© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
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M4a. Third party access to documents
PROVISION OF DOCUMENTS TO THIRD PARTIES​​
- CPR rule
"A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person." (CPR 5.4C(2))
Records of the court are documents it keeps for its own purposes
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"[23] The “records of the court” must therefore refer to those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court. It cannot depend upon how much of the material lodged at court happens still to be there when the request is made." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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- Common law power
"[34]...There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.
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[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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“The Guardian News & Media case also confirms that, subject to any statutory provision, the courts have an inherent jurisdiction to determine how the open justice principle should be applied. It follows that, even in the absence of a relevant statutory power, unless they are precluded by statute, the courts have power at common law to grant access to documents if the open justice principle requires this.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §9, Leggatt J)
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- Person seeking access must explain how granting access will advance the open justice principle
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"[45] However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so.
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"[47]...In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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"[7] In summary, it follows from Moss that the FTT should approach consideration of an application by a third party for access to documents by first considering why access is sought and whether disclosure will advance the open justice principle. It is for the person making the application to show a good reason for seeking access. There is no presumption in favour of disclosure (contrary to what I said in Aria Technology Ltd v HMRC [2018] UKUT 111 (TCC) at [25]) and access needs to be justified in every case. That may be done by the third party explaining how it will allow them to follow the case and/or understand the reasons why the tribunal decided the case in a particular way. As Coulson LJ observed in Moss, that is a low threshold and in many or most cases it will easily be cleared, particularly where what is being sought are copies of skeleton arguments or written submissions which are central to an understanding of the case." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Balancing exercise
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"[45]...As was said in both Kennedy, at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be “the purpose of the open justice principle and the potential value of the information in question in advancing that purpose”.
[46] On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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- Consider practicality and proportionality of the request
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"[47] Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier..." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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- Query whether there is a presumption of access where placed before a judge
"[44] It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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"In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. ... I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others." (R (oao Guardian News and Media Limited) v. City of Westminster Magistrates’ Court [2012] EWCA Civ 420, §85).
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“This decision [in Guardian News and Media Limited] establishes that, once documents have been placed before a judge and referred to at a public hearing, access to the documents should be permitted other things being equal. But it does not remove the need for the court to consider the particular circumstances, including the nature of the documents in question, their role and relevance in the proceedings and, importantly, the purpose for which access to the documents is sought.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §21, Leggatt J)
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- Generally no access to witness statement before trial
“But there is no corresponding right or reason why a member of the public or press should be entitled to obtain copies of witness statements before they have become evidence in the case. Conducting cases openly and publicly does not require this. Nor is it necessary to enable the public to understand and scrutinise the justice system. The advance notice that a witness statement provides of what evidence its maker, if called as a witness, will give is provided for the benefit of opposing parties (for the reasons I have indicated), not the public. The trial is an event which must (save in exceptional circumstances) be conducted in public so that justice can be seen to be done. But preparations by the parties for the trial for the most part are not, and do not need to be, public.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §15, Leggatt J).
Reason for caution: statements may contain defamatory content
“Yet if such [defamatory] statements were made public pursuant to an order of the court, a person who complained that a statement contained assertions that were untrue and defamatory of him would have no recourse against the author of the statement, who would not be responsible for its publication, nor against the publisher (who would be protected by qualified privilege unless the publication was malicious) and at the same time would also lack the opportunity for rebuttal and correction provided by the trial process. That does not strike a fair balance between the relevant interests. In addition, fair and accurate reporting of proceedings is promoted if a witness statement is put into the public domain only when it becomes evidence and its contents can also be tested and contested in a public trial.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §16, Leggatt J).
