witness Statement.   No medical evidence was provided to show that Mr Green had any memory problems and, indeed, his representative had not identified any vulnerabilities of Mr Green before or at the start of the hearing. We were of the view that Mr Green was simply trying to find a way to avoid the issues being put to him by [HMRC's counsel]." (Grantham Ceilings & Interiors Limited v. HMRC [2022] UKFTT 99 (TC), Judge Bowler)

Overstatements

 

Overstatements suggest there is little substance

 

“The fact that he felt the need to overstate the strength of discussions relating to a possible move to Brazil suggests to us that there was relatively little substance to those discussions.” (Henderson v. HMRC [2017] UKFTT 556 (TC), §97, Judge Jonathan Richards).

 

Honest witness may be inconsistent

 

“Experience shows that even the most reliable of witnesses may sometimes be guilty of errors of recollection, and that they may give internally conflicting evidence, yet do so honestly. It is equally the case that two witnesses, both doing their best to give 40 honest evidence, may give different accounts of the same event. And it is, as one might expect, not always easy to determine which of two witnesses is telling the truth when it is clear that only one of them can be doing so.” (Allen v. FCA [2014] UKUT 348 (TCC), §41, Judge Bishopp).
 

Witnesses with an agenda

 

“Although a largely satisfactory, and in my judgment honest, witness, Mr Howell did show clear signs of being a witness "with an agenda" (cf. Lexi Holdings v Luqman [2008] EWHC 1639 (Ch) at [141]). This was apparent in Mr Howell's reluctance to accept the characterisation of the New LLP Proposal as a means of getting around section 1263, although that is clearly what it was…In the course of this entire passage of cross-examination Mr Howell appeared to me to be succumbing to the temptation to gloss the truth in a manner that appeared most advantageous to his company's interests.” (Altus Group UK Ltd v Baker Tilly Tax and Advisory Services Ltd [2015] EWHC 12 (Ch), §89, HHJ Keyser QC).
 

Potentially self-serving evidence

"[98] We place greater weight in these matters on Ms Mathur’s witness statement for the preliminary ET hearing, than on her evidence in these proceedings (where they clash), because the former (i) was significantly closer in time to the events in question; and (ii) was made without the tax law questions now at issue at the forefront of Ms Mathur’s mind, such that her earlier statement was less given to memories and opinions being influenced by the effect on her own tax position." (Mathur v. HMRC [2022] UKFTT 88 (TC), Judge Citron)

Speechifying

"[155] As might be expected given his background, Mr Yeo was a confident and articulate witness who had obviously prepared at considerable length for his appearance in the witness box. It seemed to me that he had determined what his "message" to the Court would be and how he would communicate it regardless of the questions that he was asked. Consistent with this, he frequently resorted to very long recitations of his case which avoided giving a straightforward answer to the question he had been asked and appeared designed to take the discussion in a different direction. I agree with TMO's submission in closing that this propensity on the part of Mr Yeo to "speechify" tended to give his evidence a contrived, evasive and rather self-serving quality." (TMO Renewables Limited v. Yeo [2021] EWHC 2033 (Ch), Joanne Smith J)

Assessment of witness evidence

- Demeanour is not a reliable guide

 

"[194] This is not a case where there was merely a lie as to the MBA degree. Such a lie might have had a limited effect on credibility and might be explicable on the basis that Joe Galloway wished to bolster his academic qualifications and was embarrassed about the way he did it. However his dishonesty did not stop at that. He then gave perjured evidence about the MBA, including repeatedly giving dishonest answers about the circumstances in which he gained his MBA and worked in St John on a project for Coca Cola. In doing so, he gave his evidence with the same confident manner which he adopted in relation to his other evidence about his involvement in the Sky CRM Project. He therefore demonstrated an astounding ability to be dishonest, making up a whole story about being in St John, working there and studying at Concordia College. EDS properly distance themselves from his evidence and realistically accept that his evidence should be treated with caution." (BSkyB Limited v. HP Enterprise Services UK Limited [2010] EWHC 86 (TCC), Ramsey J)

- Demeanour is not a reliable guide

- Cultural differences

 

