R2: New arguments on appeal
New arguments often emerge in the course of appeals
“As often happens, new arguments have emerged in the course of these appeals. In principle there is nothing wrong with this. The law would not progress very far or very fast if every appeal were to be strictly limited to a rehearsal of the arguments advanced below. Particularly in a system based on the dialectic of oral advocacy, the possibility of modifying or abandoning weaker arguments needs to be balanced by the possibility (dangerously seductive though it can be) of developing better or fresh ones.” (Miskovic v Secretary of State or Work in Pensions,  EWCA Civ 16 §109)
Apply to the court hearing the appeal
" ... We consider that, as a matter of procedure, we have jurisdiction to grant permission to appeal in relation to the Disputed Paragraphs even if we were to take the view that FTT was not asked to decide and did not consider whether to grant permission on those issues. It makes no sense to require an appellant to apply for permission to amend to the FTT if there is an outstanding appeal to the Upper Tribunal." (HMRC v. Bluecrest Capital Management LP  UKUT 200 (TCC), Leech J and Judge Herrington)
“Where permission to appeal has been given, whether by the First-tier Tribunal or the Upper Tribunal, an application in this Tribunal for further grounds to be permitted to be advanced is not properly regarded as a fresh application for permission to appeal, and does not require to be made in the first instance to the First-tier Tribunal. Nothing in Earlsferry runs counter to that basic proposition. I would add too that a similar analysis would apply on an application for permission to appeal in this Tribunal; once such an application has properly been made (for example, where the First-tier Tribunal has refused permission) any new ground of appeal which the applicant wishes to raise may properly be considered by this Tribunal, without first having to have been subject to an adverse decision below.” (Hills v. HMRC  UKUT 266 (TCC), §27, Judge Berner, approved in Whittalls Wines Ltd v. HMRC  UKUT 260 (TC), §12).
- Failure to properly raise an argument leading to dismissal of appeal
“On the other hand, no application for permission to appeal was made in respect of the FTT’s decision that the belts were not parts of the monitors, nor importantly in respect of the conclusions reached by the FTT in respect of the taking account of the intended purpose of the belts by reference to the objective characteristics and properties…This appeal, accordingly, is bound to fail.” (Graphic Controls Limited v. HMRC  UKUT 98 (TCC), §§15…19, Newey J and Judge Berner).
Getting permission to appeal on a new argument is not the same as getting permission to argue the new point
" Until very recently in deciding whether or not to grant permission to appeal the Court of Appeal heard only from the would-be appellant. Partly for that reason the mere fact that permission to appeal has been granted on a particular point does not prevent the respondent from objecting that the point on which permission has been granted is a new point which the appellant ought not to be able to advance for the first time on appeal: Mullarkey v Broad  EWCA Civ 2 at ." (The Prudential Assurance Company Limited v. HMRC  EWCA Civ 376, Lewison LJ)
“ Points of this kind more often arise at the stage of an application for permission to appeal or, if permission has been granted, on seeking to amend the grounds of appeal. Here, by contrast, permission to appeal has been given on grounds which include the new points. However, the grant of permission, on which the Respondent was not heard, only shows that there were thought to be reasonable prospects of success. It does not amount to a grant of leave, binding on both parties, to rely on the new point. All it means is that the Appellant was given the right to argue in favour of this at a full hearing. In the supplemental skeleton, and in his oral submissions, Counsel accepted that, insofar as the presentation of the case at trial involved a concession, permission was required to withdraw it.” (Mullarkey v. Broad  EWCA Civ 2, Lloyd LJ).
" The Tribunal did not, however, determine the question of whether, if it became relevant, HMRC should be allowed to rely on the attribution issue at the hearing of the appeal. That is the matter which we now need to decide. The mere fact that the Tribunal permitted HMRC to refer to the issue in its response does not amount to a decision that the argument may be run in the appeal. That is clear from the Tribunal’s recent decision in CF Booth v HMRC  UKUT 217 (TCC), §73 which, referring to the Court of Appeal’s decision in Mullarkey v Broad  EWCA Civ 2, confirmed that the mere fact that permission had been granted on a ground of appeal did not preclude an argument at the substantive appeal as to whether the appellant should be permitted to run the point because it was a new point that was not argued below. Although that was in the context of a ground of appeal raised by an appellant, the same principle would, we consider, apply to a point that HMRC was permitted to include in its response." (HBOS Plc v. HMRC  UKUT 13 (TCC), Bacon J and Judge Raghavan)
" Likewise in Paltank Ltd v HMRC  UKUT 211 (TCC), §7, the Upper Tribunal noted that HMRC had identified in their respondents’ notice and skeleton argument that certain grounds were new arguments which were not pursued before the FTT, and held that “the fact that permission to appeal has been granted in respect of a ground does not mean that it is necessarily appropriate for this tribunal to consider it in reaching its decision, particularly where it may raise mixed questions of law and fact.”
 For the reasons given above, and even though permission to appeal on the point was granted, we do not consider the hearsay issue to be one which is suitable for determination by this Tribunal; we therefore reject it on that basis." (C F Booth Limited v. HMRC  UKUT 217 (TCC), Bacon J and Judge Brannan)
“Mr Manduca accepts that the fact that permission to appeal was granted on the second ground does not preclude HMRC submitting that he should not be allowed to rely on that ground because it could have been but was not argued before the First-tier Tribunal.” (Manduca v. HMRC  UKUT 262 (TCC), §24, Rose J).
However, UT cannot strike out ground of appeal on which permission has been granted
"The Upper Tribunal may strike out the whole or any part of the proceedings
(c) in proceedings which are not an appeal from the decision of another tribunal or judicial review proceedings, the Upper Tribunal considers there is no reasonable prospect of the appellant's or the applicant's case, or part of it, succeeding.” (UT Rules, r.8(3)(c))
“I agree with [HMRC] that it is undesirable – for HMRC and appellants alike – to litigate the same point in appeal after appeal. It is in the interests of all that finality should be achieved. I do not, however, consider I can achieve that finality in the manner [HMRC] urged on me… [I]n my judgment it is not open to me to use rule 5(3)(c) in order to circumvent the clear indication to be derived from rule 8(3)(c) that the Upper Tribunal may not strike out any part of an appellant's case when (as is necessarily the case) permission to appeal has been given.” (Universal Enterprises (EU) Limited v. HMRC FTC/21/2013, §§9…11, Judge Bishopp)
Not limited by points argued below
"...There is in any event no basis for implying into section 54(4) of the Access to Justice Act 1999 the term which the claimants advance. The subsection means what it says, and imposes no bar on a party from taking a point on appeal which it has not taken in the courts below. The court uses its common law powers to regulate the taking of such points on appeal." (Test Claimants in FII Group Litigation v. HMRC  UKSC 31)
- But must identify an error of law in the decision below (rather than raise a completely new issue)
" Where the appellant wishes to raise a new challenge to the findings which the FTT has already made or a pure point of law, we consider that we have jurisdiction to permit an appellant to apply for permission to amend the Grounds of Appeal and to argue the point on appeal even though it was never taken before the FTT...
 The position is more problematic, however, where an appellant seeks permission to amend the Grounds of Appeal to raise new issues of fact and law which were not determined by the FTT and which are not consequential upon the FTT being found to have made an error of law...
 Section 12(4) only permits the Upper Tribunal to make any decision which the FTT could have made if it is satisfied that the FTT has made an error of law and it has decided to re-make the decision. The TCEA contains no corresponding power to make findings of fact and to act, as it were, as a tribunal of first instance where the Upper Tribunal has not found that the FTT made an error of law. However, we have decided that the FTT made no error of law and we have dismissed the IP Appeals. Mr Gammie did not refer us to any statutory provision or authority which suggests that we have the power to decide new issues and find facts in those circumstances and we do not consider that the jurisdiction of the Upper Tribunal extends that far. Section 11(1) confers a statutory right of appeal from the FTT on a point of law and section 12(4) gives the Upper Tribunal power to make findings of fact in re-making the decision but not otherwise."