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Purpose of reporting the evidence a witness will give at trial before the trial begins is not a good reason for access
“For the reasons already indicated, an interest in reporting what evidence witnesses will give at a trial before they give it does not engage the open justice principle and is not a good reason to be allowed access to witness statements before the statements are put in evidence (if they are). Nor does it become a good reason just because of the adventitious fact that reference was made to the statements at a pre-trial hearing which it is not TNL's current purpose to report.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §23, Leggatt J)
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- Purpose of understanding arguments made at hearing better is a good reason for access
“A critical consideration in the present case, as I see it, is the purpose for which TNL is seeking access to the trial witness statements. If its purpose were to facilitate a better understanding of the arguments made at the April hearing, then, in the absence of a sufficient countervailing reason, the open justice principle would indicate that access to the statements should be allowed…There is no reason to think that TNL's purpose in seeking access to the trial witness statements at this stage is to enable the Sunday Times to report in more detail than it has already done on the attempt made by Mr Ashley in April to obtain permission to adduce expert evidence and the reasons why that attempt failed…The other two documents are the witness statements of Ms Cullen and Mr Fearnhead which were prepared specifically for the April hearing. Those documents seem to me to fall into a different category. They were put in evidence at the April hearing and, like the skeleton arguments, were prepared solely for the purpose of that hearing. In the case of these documents it seems to me that no evidence or explanation is needed to justify a request for access to them in the absence of any legitimate objection.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §§22…25, Leggatt J)
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- Marked up trial bundles not disclosable
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"[48] It is, however, appropriate to add a comment about trial bundles. Trial bundles are now generally required. They are compilations of copies of what are likely to be the relevant materials - the pleadings, the parties’ submissions, the witness statements and exhibits, and some of the documents disclosed. They are provided for the convenience of the parties and the court. To that end, the court, the advocates and others involved in the case may flag, mark or annotate their copies of the bundle as an aide memoire. But the bundle is not the evidence or the documents in the case. There can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it. A clean copy of the bundle, if still available, may in fact be the most practicable way of affording a non-party access to the material in question, but that is for the court hearing the application to decide." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)
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Disclosure of documents relating to appeal following hearing
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- Application by accountants/solicitors firm involved in similar case for pleadings and submissions granted
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"[10] I am cognisant of the issues raised in the appeals in which the applicant is involved (I had considered an application concerning a postponement of those appeals prior to the hearing of the Appeal). And the "relevant consideration issue" (as defined in our decision in the Appeal) is one of the core issues in the appeals in which the applicant is involved.
[11] It is clear to me therefore that the applicant has a legitimate interest in the relevant documents, and I have no hesitation in exercising my discretion in their favour and directing the Tribunal to release the requested documents to the applicant.
[12] There were no supplemental written submissions, and therefore the only documents to which this direction applies are the parties' respective skeleton arguments.
[13] The Appeal has been heard. It is likely that our decision will be in the public domain very shortly. Those skeleton arguments are therefore very much in the public domain and available for third party disclosure. It is proportionate and practical for them to be disclosed. It will further the open justice principle in that it will enable the public to understand the decision that we have reached in the Appeal. It will enable the public to judge the judges. There is no harm to the judicial process or to the legitimate interests of others in sanctioning disclosure." (Osmond v. HMRC [2024] UKFTT 413 (TC), Judge Popplewell)
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"[11] I am satisfied from the foregoing that the applicant has demonstrated a clear legitimate interest in the Requested Documents. The “single entity” issue was a significant issue in the proceedings as the Applicant will now have seen from my decision. Neither of the parties has opposed the application, and I have seen no indication that disclosure would cause any harm to the maintenance of an effective judicial process or to the legitimate interest of others. Disclosure would not be disproportionate. The Requested Documents can readily be provided at the flick of an electronic switch. I have considered, however, whether I should grant this application on condition that the Applicant reimburses the parties for some element of the costs which they have incurred in commissioning the transcripts. It seems to me that there is much value in those transcripts from which the Applicant and their client will benefit, even though they were commissioned for the benefit of the parties and for the Tribunal with no thought to any benefit for a person such as the Applicant. The key question (see Cape) is how I exercise my jurisdiction in the particular circumstances of this case. It seems only fair to me, and I do not think it is any form of fetter on the concept of legitimate interest, that the Applicant should make a contribution to the costs of the transcripts from which they, and their client, will now benefit. I am fortified in reaching this conclusion by the provision in paragraph 47 of Cape “The non-party who seeks access will be expected to pay the reasonable costs of granting that access.” I therefore grant the application on condition that the Applicant or their client reimburses the parties 20% of the costs of the transcribers (plus VAT to the extent it is not recoverable by the parties). I leave it to the parties to deal with the detail of this reimbursement but I am happy to consider any application in relation to it should the parties fail to reach agreement." (Gunfleet Sands Limited v. HMRC [2022] UKFTT 94 (TC), Judge Nigel Popplewell)
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- Application based on 'interests of the wider tax community' granted
"[13] I had initial misgivings concerning the application based on the interest of the wider tax community. And of course, the applicant may have confidentiality and privilege issues regarding the relevant documents themselves and the information therein, which I leave it to them to resolve. But as a matter of principle, I cannot see any principled reason why an application which is made in a "representative" capacity on behalf of the wider tax community, where the information in the requested documents will be put into the broader public domain (albeit restricted I suspect to technical tax publications) should be treated differently than an application on behalf of specific clients. The principles are the same. And in that regard, I repeat what I have said at [12] above." (Osmond v. HMRC [2024] UKFTT 414 (TC), Judge Popplewell)
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- Application by barrister with interest in case for disclosure of evidence granted
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"[11] Mr Gordon further submits that “legitimate interest” was to be construed broadly and was not confined to journalistic purposes. For example, it could include an interest in related litigation or his interest as a barrister practising frequently in the Tribunal with a particular interest in the operation of the Taxes Management Act.