"Different cultures have different communication styles. These can affect how some people are understood in formal hearings, even when they are speaking relatively fluently in English, and even when they can operate bi-culturally at work or socially.
Cultural differences can lead to misunderstandings in court without anyone realising they are happening, for example:
• East Asian parties and witnesses will be conscious of saving face (both their own and the judge’s). This may lead them to say they understand when they do not in order to ‘not hold things up’.
• Certain South Asian witnesses when answering a question will adopt a ‘narrative style’, providing lengthy context first, before arriving at the ‘point’
• Different cultures may display emotion differently.
When speaking with a person who is using English as a second language, there are ways of speaking English which make it easier to understand. This is not simply a matter of speaking ‘plain English’." (Equal Treatment Bench Book, p.210)

"[48] Judges can find guidance on this difficult topic in the Equal Treatment Bench Book – an invaluable online resource giving advice on everything from accommodating mental and physical disability in the court room to acceptable terminology for gender and ethnicity. The discussion on demeanour, behaviour and body language alerts judges to culturalconditioning and that judges need to be aware of this when assessing whether a witness in the witness box is telling the truth. For example, native speakers of English expect to make their most relevant point in reply to a question first, giving any needed background detail afterwards. However, speakers of South Asian languages would be accustomed to providing the background detail first as context, then coming on to make their most relevant point of reply at the end. If the judge is not aware of that, there is a risk that he will fail to grasp what a witness is saying, wrongly consider a witness to be evasive, or allow counsel to cut off a witness’s answer prematurely.  
[49] Similarly, the meaning and appropriateness of eye contact varies from culture to culture. Lack of eye contact can appear evasive, bored or disrespectful in some cultures, but indicative of respect by others. There is a description in the book of the difficulties that someone on the autism spectrum is likely to encounter in the court process and the adjustments that should be made to proceedings to accommodate them. An autistic person may have difficulty answering hypothetical questions because they may be unable to project themselves forward to envisage how they would feel in two different posited scenarios. Sometimes an autistic person will prefer to sit close to the door of the court, or to have fans and anything making a buzzing or humming noise switched off." (The Art and Science of Judicial Fact-Finding, Lady Rose)

- Cultural differences

Fallibility of memory

 

Judicial recognition

“[95] In recent years there have been a number of first instance judgments which have helpfully crystallised and advanced learning in respect of the approach to evidence. Three decisions in particular require citation. These are:

·         Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm­) – Leggatt J (as he then was)

·         Lachaux v Lachaux [2017] EWHC  (Fam) – Mostyn J

·         Carmarthenshire County Council v Y [2017] EWFC 36 – Mostyn J

[96] Rather than cite the relevant paragraphs from these judgments in full, I shall attempt to summarise the most important points:

i) Gestmin:

·         We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.

·         Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of "flash bulb" memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.

·         Events can come to be recalled as memories which did not happen at all or which happened to somebody else.

·         The process of civil litigation itself subjects the memories of witnesses to powerful biases.

·         Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.

·         The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. "This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth".

 

ii) Lachaux:

·         Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities (The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1, 57). I extract from those citations, and from Mostyn J's judgment, the following:

·         "Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…"

·         "…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…"

·         Mostyn J said of the latter quotation, "these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty."

 

iii) Carmarthenshire County Council:

·         The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.

·         However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said:

"…this approach applies equally to all fact- finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context."

[97] Of course, each case must depend on its facts and (a) this is not a commercial case (b) a central question is whether the core allegations happened at all, as well as the manner of the happening of an event and all the other material matters. Nevertheless, they are important as a helpful general guide to evaluating oral evidence and the accuracy/reliability of memory.” (Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB))

"[27] Given that this appeal concerns a tax return filed in January 2002 and issues relating the prevailing practice in determining the residence of an individual at that time, some 16 years prior to the date of the hearing, I have adopted such an approach [see Kimathi, above] in this case placing greater reliance on contemporaneous documents and publications than the recollections of the individuals concerned." (Hargreaves v. HMRC [2019] UKFTT 244, Judge Brooks, also applied in La Luz Residential Home Ltd v. HMRC [2022] UKFTT 100 (TC), §33, Judge Amanda Brown QC)