(HMRC v. Bluecrest Capital Management LP  UKUT 200 (TCC), Leech J and Judge Herrington - in relation to whether income was foreign source, the FTT having decided that it was taxable without being asked to determine that issue)
Whether point is a new point
- Issues before the FTT identified by the grounds of appeal
" The most obvious place to verify what was, and was not, in issue in the FTT, is in the pleadings. Specifically, the rules require HMRC to "set out their position" in their statement of case (see rule 25(2)(b) of the Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2009, SI 2009/273). I have not found anything which reflects Ground 2 in HMRC's statement of case (although I have found the two arguments outlined at paragraph 28 above set out). That is not necessarily fatal to the suggestion that the point was live before the FTT, if a summary of it existed in some other document, for example in a skeleton or in the FTT decision, because sometimes the issues shift during the course of an FTT hearing. But despite Mr Davey's best efforts, I have not been able to find such a summary anywhere in the documents before the FTT or in the FTT's decision. Indeed, Ground 2 seems to have arisen in response to the UT's comments, which themselves were predicated on the UT's observation that the point they had in view, which focussed Ramsay on section 11, had not been raised before either tribunal." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
" (4) We accept (without deciding) that the position before the General Commissioners and the Special Commissioners might well have been different. However, in our judgment, the position changed fundamentally following the reform of the Tribunal structure. The FTT is a judicial body with exclusive jurisdiction to determine tax appeals. Once an appellant has notified an appeal to the FTT, HMRC no longer has jurisdiction to act as an appellate body (and, indeed, becomes a party to the appeal)...
(5) In our judgment, the scope of the appeal to the FTT was governed exclusively by the Grounds of Appeal which the IP Appellants sent or delivered to the FTT. It is common ground that the IP Appellants did not identify either of the additional points in the Disputed Paragraphs. We accept that the IP Appellants attempted to reserve their position to add “such further grounds as the Appellants may identify in due course in response to HMRC’s case”. But in their Statement of Case HMRC gave fair warning that they did not accept that reservation and that the IP Appellants could not unilaterally reserve the right to amend their case." (HMRC v. Bluecrest Capital Management LP  UKUT 200 (TCC), Leech J and Judge Herrington)
- References to a statutory provision for other purposes not sufficient
" Having considered the various references with care, I conclude that although section 11 was mentioned in HMRC's documents prepared for the FTT and by the FTT in its decision, that was in the context of two particular arguments, neither of which is the same as or even similar to Ground 2..." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
- Not conceding a point insufficient
" I accept that at no point did HMRC concede that the reacquisition of the Assets amounted to qualifying expenditure for section 11 purposes. I also accept that the burden remained on the Taxpayers to prove their case including that the Option Price was qualifying expenditure for section 11 purposes. But those points are insufficient, in my view, to demonstrate that section 11, in the way it is now argued as part of Ground 2, was in issue before either tribunal. To be persuaded of that, I would need to see some articulation of the point so that I could be satisfied that it was fairly and squarely put by HMRC as a challenge to the Taxpayers' scheme." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
- Reserving the possibility of amending grounds of appeal not sufficient
" (6) In our judgment, the burden was on the IP Appellants to identify any further grounds on which they intended to rely before the FTT and to make an application to amend their Grounds of Appeal. Moreover, although they attempted to reserve the right to amend the Grounds of Appeal, the IP Appellants never did so (despite HMRC’s challenge). Indeed, the reservation itself shows that the IP Appellants considered it necessary to apply to amend the Grounds of Appeal and tried to buy time to do so." (HMRC v. Bluecrest Capital Management LP  UKUT 200 (TCC), Leech J and Judge Herrington)
- New point raised below, but late
" CF Booth Limited (at §67) also referred to the established line of authority that an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before at first instance, “particularly where that would necessitate new evidence or would have resulted in the trial below being conducted differently”. The Upper Tribunal in Wyatt Paul v HMRC  UKUT 1166 (TCC) confirmed that those principles apply equally to a respondent seeking to rely on a new point that was not raised below.
 In the present case the attribution issue was raised below, albeit at a very late stage in the proceedings after the appellants’ evidence had been heard. The relevant principles are therefore those which apply where a party is seeking to amend their pleadings to raise a further point. These principles were addressed in the Upper Tribunal’s decision in Denley v HMRC  UKUT 340 (TCC) , §31 applying the same principles as those considered in relation to the CPR in §38 of Quah v Goldman Sachs  EWHC 759 (Comm).
 As set out there, the decision on whether to allow an amendment is a matter for the discretion of the court, striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. While a very late application to amend (i.e. one that would compromise a fixed court date if allowed) should generally not be allowed, lateness is a relative concept which depends on the nature of the proposed amendment, the quality of the explanation for its timing, and the consequences in terms of work wasted and consequential work required.
 We consider that, in the circumstances of this case, the balancing of the respective injustice to the parties points towards refusing to allow HMRC to raise the attribution issue. Chief among those circumstances is that if the issue had surfaced earlier, it is likely that the scope of evidence which the appellants might have chosen to adduce, and its level of detail, would have been quite different. For instance, what exactly were the sticking points in the negotiations? Were those matters which emerged from practices or knowledge that would only have been apparent in the period after 1997, or would they equally have been sticking points if the “wrangling” was transposed back to a start date of 1989? It is also possible that the appellants would have sought to develop a case in response that any further delays to their claims were due to other errors of HMRC." (HBOS Plc v. HMRC  UKUT 13 (TCC), Bacon J and Judge Raghavan)
- Failure to discharge burden of proof not a new argument (even if issue not raised below)
“We are unable to accept, in the circumstances of this case, that either the competence or time limit issues can be regarded as new issues of law within the scope of the MBNA principle. Those issues were issues with respect to which HMRC had the burden of proof, and which, for HMRC to succeed, had to form part of HMRC’s own case. They were not issues that the appellants had to raise or argue, and cannot 25 therefore be regarded as points not taken by the appellants before the FTT for which permission of this tribunal is now required.” (Burgess v. HMRC  UKUT 578 (TCC), §48, Judges Berner and Tom Scott).
Only a new argument if clearly conceded
“For HMRC to succeed before the FTT, either the competence and time limit issues had to be determined in their favour, or those issues had to have been conceded by the appellants. There was no such express concession and, in our judgment, none can be inferred. HMRC were wrong to assume, as it appears from their statement of case that they did, that the absence of reference by the appellants to the competence and time limit issues in their respective grounds of appeal, meant that those issues, on which HMRC’s case depended, did not have to be determined in their favour.” (Burgess v. HMRC  UKUT 578 (TCC), §49, Judges Berner and Tom Scott).
It is a new argument for party who did not make case in relation to point on which it bore the burden to argue that point on appeal
“Although we accept that, in relation to the assessment on Brimheath for those periods, it would have been sufficient for HMRC to have advanced their case, both as respects the competence and time limit issues, on the basis that the loss of tax had been brought about carelessly (see paras 43 and 46(2), Sch 18 FA 1998), no such case was in fact advanced. Furthermore, it is clear that the FTT was approaching all these questions of fact by reference to the substantive issue, where the burden of proof was on the appellants and not, as would have been the case on the competence and time limit issues, on HMRC…This is therefore effectively a new issue which we are being invited by HMRC to permit to be raised for the first time on this appeal. On the basis of MBNA, to which we referred earlier, we refuse permission. This was evidently an issue that HMRC could have raised before the FTT, but failed to do so. It is also an issue on which further factual findings, by reference to the applicable burden of proof, would have to be made.” (Burgess v. HMRC  UKUT 578 (TCC), §§55…56, Judges Berner and Tom Scott).