[12] I accept Mr Gordon’s submissions on this matter and I agree with Judge Sinfield’s view in Hastings, at [17], that legitimate interest does not require a direct personal or professional interest in the outcome of proceedings and that an interest in other related litigation, whether actual or in contemplation, is sufficient. Accordingly, I find that Mr Gordon has a legitimate interest in obtaining access to the document requested.
[13] With regard to the fact-specific balancing exercise I am required to carry out to determine this application, as set out in Cape, I have concluded that granting access to this document will advance the open justice principle because Mr Gordon has a legitimate interest in obtaining access. I do not consider there will be any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others and there are no representations from the parties to suggest otherwise." (Fastklean Limited v. HMRC [2020] UKFTT 511 (TC), Judge Sukul)
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- Application by journalist for skeleton for CMC granted
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"[11] In this case, there has been a hearing albeit a hearing to give case management directions rather than a substantive hearing of the appeals. At the case management hearing, the skeleton arguments which I had read before the hearing took place, were referred to by me and by both parties. The skeletons were not read out or quoted from extensively during the hearing because it was not necessary to do so. They were, however, taken into consideration by me in discussing with the parties what directions should ultimately be made. I should make it clear that no directions have as yet been made as the parties are agreeing certain details before submitting the proposed directions to me for approval. I have no doubt that an observer, such as Ms Meisel, would struggle to understand the parties’ submissions and my comments on them during the hearing without the skeletons. In such circumstances, it seems to me that providing the skeleton arguments to a journalist would further the principle of open justice in that it would enable the journalist to understand the proceedings more fully and, if they so chose, report them more accurately. I do not consider that, as suggested by JHA, it is necessary for a person requesting access to or copies of documents to do more than indicate, as Ms Meisel has done, that they are sought for journalistic purposes.
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[14] I have also considered whether the utility of the information contained in the skeleton arguments and hearing bundle in advancing the principle of open justice is outweighed by any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. I cannot see that providing the skeleton arguments or hearing bundle to Ms Meisel carries any risk that the judicial process will be compromised or affected in any way. I note that JHA has never suggested that the Appellants have any legitimate interests that the documents will not be disclosed and I cannot see how they could as they must be assumed to be aware of the principle of open justice.
[15] Finally, I considered the practicality and proportionality of providing Ms Meisel with electronic copies of the skeleton arguments. It is obvious (and JHA did not contend to the contrary) that the provision of electronic copies is a straightforward matter. All that the Tribunal is required to do is send an email with the skeletons and bundle attached. Accordingly there are no issues of practicality and proportionality which could justify refusing the application." (Bouncylagoon Limited v. HMRC [2022] UKFTT 361 (TC), Judge Sinfield)
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- Application by journalist for bundle for CMC not granted (because not referred to or considered in any detail)
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"[13] I do not consider, however, that providing Ms Meisel with a copy of the hearing bundle will further the principle of open justice in any material way. As the focus of the hearing was the directions to be given in relation to five lead cases, the contents of the hearing bundle were not referred to or considered in any detail because it was unnecessary for the purpose of the hearing. In those circumstances, the hearing bundle would not assist Ms Meisel to understand the proceedings or my decision in the hearing or any directions that are issued subsequently. The hearing bundle (of 1,423 pages) contained details and correspondence that referred to Appellants and matters that were not chosen as lead cases and may never become the subject of a public hearing. Providing access to such details and correspondence would not advance the principle of open justice when those appeals may never be the subject of any public hearing or judicial decision. Accordingly, I have decided that the Tribunal should not provide Ms Meisel with an electronic copy of the hearing bundle." (Bouncylagoon Limited v. HMRC [2022] UKFTT 361 (TC), Judge Sinfield)
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- Application by taxpayer in similar situation granted so far as relevant
"[3] Transopco, operating under the name 'FreeNow', supplies (as principal) journeys in private hire vehicles ('PHVs') to passengers. Transopco, like Bolt, buys in ride services from PHV drivers for re-supply to passengers. Transopco contends that, at a high level of generality, both appeals give rise to issues of law that are essentially the same but there are some aspects of Transopco's case that did not arise in Bolt's appeal or were dealt with only briefly by the FTT. In summary, Transopco submits that the purpose of the application was to enable it "to exhaustively identify the differences between the two cases".