"[198] In their Skeleton Argument, HMRC had referred the Tribunal to Guestmin SGPS SA v Credit Suisse (UK) Limited and Another [11].  In fact, we find that the Tribunal’s function in assessing the probative value of oral evidence, which purports to be a recollection of events which occurred, in the circumstances of this case, more than seven years ago, should be informed by the guidance of the High Court in Kimathi & Others v The Foreign and Commonwealth Office [12] (recently affirmed in R (oao Dutta) v GMC [2020] EWHC 1974 (Admin) in which the importance of the Guestmin principles was re-emphasised.  In summary:-

(1)     The best approach for a Tribunal is to base factual findings on inferences drawn from documentary evidence and known or probable facts (Kimathi at 96(i)).

(2)     The value of cross-examination lies largely in the opportunity which affords to subject the documentary record to critical scrutiny and to gauge the personality and motivations of a witness, rather than in testimony of what the witness recalls of particular conversations and events (Kimathi at 96(i)).

(3)     It is important to avoid the fallacy of supposing that because a witness has confidence in their recollection, evidence based on that recollection provides any reliable guide to the truth.  This is because memories are fluid and malleable, being constantly rewritten whenever they are retrieved (Kimathi at 96(i)).

(4)     Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial.  Statements are often taken a long time after relevant events and drafted by lawyers who are conscious of the significance for the issues in the case of what the witness does or does not say (Kimathi at 96(i)).

(5)     For these reasons, a witness, however honest, rarely persuades the judge that their present recollection is preferable to that which was contemporaneously evidenced.  Therefore contemporary documents are always of the upmost importance (Kimathi at 96(ii)).

(6)     There are three main tests which in general give a useful pointer as to where the truth lies, although their relative importance will vary from case to case:-

(a)     The consistency of the witness evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(b)    The internal consistency of the witness evidence, and

(c)     The consistency with what the witness has said on other occasions (Kimathi at 98).

[199] We have borne these principles very much in mind." (HMRC v. Hyrax Resourcing Limited [2022] UKFTT 218 (TC), Judge Anne Scott)

Fallibility of memory

Must still consider all the evidence

 

"[119] The comments of Leggatt J in Gestmin are not, however, to be taken as meaning that witness evidence should simply be disregarded, even if it relates to events occurring several years ago. This was made plain by the Court of Appeal in Kogan v Martin [2019] EWCA Civ 1645 at [88-89] where Floyd LJ said:

“[88] We start by recalling that the [trial] judge read Leggatt J's statements in Gestmin v Credit Suisse and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case for a number of reasons. First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.

[89] Secondly, the judge in the present case did not remark that the observations in Gestmin were expressly addressed to commercial cases. For a paradigm example of such a case, in which a careful examination of the abundant documentation ought to have been at the heart of an inquiry into commercial fraud, see Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 and the apposite remarks of Males LJ at paras. 48-49.”

[120] The point was reiterated by Peter Jackson LJ in Re B-M (children: findings of fact)[2021] EWCA Civ 1371 when he said:

“[24] Further, and as noted by this court in Kogan v Martin [2019] EWCA

Civ 1645 at [88-89] Gestmin is not to be taken as laying down any general

principle for the assessment of evidence. Rather, as Kogan states, it is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. The discussion in Gestmin is expressly addressed to commercial cases, where documentary evidence will often be the first port of call, ahead of unaided memory.”

[121] I have borne these principles in mind when evaluating the all the evidence in this case." (Wroe v. HMRC [2022] UKFTT 143 (TC), Judge Brannan)

"[50] Whilst a large proportion of the facts of this case are agreed by the parties there are significant matters, on which we must make findings of fact.  To do so we agree with [the taxpayer] that we must consider all the evidence.  That is made clear in the decision of the Court of Appeal in Kogan v Martin & Ors (Rev 1) [2019] EWCA Civ 1645 (at para 88), where it is said that the Gestmin guidance does not prevent reliance upon witness statements.   “A proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence.”