Must raise an arguable point of law and be appropriate in all the circumstances
" There is no dispute between the parties as to the approach the Court should take to HMRC's application for permission to appeal on Ground 2. If Ground 2 was live before the FTT, then this Court should consider whether it has a real prospect of success, see Nadia Zaman v London Borough of Waltham Forest  EWCA Civ 322 at . If Ground 2 is a new ground of appeal, the Court should take the approach outlined in Singh v Dass  EWCA Civ 360 per Lord Justice Haddon-Cave at - (approved in Notting Hill Finance Ltd v Sheikh 2019] EWCA Civ 1337;  4 WLR 146):
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad  EWCA Civ 2 at  and ).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service  EWCA Civ 24;  RTR 22 at )." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
“I consider that in deciding whether to exercise that discretion, two questions arise. The first is whether the ground sought to be adduced raises an arguable point of law in relation to the FTT decision. If and only if the answer is “yes” does the second question arise, which is whether it is appropriate in all the circumstances to exercise the discretion to allow the additional ground to be adduced.” (Whittalls Wines Ltd v. HMRC  UKUT 260 (TC), §17, Judge Thomas Scott)
UT can permit party to add grounds not referred to in FTT application
“Were there to have been no extant appeal in the Upper Tribunal, for which permission had already been given, Rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”) would have precluded a grant by this Tribunal of permission to appeal the FTT’s costs order; an application for permission to appeal may be made to the Upper Tribunal only if an application has been made first to the FTT and been refused or granted on limited grounds. But where, as in this case, permission to appeal has been given (it was given by the Upper Tribunal), there is 5 nothing to prevent the Upper Tribunal, if it thinks fit, giving permission to add new grounds of appeal in an appropriate case.” (Hills v. HMRC  UKUT 266 (TCC), §27, Judge Berner).
Points of general importance more likely to be allowed
“The procedure before the Special Educational Needs Tribunal is meant to be informal, and we are told by Otton LJ that representation is discouraged. To my mind it would be quite wrong to reproach Miss B for not having raised this argument before the Special Educational Needs Tribunal or to penalise her for not having done so. Furthermore, this is a case of general importance and it may well set a precedent. Now that the parties have come this far, it seems to me to be in the public interest that we should decide it, rather than that we should say that the judge should never have allowed it to be raised in the first place." (B v. London Borough of Harrow  3 FCR 231).
Consideration of the party’s behaviour in general
“Mr Lawrence asks us to adopt a completely different approach from that taken on his client's behalf before Judge Seymour. He asks us to set aside Judge Seymour's decision on the basis of this late argument, which was not before Judge Seymour, from a party which has failed to comply with orders for time and, most important in this context, from a party which had misled the court in a crucial particular, namely the company's financial position at the time when the judge was making his decision…This application involved an exercise of the court's discretion. Having considered the application in the round, it seems to me that this is not an appropriate case in which to give Mr Lawrence the leave that he has sought.” (TMS Contract Services Ltd v. RK Timber (Southern) Ltd, 6 December 2000, Court of Appeal).
Generally not appropriate to decide on the papers
“In relation to the second ground, Judge Berner noted that it was not appropriate to consider whether to admit a new ground of appeal on the papers and without giving HMRC the opportunity to make representations.” (Boxmoor Construction Limited v. HMRC  UKUT 91 (TCC), §24, Judges Sinfield and Powell).
New ground with little merit raised late: permission not granted
“There was a significant delay before the new ground was raised…We agree with Mr Pritchard that the Appellant could and should have raised this intended challenge when it first applied for permission to appeal, and that Mr Bedenham was unable to offer a satisfactory, or indeed any, explanation of the Appellant’s failure to do so. We also do not accept Mr Bedenham’s argument that there would be no prejudice to HMRC; absent a material and unforeseeable change of circumstance a respondent should be able to assume that a finding of fact which has not been challenged in an application for permission to appeal has been finally determined, and that it has no need to address the point further…There is little merit in the additional ground…” (Bramley Ferry Supplies Limited v. HMRC  UKUT 214 (TCC), §13, Judge Bishopp and Judge Greenbank).
New ground raised at the end of oral submissions too late
“I could identify no reason why I should not follow Judge Reid QC’s decision regarding the scope of the appeal. Beyond that, given the whole procedural background of this case, including a lengthy hearing before Judge Reid QC, this motion, made at the end of Mr Upton’s oral submissions before me came far too late. In these circumstances I did not think it appropriate to grant leave to amend the ground of appeal.” (Spring Salmon & Seafood Limited v. HMRC  UKUT 205 (TCC), §68, Lord Bannatyne).
Permission granted where unclear whether matter should be raised with FTT, to avoid delay
“To avoid further delay in determining this question, which would be occasioned 25 if the case were to be required to be dealt with by a separate FTT hearing, it had been envisaged at the time of listing of this hearing that the judge, being authorised to sit both in the Upper Tribunal and the FTT, would be able to wear whichever judicial hat was required in order to found the necessary jurisdiction. Having considered the matter, however, I have come to the conclusion that the question of the FTT’s costs 30 order can properly be brought within the jurisdiction of this Tribunal, and that it is more expedient for all questions to be determined by me sitting in one capacity.” (Hills v. HMRC  UKUT 266 (TCC), §23, Judge Berner).
New points of law to be entertained unless unfair
" That, then, raises the question whether the Taxpayers would be prejudiced if Ground 2 were introduced at this stage, either because they would wish to rely on evidence to deal with the point, or because the hearing would have been conducted differently if the point had been raised before the FTT (see Singh v Dass at ). If there is no prejudice in these terms, and the point is one of pure law, it is hard to see any good reason why the point should not be run at this stage (noting that the protections suggested in Singh v Dass at  are or can all be put in place)." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
" In my judgment it is appropriate for this court to permit HMRC to raise the new points of law about articles 7 and 10 of the 2004 Regulation on appeal. Mrs Carrington's position has been protected, and there are sufficient findings of fact to enable the appeal to be effective. The points of law raised by the appeal were recognised to be important points of principle by Lewison LJ when granting permission to appeal, and it is apparent that the 2004 Regulation forms part of the EU law which continues to apply after the UK's departure from the European Union and the ending of transitional arrangements. It is apparent that these points of law have the potential to affect other cases and ought to be clarified. As was made clear in Miskovic at paragraph 124 the Court of Appeal exists, like every court, to do justice according to law. The new points of law can be entertained without unfairness and should be heard." (HMRC v. Carrington  EWCA Civ 174, Dingemans LJ)
“We are in full agreement with that statement of the law [in Miskovic, §124, see below], and for this reason we consider that we should entertain HMRC’s first ground of appeal, even though it was not argued directly before the Tribunals. We are satisfied that it requires no new findings of fact; it proceeds on the First-tier Tribunal’s findings of fact and the accompanying documents. Indeed aspects of the ground appear to have been canvassed to some extent before the First-tier and Upper Tribunals. We do not think that allowing this ground gives rise to any unfairness to the respondents; detailed notice of it was given in the grounds of appeal and the notes of argument, and counsel for the respondent was able to present a full argument in response.” (Advocate General For Scotland v. Murray Group Holdings Ltd,  CSIH 77 §39)
“The totality of these considerations suggests that justice is best served by a power in appellate courts or tribunals to entertain new points of law, but with a concomitant power not to do so if it would either be unfair to another party or would place the court itself in an untenable position. Such powers, like most powers, may become obligations if the situation warrants it…The Court of Appeal exists, like every court, to do justice according to law. If justice both requires a new point of law to be entertained and permits this to be done without unfairness, the court can and should entertain it unless forbidden to do so by statute.” (Miskovic v Secretary of State or Work in Pensions,  EWCA Civ 16 §§112…124, Sedley LJ).