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I direct that:
(1) Bolt shall provide the transcripts of the hearing in September 2023 to Transopco within 14 days of payment by Transopco of 20% (or such other percentage as the parties may agree) of the costs incurred by Bolt in relation to the transcripts plus VAT (if applicable).
(2) Bolt shall provide Transopco with copies of the following documents, in such format as shall be agreed, within 21 days of the date of release of this decision subject to any extension that may be granted by the FTT for redaction of the documents:
(a) the Grounds of Appeal;
(b) HMRC's Statement of Case;
(c) Bolt's Reply;
(d) the witness statement of Joshua Ryan dated 9 June 2023 (but documents exhibited thereto);
(e) the statement of agreed facts; and
(f) the parties' skeleton arguments." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Limited to what is relevant to understanding the decision
"[44] NGN applies for access to the following documents, which we will refer to as Categories (1), (2) and (3):
(1) The transcript of the hearing before the FTT on 19 July 2021 "and any other transcripts of the preliminary proceedings".
(2) The appeal papers, including the Taxpayer's substantive notice of appeal to the FTT in relation to the substantive decision against which he appealed.
(3) The decision of the FTT dated 15 September 2021 referred to in the Decision.
[45] The principles to be applied in determining such an application are uncontroversial. They are set out in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 and R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420, and can be summarised as follows:
(1) The default position should be that access should be permitted on the open justice principle.
(2) This extends not only to the parties' written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing.
(3) An applicant has no right to be granted access; it is for the applicant to explain why they seek access and how granting access will advance the open justice principle.
(4) The open justice principle must be balanced against other factors, including the practicality and proportionality of granting access and possible harm to the maintenance of an effective judicial process and the legitimate interests of others.
[46] HMRC supported the Disclosure Application. Mr Firth objected to it, on the ground that the documents in question were not necessary to understand the Decision, as contrasted with the substantive appeal to the FTT. Mr Firth also submitted that NGN had not put forward "credible evidence" as to why access was needed. Mr Bunting objected that these points should properly have been made before the hearing.
[47] Having applied the principles summarised above, our decision in relation to the Disclosure Application is as follows:
(1) Category (1): most of this transcript concerns issues other than those which were the subject matter of the appeal to the Upper Tribunal, and, in our opinion, access to the full transcript is not necessary to understand the Decision, as contrasted to the circumstances of the underlying substantive appeal. We have considered whether to provide access to the sections of the transcript which are relevant to an understanding of the Decision, but we have decided not to do so for the reason that all relevant sections are quoted in the Decision. There are no other transcripts of preliminary proceedings which are relevant to an understanding of the Decision.
(2) Category (2): these documents were not considered by or before the Upper Tribunal in reaching the Decision, and so we decline to direct access to them.
(3) Category (3): this document deals largely with the issue of a stay of the underlying appeal, which was not an issue dealt with in the Decision. Insofar as it relates to the application for anonymity, which was the subject of the Decision, access is necessary under the open justice principle and it is proportionate to grant access. Therefore, we grant access to the document, redacted to remove the reference to the identity of the Taxpayer and the sections dealing with the stay application.