[51] The same emphasis on the duty to consider all of the evidence and determining the weight to be given to it was stated in BXB v Watch Tower and Bible Tract Society of Pennsylvania and Trustees of the Barry Congregation of Jehovah’s Witnesses [2020] EWHC 156 (QB), although the fallibility of memory was noted in the context of what has also been described in Gestmin as the tendency of people to develop a narrative after the event." (Batten v. HMRC [2022] UKFTT 199 (TC), Judge Bowler)

Must still consider all the evidence

Witness with an agenda

 

"[89] ... However, there is also the risk that evidence as to what would have happened in hypothetical circumstances is coloured, unconsciously, by the perceived advantage of the party on whose behalf it is given. Although a largely satisfactory, and in my judgment honest, witness, Mr Howell did show clear signs of being a witness "with an agenda" (cf. Lexi Holdings v Luqman [2008] EWHC 1639 (Ch) at [141]). This was apparent in Mr Howell's reluctance to accept the characterisation of the New LLP Proposal as a means of getting around section 1263, although that is clearly what it was. More importantly, towards the end of his cross-examination, in connection with the issue of the length of time that it would have taken to implement the proposal, Mr Howell suggested for the first time that in the period leading up to his decision not to proceed with the proposal he had "slowed things down somewhat on the legal side", that is, with regard to the finalising of the necessary legal agreements by the professional advisers. The true position, in my judgment, was no more than that there was at that stage no active pressing of the professional advisers to produce documents because there was not perceived to be a need for such pressing. There was, as Mr Howell accepted in answer to further question, no instruction to the professionals to ease off. Indeed, such instruction or any action that tended to slow down the completion of the legal work would have been irrational. In the course of this entire passage of cross-examination Mr Howell appeared to me to be succumbing to the temptation to gloss the truth in a manner that appeared most advantageous to his company's interests." (Altus Group (UK) Ltd v Baker Tilly Tax and Advisory Services LLP [2015] EWHC 12 (Ch), HHJ Keyser QC)

Witness with an agenda

Credible witness not a short-cut to accepting all evidence

 

“In the light of these matters, it seems clear to us that the judge, in effect, took a short cut. Having decided that Mrs. Harb was a reliable witness, he accepted that she had made out her case in all respects. He did not, for example, ask himself whether her recollection may have been unreliable in any important respect, and if so, what the implications of that were.” (Harb v Aziz [2016] EWCA Civ 556, §38)

 

“On the one hand, I have Ms Baylis’s statement that Harwood knew she was signing “as director”, and I have found Ms Baylis to be a credible witness.  I am, however, mindful of the Court of Appeal’s warning in Harb v Aziz [2016] EWCA Civ 556 at [38] that it would be an impermissible “short cut” simply to prefer her evidence for that reason.” (Baylis v. HMRC [2016] UKFTT 725 (TC), §160, Judge Redston).

 

Careful analysis of competing evidence required

 

“Of note, however, is the FTT’s broad conclusion that, in any case of conflict with other evidence, it had decided to prefer the evidence of PCL’s witnesses. That is, of course, a conclusion the FTT would have been entitled to reach, on a proper analysis of the competing evidence. 20 What HMRC say, on the other hand, is that the FTT failed to analyse the evidence in that way, and its conclusions are accordingly flawed as a matter of law.” (HMRC v. Pacific Computers Ltd [2016] UKUT 350 (TCC), §51, Mann J and Judge Berner).

 

“It is a factor of considerable importance that F-tT 1, who alone heard them give evidence, believed the drivers’ claims that the goods were delivered, but it is not, in my view, a factor which outweighs all 45 others. However plausible a witness may seem, his claim that he has done something when manifestly he could not have done must at the least lead to a close examination of his claim. F-tT 1 did not undertake that exercise—or if they did, they did not explain how they reached their conclusion. Judge Berner did not fall into quite the same error but adopted what, in my view, is the impermissible approach of assuming that two conflicting parts of the evidence—the claims of delivery and the times shown on the documents—were accurate, and then 5 selecting and in some cases distorting the remaining evidence in order that the conflict could be resolved.”  (HMRC v. SDM European Transport Limited [2015] UKUT 625 (TCC), §155, Judges Bishopp and Cannan).
 