“In my view the expression "any point of law arising from a decision made by the Upper Tribunal" is to be interpreted as including a dispute about the correct application of any principle of law on which the tribunal's decision depends. That is sufficient to found the court's jurisdiction to entertain the argument, but it does not follow that the court should routinely exercise its discretion in favour of doing so. On the contrary, the court should, in my view, be slow to allow a party to alter its case at such a late stage and should rarely, if ever, do so in a case where all facts potentially relevant to the correct determination of the new point have not been found by the tribunal below, or where to entertain the point would for some other reason be unfair to the other party.” (Miskovic v Secretary of State or Work in Pensions,  EWCA Civ 16 §134, Moore-Bick LJ).
“In summary, a party will not normally be permitted to raise a new point on appeal which could have been argued at first instance and which, had it been argued, would or might have affected the conduct of the hearing below in a material way. Permission will normally be given, however, where the new point is a 8 pure question of law which would not have affected the way the case was conducted below and, in particular, any evidence or its evaluation in those proceedings provided that the other party has sufficient notice to respond to the new point and has not acted to its detriment as a result of the failure to raise it earlier.” (Boxmoor Construction Limited v. HMRC  UKUT 91 (TCC), §24, Judges Sinfield and Powell).
“The basis of the Robinson doctrine is, as Lord Woolf MR said,  QB at p 945B-G, that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state's compliance with its international obligations. That observation was in Robinson itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point is "obvious", once it has in fact occurred to the court it must be open to the court to pursue it. I stress that that gives no general licence to the parties to reformulate their case once it arrives in this court." (Bulale v. Home Secretary  QB 536, §24).
- Three criteria for new points of law: adequate time to deal with point, no detrimental reliance, protected in costs
" Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service  EWCA Civ 24;  RTR 22 at )." (Singh v. Dass  EWCA Civ 360, Haddon-Cave LJ)
OR: only in exceptional cases
“It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.” (Jones v. MBNA International Bank  EWCA Civ 514, §52, May LJ).
- Usual practice is to allow pure points of law
" The circumstances in which a party may seek to raise a new point on appeal are no doubt many and various, and the court will no doubt have to consider each case individually. However, the principle that permission to raise a new point should not be given lightly is likely to apply in every case, save where there is a point of law which does not involve any further evidence and which involves little variation in the case which the party has already had to meet (see Pittalis v Grant  QB 605). (If the point succeeds, the losing party may be protected by a special order as to costs.) Sometimes a party will seek to raise a new point because of some other development in the law in other litigation, which he could not fairly have anticipated at the time of the trial. In some cases, the court may wish to take into account the importance of the point raised. Likewise, in the Paramount case cited by Mr Macpherson, one of the factors which influenced the Privy Council was the fact that it was in the public interest to allow a public body, which would otherwise end up liable to pay large sums, to raise on appeal a point of construction involving no new evidence." (Crane t/a Indigital Satelite Services v. Sky In-Home Limited  EWCA Civ 978)
“Mr Nugee QC, for the Halifax, justifiably complained that the point had not been taken on behalf of Mrs Collings. However, recognising that it was a pure point of law, he very properly did not object to its being taken even at that late stage. His difficulty was that he was not fully prepared to meet it. Accordingly, on 26th and 27th July we received further written submissions…” (Collings v. Lee 2000 WL 1480119, §14).
“Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it.” (Pittalis v. Grant  QB 605 at 611, Nourse LJ).
- Query whether cogent explanation for failure to take the point below required
" If the point is a pure point of law, and especially where the point of law goes to the jurisdiction of the court, an appeal court may permit it to be taken for the first time on appeal. But where the point, if successful, would require further findings of fact to be made it is a very rare case indeed in which an appeal court would permit the point to be taken. In addition before an appeal court permits a new point to be taken, it will require a cogent explanation of the omission to take the point below." (The Prudential Assurance Company Limited v. HMRC  EWCA Civ 376, Lewison LJ)
- Possible presumption against entirely new case
“(4) There is a general principle that litigation should be “resolved once and for all” and it will not generally be just “if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis”: Jones v MBNA per May LJ at .” (Whittalls Wines Ltd v. HMRC  UKUT 234 (TC), §20(4), Judge Thomas Scott - contrast with §20(3) confirming that pure points of law should generally be allowed).
- Point of law prompted by subsequent decision
“In any case, on balance it seems to us that TPL should be granted permission to amend. It was prompted to raise the point by a decision (viz. Mabbutt v HMRC) which post-dates the hearing before the FTT in the present case. The point, moreover, is essentially one of law and requires no evidence beyond that which was before the FTT and is available to us. In all the circumstances, it seems to us to be just, and not unfair to HMRC, to allow TPL to raise the issue in the context of the present appeal and that we should exercise our discretion to allow the proposed amendment.” (GDF Suez Teeside Limited v. HMRC  UKUT 68 (TCC), §44, Newey J and Judge Bishopp).
- Higher court does not want to construe legislation on the basis of an incorrect concession
“Although PBL made its land transaction returns and conducted its case before the FtT on the basis that s.71A did apply, Mr Gammie has not placed much reliance upon any particular prejudice that would be caused by its change of position. The applicability or not of s.71A is a pure question of statutory interpretation and does not require further evidence of any kind. It was for HMRC to consider as part of their enquiry how s.71A operated and decide which of the returns required amendment. It would also be undesirable for this Court to be asked to construe the relevant sections of Part 4 on the basis of a concession which in my view was wrongly made.” (Project Blue Ltd v. HMRC  EWCA Civ 485, §37, Patten LJ)
New points that could potentially be affected by evidence
- General rule: no new points except on questions of law which no evidence could alter
" In other words, the respondents now seek to advance an entirely new case which has never previously been raised in these proceedings. The respondents have never previously sought to argue that the Charter confers on them an entitlement to universal credit. While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined. (See the observations of Lord Reed and Lord Hodge in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs)  UKSC 47;  3 WLR 1369 at paras 89-93 and the cases there cited.) I would add that while the CJEU in CG drew attention to the possible relevance of the Charter to the particular circumstances of that case, it is immediately apparent from para 92 of the judgment of the CJEU that CG’s situation was materially different from that of the respondents to the present appeal." (Fratila v. Secretary of State for Work and Pensions UKSC 53)
"...If Ground 2 is a new ground of appeal, the Court should take the approach outlined in Singh v Dass  EWCA Civ 360 per Lord Justice Haddon-Cave at - (approved in Notting Hill Finance Ltd v Sheikh 2019] EWCA Civ 1337;  4 WLR 146):
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad  EWCA Civ 2 at  and )...
 That, then, raises the question whether the Taxpayers would be prejudiced if Ground 2 were introduced at this stage, either because they would wish to rely on evidence to deal with the point, or because the hearing would have been conducted differently if the point had been raised before the FTT (see Singh v Dass at ). If there is no prejudice in these terms, and the point is one of pure law, it is hard to see any good reason why the point should not be run at this stage (noting that the protections suggested in Singh v Dass at  are or can all be put in place)." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
“It is a long-standing and fundamental principle of this court that a new point of law which was not presented to the court of trial may be raised on appeal, but normally only where there is no possibility of any injustice occurring by reason of the fact that, if it had been raised at trial, it might have affected the conduct and in particular the evidence or its evaluation in those proceedings …” (Lowe v. W Machell Joinery Ltd  EWCA Civ 794, §81).
“The general rule of every appellate court is not to allow a new point to be raised except on a question of law which no evidence could alter.” (Moriarty v. Evans Medical Supplies Ltd 37 TC 540 at 588, Lord Denning).