[48] We therefore decline to grant access to the documents in Categories (1) and (2), and grant access to the document in Category (3) on the basis of the redactions we have described." (HMRC v. The Taxpayer [2024] UKUT 364 (TCC), Miles J and Judge Thomas Scott)
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- Low bar for skeleton arguments and submissions
"[15] I take the view that, as with skeleton arguments and written submissions, the threshold to establish that there is a good reason why the pleadings should be disclosed is low. The pleadings are (or should be) central to an understanding of the case. They are invariably read by the panel in advance and it is often the case that passages in them are taken as read and referred to only briefly, if at all, in the hearing. Accordingly, the transcript will often not reveal the parties' pleadings. It will, therefore, usually be necessary for any third party to have read the pleadings in order to understand submissions or comments in the transcript. There is no suggestion in Moss or the other authorities that the threshold for obtaining access to pleadings is higher where transcripts are provided because the third party may be able to work out what the parties have pleaded by analysing the transcripts. For those reasons, I do not accept Bolt's submission that the transcripts make provision of the Grounds of Appeal, Statement of Case and Reply otiose. Accordingly, I direct that Bolt provide Transopco with copies of the Grounds of Appeal, HMRC's Statement of Case and Bolt's Reply within 21 days of the date of release of this decision and subject to any extension granted pursuant to the next paragraph." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Statement of agreed facts disclosed
'[24]...The statement of agreed facts and skeleton arguments are part of the background to the case and were taken into account, even if not specifically quoted or referred to, in the decision. In such circumstances, it seems to me that providing the statement of agreed facts and the skeleton arguments would further the principle of open justice in that it would enable Transopco to understand the proceedings and the decision more fully. Accordingly, I direct that Bolt provide Transopco with copies of the statement of agreed facts and the parties' skeleton arguments within 21 days of the date of release of this decision and subject to any extension granted pursuant to the next paragraph." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Transcript of public hearing (subject to bearing part of cost)
"[13] Bolt does not object to disclosure of the transcripts and agrees to provide them to Transopco if it agrees to pay Bolt 20% plus VAT of the costs which it incurred in relation to the transcripts. I consider that as Bolt's appeal was heard in public, with no application for any part of it to be heard in private, there can be no principled objection to disclosing the transcripts of that hearing. I am satisfied that Transopco has a good reason for obtaining access to the transcripts, namely, to understand the way the case was put more fully and why the tribunal decided the case as it did. I also regard it as entirely reasonable that Transopco should be required to reimburse part of the costs incurred by Bolt in procuring the transcripts. To direct that Bolt provide the transcripts free of charge would not be proportionate in my view. Accordingly, I direct that Bolt provide the transcripts of the hearing in September 2023 to Transopco within 14 days of payment by it of 20% (or such other percentage as the parties may agree) of the costs incurred by Bolt in relation to the transcripts plus VAT (if applicable)."
(Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Witness statement disclosed but not exhibits due to confidential and commercially sensitive information
"[22] Bolt objects to disclosure of the exhibits to Mr Ryan's witness statement on the grounds that they are voluminous, include confidential and commercially sensitive information relating to Bolt's business which was not referred to in open court. Bolt also makes the point that if the FTT were to order disclosure of the exhibits, extensive redactions would be required which would be a time-consuming and onerous exercise. I accept Bolt's submissions in relation to the confidential and commercially sensitive nature of many of the exhibits. I recall that the exhibits were voluminous. I consider that to direct disclosure, with appropriate redactions, in this case that would impose a disproportionate administrative burden on Bolt. Accordingly, I refuse Transopco's application for disclosure of the exhibits. If, having read Mr Ryan's witness statement, Transopco considers that a more limited disclosure of specific exhibits would advance the principle of open justice, it has liberty to make a further application." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- Documents relating to expedition application not relevant
"[19] I accept Bolt's submissions in relation to these documents. In my view, Transopco has not shown that it has a good reason for seeking access to them. The expedition application and associated documents are not central to an understanding of the case. As Bolt observes, applications for expedition are fact-sensitive and turn on the circumstances of the particular case. In this case, Bolt relied on confidential and commercially sensitive information in support of its application as was recognised by the FTT in its Directions of 19 April 2023. Such information would be of no relevance or use in relation to Transopco's application for expedition. Accordingly, I refuse Transopco's application for disclosure of the expedition applications and related documents." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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- PTA documents not disclosed
"[27] I am not prepared to grant Transopco's application. It seems to me that disclosure of the documents relating to the application for and grant of permission to appeal in this case will not advance the principle of open justice. An application for permission to appeal and any reply will not allow the third party to understand the reasons why the FTT decided the appeal as it did. The application and reply are merely the parties' views as to the correctness or otherwise of the decision. In so far as permission is granted (as it was in this case), the decision is brief and says nothing about the reasons why the FTT decided the appeal as it did. It may be that where the FTT refuses permission on all or some grounds, a permission to appeal decision may explain the substantive decision, however, that was not what happened in this case. The grounds of appeal and HMRC's response to them will, of course, be the subject of the Upper Tribunal's decision in due course." (Bolt Services v. HMRC [2025] UKFTT 302 (TC), Judge Sinfield)
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Disclosure of documents relating to appeal before appeal determined
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- General principle: to enable public scrutiny of the justice system
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"[39] I derive the following general principles from the cases, largely as summarised in Dring SC.