Credible witness not a short-cut to accepting all evidence

Excluding a witness from the hearing until his/her evidence

 

“(5) The Tribunal may give a direction excluding a witness from a hearing until that witness gives evidence.” (FTT Rules, r.32(6)).

 

Good reason required

 

"[16] If a court is, in fact, sitting in public, and if an application is made to exclude a witness or witnesses, then the court may exclude them. But it should only exclude them if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take. The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so. I propose to apply that approach and direct to myself in that way in making the present ruling." (Luckwell v. Limata [2014] EWHC 536 (Fam), Holman J)

 

Starting point is that a party should not be excluded

 

"[59] I do not read Al Rawi as authority for the proposition that in order for a party to have a fair trial, there is an absolute requirement that he or she has the opportunity to be present personally throughout the entirety of the hearing. In so far as anything said in Al Rawi does suggest that, it must be remembered that the context was a very particular one, involving a process which would have restricted the participation of a party to a far greater extent than occurred in the present case. Moreover, an absolute rule would be difficult to square with Lord Dyson's express acknowledgement that there are classes of case where a departure from the norm may be justified for special reasons in the interests of justice. It is of note also that in the two examples that Lord Dyson gave of such cases (see my paragraph 48 above), a party was being wholly excluded from access to some of the evidence, not just excluded from the court room whilst a certain limited portion of the evidence was given but with an entitlement to be told of the evidence thereafter and, of course, to have his representative present whilst the evidence in question was given. Nevertheless, whilst there may not be an absolute rule, it is clear from both Al Rawi and the Zambia case that the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial.
[60] It is not difficult to contemplate situations in which it might possibly be necessary and permissible to proceed with a hearing without a party being present in court. I do not wish to attempt a catalogue of them. A not uncommon example is where a party is refused an adjournment and then simply fails to attend the hearing. Other examples may range from the litigant who disrupts the hearing by unruly behaviour and has to be excluded to allow any progress to be made, to the sort of practical problem that arises where a party has to leave for personal reasons just before the end of the evidence of a witness whose evidence cannot be held over to another time. Having said that, Judge Baucher's order excluding the first claimant from part of the hearing in this case was, in my view, an order that should not have been made.
[61] The fundamental problem was that the judge did not take as her starting point that the claimants were entitled to be present throughout the trial or, indeed, give any weight to this at all in her decision. Had she done so, it is difficult to see how she could have justified making an order excluding them against their will. Her reasoning was sparse and gives little clue to her thinking as to how precisely the order would assist matters. It might have been, for example, that she made it in order to improve the prospects of effective cross-examination by the insurance company or to avoid there being any suggestion that one claimant's evidence had been tailored to what he had heard the other claimant say in the witness box. However, for myself, I find it extremely difficult to contemplate there being any sufficient reason for taking this course in a case such as the present one. At the very least, it was likely to leave the first claimant with a sense of injustice, and it risked the entire trial being impugned on the basis that the exclusion of the claimant had rendered it unfair. In short, it was a wrong order." (Da Costa v. Sargaco [2016] EWCA Civ 764, Black LJ)

Excluding a witness from the hearing until his/her evidence

Excluding a person whilst a witness gives evidence

 

“[The taxpayer] made an application to us to direct that Mr O’Neill should leave the hearing while Mrs McIvor gave her evidence and was cross-examined.  We noted that Rule 32(5) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273 (L. 1) (“FTT Rules”) provides that “[t]he Tribunal may give a direction excluding a witness from a hearing until that witness gives evidence” but otherwise the FTT Rules are silent on exclusion of witnesses.  This is not what [the taxpayer] was applying for, as he was content for Mr O’Neill to be present until Mrs McIvor gave her evidence.  As HMRC did not object we agreed his application using our general case management powers in Rule 5 of the FTT Rules.” (William v. HMRC [2017] UKFTT 449 (TC), §12, Judge Richard Thomas).
 