" We considered whether we should, as [the taxpayer] submitted, grant permission for the new point to be argued but concluded that we should not. The point was not a pure issue of law. It would be one reliant on evidence. As [HMRC] submitted, whether the frustration would have been foreseen, what amounts would have been recoverable under s1(2) of the 1943 Act (in relation to which the party from whom recovery was sought could retain expenses it incurred, in or for the purpose of performance of the contract, thus raising the question of whether any such expenses had been incurred) were factual matters. The evidence advanced and the testing of that might well have taken a different turn if the issue had been exposed at the outset. It would also need to be established the sanctions led to frustration of the contract. The fact that there was evidence that there were sanctions and that that was not challenged does not address this gap." (Qolaminejite v. HMRC  UKUT 118 (TCC), Judge Raghavan and Judge Andrew Scott)
“It appears to us that [HMRC are] correct when he says that the conduct of the appeal before the FTT and, in particular, the evidence adduced would have been different if the issue [of whether the assessments were in time] had been raised. Applying the approach taken in Lowe v W Machell Joinery Ltd and Tanjoukian, we refuse permission to appeal on this ground.” (Massey and Massey t/a Hilden Park Partnership v. HMRC  UKUT 405 (TC), §106, Rose J and Judge Sinfield)
“There is a strong public interest in finality in litigation of all kinds, and one facet of this is that parties are not normally permitted to raise on appeal arguments which they could perfectly well have run below, but for whatever reason failed to do so. Where the new point is a pure question of law, and where its admission on appeal would not occasion any injustice of the type referred to by Rix LJ in Lowe v W Machell Joinery Ltd  1 All ER (Comm) 153 at , the interests of justice will normally favour the grant of permission to argue the point. But the position is very different where the conduct of the trial below either would, or might, have been significantly different if the new point had been taken. In those circumstances, the balance will nearly always come down the other way and permission to argue the new point will be refused.” (Tanjoukian v. HMRC  UKUT 361 (TCC), §58, Henderson J).
“We rather imagine that the application to appeal would have been dismissed on the basis that just as the suppliers would have been out of time to recover wrongly paid VAT in the amounts in excess of 5%, so HMRC would be out of time to raise further points in opposition to the decision of the Tribunal that the Appellant had won her appeal to recover £40,233.18.” (Pearson v. HMRC  UKFTT 890 (TC), §12).
- Dependent on factual basis of first hearing
“the issue raised in this respect is so far away from the facts of this case, as presented before both tribunals below, that we should not grant permission to appeal on the amended ground.” (Sub One Ltd v. HMRC  EWCA Civ 773, §101).
“the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.” (re Cowburn (1882) 19 Ch D 419 at 429, Sir George Jessel MR).
“It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.” (Jones v. MBNA International Bank  EWCA Civ 514, §38, Peter Gibson LJ).
“The test is that the court must be satisfied that the other party will not be at risk of prejudice if the new point is allowed because it might have adduced other evidence at trial, or otherwise conducted the case differently. Arden LJ in Crane [ EWCA Civ 978] said that permission to raise a new point should not be given lightly unless there is a point of law which does not involve any further evidence and which involves little variation in the case which the party has already had to meet.” (Manduca v. HMRC  UKUT 262 (TCC), §40, Rose J).
“We consider that it is in the interests of justice that all the issues relevant to the VAT liability of the supplies should be explored and dealt with in the appeal provided that we are satisfied that there would not be any injustice or prejudice to Astral. In our view, allowing HMRC to raise the further arguments at this stage would not cause injustice or prejudice to Astral. [Counsel for the taxpayer] accepted that the new arguments would not have changed the evidence that Astral presented to the FTT. He submitted that the conduct of the case would have been different but we consider that the only difference would have been that Astral would have made further submissions that the reduced rate applied and that ‘construction of a building’ was not restricted to construction of a whole building. As in the Paramount Export case, these are questions of law on which no further evidence could have been called. As there is no dispute about the facts, Astral is able to make its submissions in relation to the new arguments before us. The new arguments are short points and Mr Brown did not suggest that he was not prepared to meet them.” (HMRC v. Astral Construction Limited  UKUT 21 (TCC), §34, Judges Sinfield and Powell).
“There is a strong public interest in finality in litigation of all kinds, and one facet of this is that parties are not normally permitted to raise 25 on appeal arguments which they could perfectly well have run below, but for whatever reason failed to do so. Where the new point is a pure question of law, and where its admission on appeal would not occasion any injustice of the type referred to by Rix LJ in Lowe v W Machell Joinery Ltd at , the interests of justice will normally favour the 30 grant of permission to argue the point. But the position is very different where the conduct of the trial below either would, or might, have been significantly different if the new point had been taken. In those circumstances, the balance will nearly always come down the other way and permission to argue the new point will be refused.” (Tanjoukian v. HMRC  UKUUT 361 (TCC), §33).
- Application of Ramsay to different part of tax avoidance scheme question of law
" The Taxpayers' third point involves a dispute about whether it is open to this Court to apply a Ramsay analysis to a part of the arrangements which was not directly challenged before the FTT, in circumstances where the FTT made findings about the purpose and nature of the arrangements considered compositely but did not make findings specific to the part of the arrangements now under challenge. That is, in my view, a dispute of law, not fact, and it is one which the full Court should determine. This Court would only go on to consider the merits of Ground 2 if satisfied of HMRC's case that it was open, as a matter of law, to this Court to do so." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
- Heavy burden to show case could not have been conducted differently in any material respect as regards the evidence
"A party who seeks to advance a different case, in circumstances such as this, bears a heavy burden as regards showing that the case could not have been conducted differently, in any material respect, as regards the evidence. In a case such as Pittalis v Grant, that task could readily be discharged, since there was no doubt about the relevant facts and the dispute was as to a matter of law. In the present case the change of position would not be so great as it was inJones v MBNA. But in my judgment the court cannot properly be satisfied, in this instance, that the case would not have gone in a materially different way as regards the evidence if Mr Brockman, instead of nailing his colours exclusively to the mast of fraud, had told the judge that he had two alternative cases: one of fraud and the other of breach of fiduciary duty by Mr Broad in procuring a prohibited loan to himself. It is clear that some questions would have been asked in cross-examination of Mr Broad in addition to those which Mr Goodman did ask. Whether the answers would have influenced the judge, and if so how, is a matter of speculation. It is particularly difficult to be sure of that given, on the one hand, the fact that the parties were, for most of the trial, in person and, on the other, the resulting burden on the judge of ensuring that he and the parties understood exactly how the case was being put and that they appreciated what matters of evidence might need to be covered as a result.” (Mullarkey v. Broad  EWCA Civ 2, §49).
Party would have sought to cross-examine
"...If the new point on estoppel had been raised, the appellant would undoubtedly have sought, and took advantage of, the opportunity to cross-examine the HMRC officer who gave evidence on behalf of HMRC. I am not equipped to consider whether that would have yielded any relevant findings either way but the crucial point for present purposes is that I am satisfied the FTT’s determination would have been conducted differently with regards to the evidence." (Paul v. HMRC  UKUT 116 (TCC), Judge Raghavan)
Point requiring further investigation of facts permitted on the basis that case could be remitted
“We agree with Ms Thelen that the third ground would require an assessment of the nature of the building both before and after the works and that, because the point was not raised, the evidence needed to make that assessment was not fully investigated by the FTT. We did not regard this objection as being sufficiently serious in the circumstances of this case to compel us to refuse to hear argument on the point. If necessary, we could remit the case to the FTT to hear further evidence on this issue…We consider that it is in the interests of justice that all the issues relevant to the VAT liability of the supplies by Boxmoor should be explored and dealt with in this appeal. In our view, allowing Boxmoor to raise the further arguments at this stage would not cause injustice or prejudice to HMRC which, as Ms Thelen’s comprehensive submissions showed, had sufficient notice to be able to respond.” (Boxmoor Construction Limited v. HMRC  UKUT 91 (TCC), §§31…32, Judges Sinfield and Powell).
