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N20: No case to answer
Electing to call no evidence
“I also accept that a litigant who has the right to require the other party to begin can take stock at the end of his opponent's case and decide at that stage whether to call evidence or not, and if so, which witnesses to call. This is simply a consequence of the way in which civil litigation is ordinarily conducted in this country. If the party going second is confident, once all his opponent's evidence has been called, that the case against him has not been established, he can not only shorten the case and save time and money by electing not to call any evidence, but he can by doing so also avoid the risk that by exposing his own witnesses to cross-examination, they might give evidence bolstering his opponent's case. I accept that even though this opportunity is not in my experience very often made use of, it can in appropriate cases confer a useful procedural advantage on the party going second.” (Hargreaves v. HMRC [2014] UKUT 395 (TCC), §24(3)).
Issue by issue
“Even though the appeal raises other issues, Mr Hargreaves could at the end of HMRC's case, if HMRC open, submit that there was no case to answer on the conduct/officer condition. If he won on that, there would be no valid DA. If he lost on that, he could then call his evidence on the substantive issues in his appeal, including section 29(2).” (Hargreaves v. HMRC [2016] EWCA Civ 174, §42, Arden LJ).
“Kythira may well be authority for the proposition that Ms Addo must agree not to put forward any evidence on the discovery issue as the price of making a submission that she has no case to answer on that issue. However, I am not satisfied that Kythira necessarily requires Ms Addo to forgo her right to rely on any evidence at all (including on matters on which she has the burden) if she wants to submit that HMRC have not discharged their burden on the discovery issue.” (Addo v. HMRC [2018] UKFTT 93 (TC), §20, Judge Jonathan Richards).
“We concluded that while the Appellant might be put to his election in respect of the s 29 issue that should not preclude him from calling evidence in respect of the substantive issue, as made clear in the Court of Appeal decision in Hargreaves…” (Anderson v. HMRC [2016] UKFTT 565 (TC), §88).
Still required to plead case, serve evidence and disclose documents in advance of hearing
“Of course he would have to plead his case and comply with any directions as to the service of witness statements and disclosure of documents but there is no suggestion that Mr Hargreaves could have some evidence or documents that he could hold back from HMRC in the course of its inquiry or otherwise.” (Hargreaves v. HMRC [2016] EWCA Civ 174, §42, Arden LJ).