Excluding a person whilst a witness gives evidence

Silence of witness on a point leading to adverse inference

“The husband was well aware that the inquiry conducted by Moylan J was into the extent of his assets on 30 April 2004. It is clear that he held assets in 2006 and 2007 and he must have been aware of their origin. Had he demonstrated that they originated in or after 2005, they would have been irrelevant to the inquiry. Instead, however, he chose to obfuscate about their origin. In those circumstances it was reasonable for Moylan J to infer that a truthful explanation of their origin would have been probative of the existence of undisclosed assets on 30 April 2004 and that the husband’s withholding of it should be no less probative.” (Gohil v. Gohil [2015] UKSC 61, §41).
 

Silence of witness on a point leading to adverse inference

Hearsay evidence

 

First-hand evidence of what was said contemporaneously not hearsay

 

“Mr Weissbraun explained to us that he wanted to give evidence that he had heard Mr Wiesenfeld, in his capacity as a director of the Company, making an oral declaration of trust over assets of the Company. Mr Weissbraun was, therefore, proposing to give first-hand oral evidence in the proceedings that the Company had declared a trust over its assets. That would not have been hearsay evidence.” (Weisenfeld v. HMRC [2019] UKUT 301 (TCC), §46, Judge Jonathan Richards and Judge Greenbank).

 

Less satisfactory but a question of weight

 

"[The taxpayer] argued that as the evidence identified was hearsay, having regard to the European Convention on Human Rights (“ECHR”), Al-Khawaja v UK (2012) 54 EHRR 23, R v Ibrahim [2012] 4 All ER 225, R v Riat and other appeals [2013] 1 All ER 349 and R (on the application of Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) (L/49), none of it should be admitted due to its cumulative effect especially as that some of the witnesses giving that evidence may not be truthful (and have reasons not to be truthful) and others were not available for cross‑examination. However, we considered this evidence to be clearly admissible under Rule 15(2)(a) of the Tribunal Procedure Rules. So the question was: should it be admitted? 

117.     On balance, and it was more difficult in the case of some parts of the evidence identified than others, we came to the conclusion that it should be admitted subject to the question of weight to be attributed to it." (Sintra Global Inc v. HMRC [2022] UKFTT 365 (TC), Judge Brooks)

"[5]...Where evidence is provided by someone who has no first-hand knowledge of the facts in relation to which s/he speaks (i.e. what s/he says amounts to hearsay) then, in this jurisdiction, the fact that the evidence is not first-hand goes to the weight to be given to that evidence and does not go to admissibility. It cannot, therefore, be said that the evidence of Mr. Hoyler falls to be excluded or that the Respondents have, therefore, failed to rely upon any evidence...

[6]Nevertheless, I did not find Mr. Hoyler’s evidence to be particularly helpful. It contained a mixture of submission and opinion; and was altogether light on the facts..." (HMRC v. Smartpay Limited [2022] UKFTT 146 (TC), Judge Malek)

“Undoubtedly the best case is that of direct evidence which can be the subject matter of cross-examination to establish the truth of the consequence. Less satisfactory of course is hearsay evidence which is untested.” (HMRC v. Infinity Distribution Ltd [2015] UKUT 219 (TCC), §28, Peter Smith J).

“The Tribunal can and did consider hearsay evidence. The fact that evidence is hearsay is simply a question of the weight to be attributed to that evidence by the Tribunal.” (Aircall International Ltd v. HMRC [2016] UKFTT 406 (TC), §83).

 

“Some of Mr Stoloff’s evidence is clearly hearsay, eg when he discusses Investec’s leasing business and motives for selling the lease portfolio in paragraphs 16, 25 and 29, but the Tribunal can and does accept hearsay evidence, although it will carry less weight than direct evidence.” (The Leasing No.1 Partnership v. HMRC [2014] UKFTT 360 (TC), §13, Judge Sinfield).