Opposing party denied opportunity to call expert evidence
“Whether it does or it does not is a matter of the law of the BVI, and if the issue had been raised at trial the Respondents would have had an opportunity to adduce expert evidence on the question of the meaning and effect of the BVI Business Companies Act 2004. They were denied that opportunity because of the way in which the Appellants framed their case. Therefore, I again consider that it would be unfair to allow the Appellants to introduce this argument for the first time on appeal.” (Albert Skip Hire Ltd v. Gelley  EWCA Civ 1172, §69).
- Rule applies to successful party wanting to raise new arguments to defend appeal
" While HMRC are correct that the facts of the above cases are restricted to situations where the appellant sought to run a new point, I reject the contention that this is of significance as far as the statement of principle in those cases are concerned.
 In agreement with the appellant, I consider the propositions advanced are broader and apply to both parties. The underlying rationale expressed for the principle in Jones, that “litigation should be resolved once and for all”, for all the reasons set out in the full extract of  below, would apply equally to both parties in an appeal..." (Paul v. HMRC  UKUT 116 (TCC), Judge Raghavan)
- Must be some indication of the area of potential additional evidence
" For my part, I find it hard to see what evidence Bexley could usefully have put forward on the question whether Ms Uduezue would have acted differently had she been informed of the effect of section 195A(2) of the 1996 Act. The issue would, on the face of it, have been outside Bexley's own knowledge. Even assuming, however, that Bexley had somehow been able to demonstrate that Ms Uduezue would have behaved in just the same way despite her attention being directed to section 195A(2), Norton indicates that that would not have mattered..." (Zaman v. London Borough of Waltham Forest  EWCA Civ 322, Newey, Asplin, Nicola Davies LJJJ)
"...Would the new point necessitate new evidence? The straightforward answer, if that question is taken at face value, and to be addressed to the position now, as opposed to imagining what the position might have been if the point was before the FTT, is no. The burden is on HMRC to establish the elements of the estoppel. Their stated position now is that all the necessary evidence was before the FTT. The appellant does not identify what areas of evidence that would be necessary for him to respond to the estoppel point. Similarly, as regards the formulation from Notting Hill Finance, which asks whether there is evidence that could have been adduced, “which by any possibility would prevent the point from succeeding”, no such evidence has been identified. Nor is it clear what the nature could be of any documentary evidence that might have been available at the time of the FTT hearing but which is now not. I acknowledge the appellant’s point that they should not be put to the cost and trouble of ascertaining what further evidence might have been adduced. The difficulty though, is that without at least some more specific indication of the nature and subject area of the potential evidence, the tribunal has no reliable basis to be satisfied that new evidence is necessary, or that even “by any possibility” there is any evidence the appellant would have adduced which would have stopped the estoppel point succeeding.
 On the face of it, I can see that, as it appears was the case in Tinkler, many of the relevant elements, even if they involve subjective matters on the part of each party to the estoppel, might nevertheless be inferred by considering the train of correspondence between HMRC and the appellant’s representatives over the relevant period. However, it is at least possible that some aspects would not. For example, in Benchdollar principle (3), whether HMRC in fact have relied upon the common assumption, to a sufficient extent, rather than HMRC’s own independent view of the matter might involve 8 evidence of the HMRC’s internal practice and processes at the relevant time where it is not clear, certainly from the FTT’s findings at least, that such specific evidence on the point was led before the FTT. For present purposes, though, it matters not whether HMRC’s position turns out to be right, just that, as things stand, no new evidence is required if HMRC run the point in the way they propose to." (Paul v. HMRC  UKUT 116 (TCC), Judge Raghavan)
- Lost opportunity to run estoppel argument
"However, [HMRC's] submission was effectively inviting us to allow him to have his cake while eating it, an invitation which we decline. More importantly, this was not an argument which HMRC appear to have raised before the FTT, in which case there can have been no error of law by the FTT in failing to consider it. Insofar as the submission was asking the Tribunal to permit a new argument to be run in this appeal, we refuse such a request. If it had been argued before the FTT, Shinelock would have had the opportunity to respond to it in the proper forum, namely before the FTT, including in relation to matters of evidence relevant to whether HMRC might be estopped from now taking the point. We therefore reject this submission." (Shinelock Limited v. HMRC  UKUT 107 (TCC), Judge Thomas Scott and Judge Greenbank)
- New point permitted by assuming facts in favour of respondent
" In a different context, Mr Peacock submitted that sections 11 and 61 form the "two bookends" of the capital allowances scheme. The Court would wish to have both of those bookends in view when it determines this appeal substantively. For that and other reasons, it is desirable for the full Court to hear argument on Ground 2.
 Given its late arrival, however, Ground 2 should not prejudice the Taxpayers. I am not persuaded that there is any prejudice to the Taxpayers in so far as Ground 2 raises issues of law. In so far as it may raise issues of fact:
a. the prejudice of not having called evidence from witnesses to attest to their subjective purpose in paying the Option Price should be mitigated by this Court assuming that subjective purpose in the Taxpayers' favour;
b. the asserted prejudice of not having put documents relevant to that issue before the FTT to support the Taxpayers' submissions on purpose has not been pressed before this Court, but if the Taxpayers, on reading this judgment, consider that there are documents which should be before the Court but which were not before the FTT, the Taxpayers can make an application which this Court will consider.
I would grant HMRC permission for Ground 2 on terms that the Court will assume the Taxpayers' subjective intention in paying the Option Price was to reacquire the Assets for use in their businesses." (Altrad Services Ltd v. HMRC  EWCA Civ 474, Whipple, Newey LJJ)
- Combined application to admit new evidence and new ground of appeal refused
" The new ground is not a pure point of law. It involves new evidence which was not available to the FTT. We are satisfied that if the Retainer Letter had been available at the hearing before the FTT then it would have affected the evidence and questioning of Mr Ketley and Mr Abrol. The following issues at least would have likely been canvassed in their oral evidence:
(1) Why did Mr Ketley and Mr Abrol make no mention in their witness statements as to the express terms of the Retainer Letter?
(2) Why did it take Mr Abrol until April 2016 to identify that a late notification could be made and in what circumstances did he identify the possibility of making a late notification?
(3) Why did Mr Abrol not contact HMRC prior to 15 August 2016?
(4) What was Mr Ketley’s understanding of what Mr Abrol was doing in relation to persuading HMRC to retrospectively allow protection in the period February 2016 to July 2016? 75. In our view the effect of granting the application to adduce the Retainer Letter and to amend the grounds of appeal in reliance on the Retainer Letter would be to allow Mr Ketley to re-open issues which should have been litigated before the FTT on the basis of evidence which should have been put before the FTT." (Ketley v. HMRC  UKUT 218 (TCC), Judge Cannan and Judge Greenbank)
Withdrawing a concession
- General principles
“(i) The resiling party has the burden of establishing that the previously forgone point should be raised.
(ii) It will be harder to raise a point which has been expressly conceded.
(iii) If taking the point would risk causing prejudice to the other party, in the sense that it might have been deprived of the opportunity of dealing with the case differently in court below, then it is unlikely that resiling will be allowed. The greater the risk, the less likely it is that it will be allowed.
(iv) There is a low threshold of risk for these purposes (… “any possibility”..).
(v) The burden of establishing no risk is on the party who wishes to withdraw the concession, and the other party should have the benefit of any doubt in this area.” (BT Pension Scheme Trustees Ltd v Secretary of State for Business, Innovation and Skills  EWHC 2071 (Ch), §44, Mann J)
- Not allowed to blow hot and cold
“We have clearly found that there is no such change of circumstance in this case. It therefore appears to us that the attempt to resile from the concession is an attempt to “blow hot and cold” on the question as to whether Clear wished to challenge HMRC’s factual findings on which it had expressed its position very clearly, on which the FTT relied in making the Decision and on which HMRC has clearly strongly relied in believing that there was finality on that point. We would therefore have refused permission to resile from the concession.” (Clear plc v. HMRC  UKUT 347 (TCC), §72, Judges Herrington and Aleksander).
- Withdrawal permitted where concession made after other party had made their submissions
" The parties referred to a number of authorities, but it is, I think, sufficient for our purposes to refer to a dictum of Nourse LJ in Pittalis v. Grant  QB 605 at page 611 (cited with approval by Longmore LJ in Brown-Quinn v. Equity Syndicate Management Ltd.  1 WLR 1740 at paragraph 15). There, Nourse LJ said that a party was bound to take a point at first instance so as to enable the other party to give evidence: "But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court". Though the point in this case is one of fact, it is bound up with a point of law as to the implication of contracts, and the relevant evidence is entirely documentary.
 Moreover, I do not think that Services has been able to demonstrate any prejudice that would be caused by UK's very late change of position in this court. Mr Bompas argued almost the whole of the case below on the basis that no such concession had been made, and was not able to submit to us that, had he known, he would have wanted to adduce more documents either to the judge or to us. We gave him an opportunity to put in any more documents that he thought we should see and he did so after the hearing. I shall refer further to these documents in due course. It is true that Mr Pascoe's skeleton before this court repeated the concession, but Mr Bompas has not submitted he cannot properly deal with the change of position. I do not see why it was any more likely that Services would have wished to sue Holdings had the concession not been made. The limitation period has still not expired. Nor do I think it any more likely that a settlement would have been reached absent the concession. In short, there is no risk that Services will be prejudiced and no risk that it would be deprived of the opportunity of dealing properly with the new point on appeal. Services was in fact able to and did argue the new point below right up to its oral reply submissions.
 All in all, it seems to me that if UK is to be given a fair opportunity to present its case on appeal as it wishes, it should be allowed to withdraw the concession, which anyway seems to have been based on a very flimsy factual basis, since there was no evidence of Holdings having done anything at all, in relation to the seconded staff, after it entered into the Services Agreement. The circumstances in which the concession was made seem to me to make it all the more important that it should be withdrawn if the risks that have been mentioned are not, as I think they are not, actually realised." (Heis v. MF Global UK Services Limited  EWCA Civ 569, Vos LJ)
- Same rules apply to a change of tack
“It seems to me that, whether or not it involved a concession, it clearly involved limiting the case as put to one specific basis, and the same rule as applies to the withdrawal of a concession must apply to a change in tack such as now proposed, whether or not that is correctly viewed as withdrawing a concession.” (Mullarkey v. Broad  EWCA Civ 2, §29).
- No special rule for HMRC
" Secondly, HMRC point to the ‘venerable principle’ that there is a public interest in the correct amount of tax being collected and to the requirement imposed on the tribunal under section 50 TMA to arrive at the right amount of tax. They argue that these principles combine to brush aside any procedural problems arising from them changing their case. I agree those principles are important - that is why I would dismiss the Appellants’ appeal on Issue 3. But those principles cannot be pushed too far. They do not entitle HMRC to change their case at will and resile from concessions that were common ground before the UT. It was clear at the hearing that Mr Peacock had had no warning of the significant shift of position contained in the HMRC speaking note and his submissions on the first day of the hearing were directed at the agreed list of issues. Mr Tallon then argued a different case leaving Mr Peacock to respond as best he could in the short time left for his reply at the end of the hearing. It would not be fair on the Appellants for HMRC to be allowed to re-focus the case in this way."(Investec Asset Finance Plc v. HMRC  EWCA Civ 579, Rose LJ)
Identifying the terms of the concession
In the absence of a transcript, rely on the Judge
" We were provided with the Judge’s hearing note in relation to the concession and it does not take matters any further than what is recorded in the Decision. In the circumstances, it seems to us that, absent a transcript of the hearing, we have little choice other than to accept that the concession was made in the terms recorded in paragraph  of the Decision, i.e. that it was being conceded that the tax was due and payable as a matter of law.
Court retains a discretion even if case would have been conducted differently
Permission to withdraw concession re time limits granted in relation to a GLO with wide consequences
" We consider this challenge to be the most difficult to determine of the claimants’ preliminary challenges to the scope of this appeal. With hindsight, there is no doubt that it would have been better if the Revenue at the start of the second phase of the FII Group Litigation had reserved their right to mount the challenge which they seek to make in this court. It is important that there be discipline in the conduct of actions which are the subject of Group Litigation Orders and it is important that there be finality in the determination of issues raised in such actions. An appellate court, in the interests of justice, will normally seek strenuously to avoid an outcome which results in the parties, who have already gone to trial on the quantification of a claim, having to amend their pleadings and to adduce further evidence to apply its ruling on a new issue of law to the facts of their case. In a normal litigation, the need for a re-trial would be a strong and normally determinative pointer against allowing a party to withdraw a concession which had influenced the way in which a litigation had been conducted.
 There are nonetheless several factors which point in the other direction which make it appropriate not to apply the normal rule. The court is being asked to exercise a discretion not in an individual case but in the context of a group litigation order, a procedural phenomenon which did not exist when Lord Herschell wrote his speech in The Tasmania (1890) 15 App Cas 223. One must also have regard to the nature and subject matter of this group litigation and the manner in which it has been conducted. It is not suggested that the BAT claimants have not had time to deal with the legal challenge. We do not accept that, as the FII Group Litigation progressed, there was a complete demarcation between liability and quantum in the first and second phases: the BAT claimants accept that in the second phase, 19 of the 29 issues related to quantification. The others did not. Issue P, which became Issue 28, remained to be resolved and Issue 17 (namely whether the tax credits given to shareholders for ACT prevented the Revenue from being enriched) raised an issue of principle which could have had a material effect on the quantification of the claims."
 We also consider that the points which we have made in para 78 above in relation to the abuse of process claim are both relevant and of great weight when considering the exercise of this discretion. The nature of the claims, depending as they do on a developing area of law, means that it is important that this court address the legal questions which the Revenue wish to raise. The size of the claims and their impact on the public purse are also relevant considerations, as it would be wrong to uphold such claims if they are based on an incorrect understanding of the law. As we have said, even if the Revenue’s challenge to the application of section 32(1)(c) succeeds, the claimants will have claims of substantial value. The legal question is also of great importance to other claimants outside the FII Group Litigation, including claimants in the litigations to which we have referred in paras 5-6 above, who also have claims of high value.
 In the end, the task for the court is to make an evaluation of what justice requires in the circumstances of this group litigation. We are persuaded for the reasons set out above that we should allow the Revenue to withdraw their concession and to amend their pleadings to remove the admission on which the test claimants found." (Test Claimants in FII Group Litigation v. HMRC  UKSC 47)
Re-raising point that were lost and dropped at intermediate appeal stage
" Notting Hill Finance and the line of cases to which it referred were not concerned with a case in which a point had been taken at first instance but dropped on the first appeal. That situation is referred to in the decision of the Privy Council in Ahamath v Umma  AC 799. In that case, giving the advice of the Board, Lord Blanesborough said:
"It must only be under very exceptional circumstances that an issue dropped in the intermediate Court of appeal, and for that reason not dealt with or referred to by that Court, can be revived before this Board."