 

From professional advisers

 

“In such a case as the present, the solicitor can give as good evidence as anyone as to the purpose of his client” (Philippi v. CIR 47 TC 75 at 112); Rennell v. CIR [1962] Ch 329; 

 

Substitution by HMRC officers

 

“We have decided to admit Officer Archibald’s witness statement as evidence even though he did not attend for cross-examination. We did not agree with Mr McNicholas that HMRC were seeking to “slip in Officer Archibald’s prime evidence by the back door” given that Officer Rhodes’s witness statement referred expressly to that of Officer Archibald and stated that it was true. Moreover, Officer Archibald’s witness statement consisted largely of an explanation of arithmetic calculations that he had performed and of various correspondence between HMRC and the Company. Mr McNicholas could (and did) challenge the evidence on such issues by putting points to Officer Rhodes in cross-examination. However, there were parts of Officer Archibald’s witness statement that could not be challenged in this way: for example, Officer Archibald’s subjective reasons for deciding to investigate the Company and for deciding to adopt the methodology he did for making the assessments. We have taken into account the fact that Mr McNicholas had no opportunity to challenge evidence such as this when assessing its weight.” (Morrella Ltd v. HMRC [2017] UKFTT 13 (TC), §9).

FTT may ignore it 

 

“We considered that the statements were relevant to the case and that we would admit them, but that we would give such weight as we thought appropriate, which might not be very much, to any untested assertions of fact.” (Couldwell Concrete Flooring Ltd v. HMRC [2016] UKFTT 776 (TC), §12, Judge Thomas).

 

“[HMRC’s witness] said that an employee of KFT had told the Official Receiver that money would be withdrawn in cash and paid to Mr Rangos.  That evidence was double hearsay and Mr Rangos was not able to cross-examine the employee so we have disregarded it as well.” (Rangos v. HMRC [2015] UKFTT 262 (TC) §66).

 

Efficiently and professionally provided hearsay

 

“It is obvious to us that HMRC’s very large task in amassing the evidence of defaults will involve input from numerous Officers. We might doubt third or fourth hand evidence where it is asserting something improbable. Where however it appears to have been provided efficiently and professionally, and where it strongly indicates a familiar pattern consistent with fraudulent defaults, we reject the notion that we should dismiss such indirect evidence.” (Aircall International Ltd v. HMRC [2016] UKFTT 406 (TC), §78).
 

Hearsay evidence

Hearsay in penalty appeals

 

"[70] In the present case, we do not consider it seriously open to dispute that it would be necessary for any tribunal considering the issue to review, in some detail, the evidence that was before the FTT at the 2017 Hearing and assess the extent to which the hearsay evidence was relied upon as being decisive in the 2017 Decision. Mr McDonnell argued that the “building blocks” for the finding of fraud in the 2017 Decision were based on hearsay; but that is disputed by Mr Watkinson who contended that the 2017 Decision was primarily based on the documentary evidence before the FTT. We cannot determine which of these submissions is correct simply by conducting the cursory review of the 2017 Decision which Mr McDonnell appeared to suggest would be sufficient.  

[71] Any argument based on the admission of hearsay evidence and any potential breach of Article 6 in this regard should therefore have been raised before the FTT at the 2019 Hearing. The FTT would have had to consider what case management directions to make in that regard, and the parties would have had to consider how to conduct this aspect of the case, including considering the material that would need to be put before the FTT to determine the point. We agree with Mr Watkinson that the FTT would, in particular, have had to consider the nature and the quality of the evidence relied upon in the 2017 Decision. It is quite clearly, in these circumstances, not appropriate for this issue to be dealt with for the first time by an appellate tribunal without the relevant underlying material before us." (C F Booth Limited v. HMRC [2022] UKUT 217 (TCC), Bacon J and Judge Brannan)
 

Hearsay in penalty appeals

Information from foreign tax authority

Admissible

"[123] ... Accordingly, we came to the conclusion that the request for information was properly made within the terms of the Directive and that the material obtained as a result of that request could be admitted.  However, the question of weight to be attributed to that evidence remained open and a matter to be addressed at the conclusion of the substantive hearing." (Sintra Global Inc v. HMRC [2022] UKFTT 365 (TC), Judge Brooks)

But may be inadequate

"[272] We recognise that situations involving potential cross-border fraud are particularly difficult to unravel, especially in the context of the sophisticated MTIC arrangements that became prevalent using numerous missing traders and buffers to block relevant tax authorities’ views of the schemes being operated.  However, that does not mean that we are somehow able to gloss over the need for evidence of fraud in connection thereto to conclude that by virtue of the very existence of missing traders, and in this case companies which the Polish tax authorities have concluded were essentially fictitious, that the requirements for applying the Kittel/ Mecsek-Gabona principles exist.