 HMRC's skeleton argument in this court concentrated on the importance of the point, and the assertion that it is a pure point of law; both of which may well be true. But what was strikingly absent, despite the UT's observations in refusing permission to appeal, was any explanation why the point was not argued before the UT and why HMRC have now decided to change tack. This is not, therefore, a case in which a point of law has occurred to a party for the first time; still less one that goes to the jurisdiction of the UT to make the decision that it did. HMRC must have been well aware of the point and must be taken, for whatever reason, to have decided to abandon it in the appeal to the UT. Although Ms Barnes, for HMRC, argued that Ampleaward would suffer no prejudice if we were to allow the point to be revived, it was not clear that was in fact the case.
 In my judgment it would have been unfair to Ampleaward to permit HMRC to revive a point on which it fought and lost in the FTT; and apparently abandoned in the UT. Ampleaward was reasonably entitled to conclude that that point had been definitively dealt with. If (as HMRC assert) it is an important point on which many other cases depend, then one of those cases may be the suitable vehicle for testing the point.
 Having heard argument we decided to refuse HMRC permission to revive this argument; and consequently refused permission to appeal on this ground." (HMRC v. Ampleaward Limited  EWCA Civ 1459)
Late application to raise new issue on appeal
- Apply relief from sanctions case law
" Applying those principles and in all the circumstances we decided that the appellant’s application to amend its grounds of appeal should be refused. The application to amend was made very late, and there is a heavy burden on the appellant to show why it ought to be allowed. The appellant relied on the fact that Mr Mantides was acting as a litigant in person before the FTT and when he initially filed his application for permission to appeal. However, as HMRC pointed out he was represented by counsel by at least June 2020 when a reply drafted by Mr Paulin was submitted in relation to HMRC’s response to the appellant’s notice of appeal.
 The appellant has therefore been legally represented for over a year, and could and should have made its application much earlier. There has been no adequate explanation as to why the application was made so late in the day; indeed Mr Paulin frankly accepted that it ought to have been made earlier. If the application were allowed, HMRC would have to deal with a much wider argument than the grounds on which permission was given. We did not accept Mr Paulin’s argument that issues in relation to the new ground of appeal had already been “fully ventilated” in the parties’ written arguments. The grant of permission would therefore inevitably mean the appeal being postponed in order to avoid injustice to HMRC. While we have decided to postpone consideration of Ground 3 to a later date, for the reasons which follow, the other grounds of appeal can properly be heard now, and we do not consider that they should be adjourned solely to allow a new argument to be raised at the last minute." (George Mantides Limited v. HMRC  UKUT 205 (TCC), Bacon J and Judge Cannan)
" We structure our consideration by reference to the framework suggested in Denton v TH White  EWCA Civ 9106 (summarised in Martland v HMRC  UKUT 178 (TCC) (at  to ) rather than, as HMRC suggested, the one suggested in Data Select v HMRC  STC 2195 at  (in summary: the purpose of the time limit, the length of delay, the impact on the parties of respectively granting or refusing the application). Accordingly, we consider 1) whether the breach is serious or significant 2) the reasons for the default 3) all the facts and circumstances taking into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected."(Adelekun v. HMRC  UKUT 244 (TCC), Judge Raghavan and Judge Brannan)
6 months is serious delay
" Even if we put aside the question of whether the application ought properly to have been first made to the FTT and assume that the new ground could be dealt with in a Respondents’ notice, we consider the delay of 6 months is serious and significant. While we accept that some of the period of delay, that between March and May, is accounted for by disruption related to COVID restrictions, the explanation for the preceding period is without merit. To the extent HMRC thought there was an error of law, it ought to have been apparent to HMRC from the date on which the decision was issued. It was not dependent on the stance the appellant took." (Adelekun v. HMRC  UKUT 244 (TCC), Judge Raghavan and Judge Brannan - application rejected)
- Take into account reasons why new grounds not included in application for permission
“Secondly, the decision must take into account all the relevant facts and circumstances, including the reasons why the new grounds were not included in the application for permission to appeal.” (Whittalls Wines Ltd v. HMRC  UKUT 234 (TC), §22, Judge Thomas Scott - change of Counsel not normally a factor in favour of granting permission - §64).
- Point closely bound up with existing grounds of appeal
" The position on Ground 2 is different. We considered that the issue to which the amendment or clarification of that ground of appeal was directed was already covered by Ground 2 and Ground 3: inevitably, in order to address whether the point identified in Ground 2 gives rise to an error of law as argued in Ground 3 it will be necessary to consider the legal test for mutuality of obligation. That being the case, we did not consider that the appellant required permission to amend Ground 2. Alternatively, for the same reasons, in so far as an amendment was necessary as a matter of form, we would have given permission." (George Mantides Limited v. HMRC  UKUT 205 (TCC), Bacon J and Judge Cannan)
" We saw considerable force in Mr Stone’s objection and we deprecate the tendency to “expand” grounds of appeal in an appellant’s skeleton argument and in oral argument when the points concerned could clearly have been made at the time that the original application for permission to appeal was made Nonetheless, as regards Grounds (1) to (3) above, we have taken the view that the additional points raised by Mr Collins were 15 very closely bound up with the issues on which permission had been granted and therefore involved little variation in the case that HMRC has already had to meet. Mr Stone did not object with any vigour to the points being argued and he was clearly adequately prepared to deal with them. There would therefore be no prejudice to HMRC if we permitted the new points to be argued. We have therefore decided, exceptionally, to exercise our discretion to admit these additional grounds of appeal.
75] [The same could not be said, however, in relation to Ground (4) above. In fact, Mr Collins appeared to have abandoned the argument that Mr Lee was not “part and parcel” of NBS’s operations. No mention of this argument was made in his skeleton argument or in his oral submissions. Instead, he substituted a wide-ranging argument based on other provisions of the contractual arrangements being inconsistent with a contract of employment. This is, effectively, the third limb of the three tests in Ready Mixed Concrete – a decision which we shall discuss in greater detail below.
 The need for the statutory requirements to be observed in obtaining permission to appeal from the FTT to this Tribunal has recently been emphasised by Rose LJ in HMRC v SSE Generation Ltd  EWCA Civ 105 at -. It is clear that permission to appeal for Mr Collins’ more wide-ranging arguments was not granted and Mr Collins made no application to amend Northern Light’ grounds of appeal. The new grounds were not closely related to the grounds on which permission had been granted. Accordingly, we refuse to consider those arguments advanced in relation to the other contractual provisions." (Northern Light Solutions Ltd v. HMRC  UKUT 134 (TCC), Judge Herrington and Judge Brannan)
No conflict with higher authorities if the point is not properly before the tribunal on appeal
" The UT will resolve the issues determined to be before it. If the new point is not admitted, even it is assumed the relevant facts in the current appeal and in Tinkler are materially the same, there will be no conflict. The Supreme Court’s decision on estoppel will not be binding if this UT case turns out not to be a case in which the estoppel point is argued. There will be no difficulty regarding the precedent set for FTT cases. The Supreme Court decision will continue to be binding, as appropriate, in relation to cases where estoppel by convention falls to be determined. Any UT decision in this matter, if it excluded the estoppel point, would not. That different outcomes might be reached on similar facts follows from the different issues that fall within the scope of determination in the respective cases. That in turn follows from what issues the parties raise or the court or tribunal allows them to raise. While there may be circumstances where, having squared any issues of procedural fairness to the parties, the UT might raise points of its own volition, no explanation or authority is cited by HMRC for why the UT would raise the estoppel point here if HMRC did not." (Paul v. HMRC  UKUT 116 (TCC), Judge Raghavan)
Special costs order where party succeeds on point not argued below
“Where the new point succeeds, it may be appropriate to make a special order as to costs to reflect the fact that the appeal might not have been necessary, and costs might have been avoided, if the successful party had raised the new point at an earlier stage.” (Boxmoor Construction Limited v. HMRC  UKUT 91 (TCC), §24, Judges Sinfield and Powell).