[273] We have identified several problems with HMRC’s evidence in this case, not least that much of it is focussed on the position of another UK company, EP.  We have found HMRC’s evidential approach generally in this case to have been to produce large volumes of information describing a general web of VAT fraud to which Tisca, with whom AIL dealt, is said to have been linked.  That is insufficient." (Sheth v. HMRC [2022] UKFTT 167 (TC), Judge Bowler)

Information from foreign tax authority

Proving intention 

 

“wherever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said, because that is the only means by which you can find out what his intentions were” (Sugden v. Lord St Leonards (1876) 1 PD 154 at 251); “What he says is not the only means: it is just one of the means of finding out what his intentions were. You may find it out also by what was said to him and his reactions to it, the circumstances and so forth.” (Philippi v. CIR 47 TC 75 at 112);
 

Proving intention 

Standard procedure evidence 

 

“Cranston J acknowledged that Mr Thompson and Mr Stevens had limited memories of the events of 21 January, 26 January and 6 February. That was not surprising since each of them would have had many meetings with many different customers during the relevant period. They were, however, experienced bankers and it was legitimate for them to give evidence based upon their normal practice and the Bank’s standard procedure. Their evidence as to what they would have said or done by reference to the documents or to the Bank’s practices and their own experience the judge regarded as “on the whole” reliable.” (Alfano v. National Westminster Bank Plc [2013] EWCA Civ 1703, §19, Pitchford LJ).

 

Understandable that witnesses forget 

 

“It is understandable that the witnesses had, at best, a hazy recollection of events many years earlier…” (Wrag Barn Golf & Country Club v. HMRC [2012] UKUT 111 (TCC), §36).
 

Standard procedure evidence 

Dishonest witnesses 

 

“The making of false statements as part of legal proceedings undermines the administration of justice. Courts have repeatedly emphasised the gravity of such conduct and have emphasised that those who make false claims should expect to be sent to prison.” (Aziz v. Ali [2014] EWHC 4003 (QB), §14, giving reasons why such conduct is treated seriously:

(1) “the system of justice in this country requires and depends upon people who bring claims and make statements in court proceedings acting truthfully and honestly. The dishonest making of false statements undermines that system of justice. It undermines public confidence in the justice system”;

(2) “dealing with fraudulent claims involves the use of considerable public and court resources…paid for by the tax payer and the public purse”.)

 

Any dishonesty undermines reliance on a positive demeanour

 

“I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanour has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanour must necessarily lose its value.” (Yuill v. Yuill [1945] 1 All ER 183 at 189 per Lord Greene MR).

 

Backdating

 

Forgery

Contempt

 

Three requirements must be proved beyond reasonable doubt (AXA Insurance UK plc v. Rossiter [2013] EWHC 3805 (QB), §9):

(1) the falsity of the statement in question;
(2) that the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects;
(3) that at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice;

 

Immunity from civil liability

 

“It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v Lord Rokeby (1873) LR 8 QB 255, Watson v M’Ewan [1905] AC 480).” (Roy v. Prior [1971] AC 470 at 477)

 

But not from the tort of malicious prosecution

 

“It is suggested that to allow Mr Willers’ claim would introduce an inconsistency with the rule that evidence given to a court is protected by immunity from civil action, even if the evidence is perjured. If this were a valid objection it would apply to all forms of the tort of malicious prosecution, including prosecution of criminal proceedings, as well as to the instances of malicious institution of civil process which are acknowledged on all sides to be within the scope of the tort. Roy v Prior [1971] AC 470, 477-478, is authority that the rule which bars an action against a witness for making a false statement does not prevent an action in respect of abuse of the process of the court.” (Willers v. Joyce [2016] UKSC 43, §48).

 

Although note that there is currently no tort of malicious defence: (Willers v. Joyce [2016] UKSC 43, §51).
 

Dishonest witnesses 
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