(1) “Open justice” is a constitutional principle which applies to all courts and tribunals exercising the judicial power of the state (Dring SC at [41]). This clearly includes the FTT.
(2) All courts and tribunals (including the FTT) have inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before them (ibid).
(3) The extent of any access permitted by procedure rules is not determinative (save to the extent they contain a valid prohibition) (ibid). (In passing, I would observe that this affords a further rebuttal of the argument that the FTT should effectively just follow CPR 5.4C(1).)
(4) When such access is sought, the court or tribunal must therefore consider how to exercise its inherent jurisdiction in the light of the “open justice” principle.
(5) What that principle requires in any individual case is to be judged by reference to whether granting the access which is sought would advance the purpose or purposes of the principle (ibid at [45]).
(6) As a general statement, the overall purpose of open justice as originally identified in Guardian News & Media at [79] is “to enable the public to understand and scrutinise the justice system of which the courts are the administrators” (Dring SC at [37] - and it is clear that the reference to “courts” here extends also to tribunals - ibid at [36]).
(7) There are two main facets to this overall purpose:
(a) “to enable public scrutiny of the way in which court (and tribunals) decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly” (ibid at [42]); and
(b) “to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases” (ibid at [43]);
(8) Whilst there may be other facets, (a) these main two should not be regarded as mutually exclusive, because “public understanding of the justice system and how it works is the premise for public scrutiny of the judicial system” and (b) any attempt to identify further ones is “likely to create more heat than light, and may only result in successive exercises in special pleading” (R oao Saifullah Gharab Yar v Secretary of State for Defence [2021] EWCH 3219 (Admin)).
(9) It is for the person seeking access to explain why he seeks it and how granting him access will advance the principle of open justice. In particular, there is no “right” to access (except where relevant rules specifically afford such a right); the person seeking access must show a “legitimate interest” in doing so (Dring SC at [45]).
(10) In response to any request, the court or tribunal should carry out a “fact-specific balancing exercise” in which the person seeking access must explain why it is sought and how the grant of access will advance the open justice principle (ibid at [45]);
(11) In carrying out that exercise, the court or tribunal will consider “the purpose of the open justice principle and the potential value of the information in question in advancing that purpose”, and will weigh in the balance “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others” (ibid at [45] & [46]);
(12) The court or tribunal should also consider the “practicalities and proportionality of granting the request” (ibid at [47])." (Cider of Sweden Limited v. HMRC [2022] UKFTT 76 (TC), Judge Poole)
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- Release of pleadings when hearing not imminent would not advance open justice
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"[46] Considering the first facet of the purpose identified at [39(7)] above (i.e. public scrutiny of the Tribunal’s decision-making process), I do not consider that the release of the Pleadings at this stage of the proceedings would advance that purpose at all. There has been no hearing, nor is a hearing imminent. No judicial decision has been made, nor is one about to be made, on the issues dealt with in the Pleadings. The appeal is at an early stage, where there has been no judicial involvement at all (save in relation to this application) and no effective hearing. The position might be different in principle with respect to the subject matter of any interim applications (and decisions), but there have been none and therefore the point does not arise. There is therefore no assistance to be gained by EY or indeed any other member of the public, in furtherance of this purpose, by access to the Pleadings or other documents which EY seek (insofar as such other documents may exist).
[47] Turning to the second facet of the purpose identified above (i.e. public understanding of how the system works, and why decisions are taken), the second limb of this (why decisions are taken) is in my view equally inapplicable in the present case (where no decision has been or is about to be taken). The first limb (public understanding of how the system works) does not apply in my view either in the present circumstances: from reading the Pleadings, a third party would certainly gain an understanding of the legal basis upon which this particular claim is being advanced and defended (indeed that is EY’s stated purpose in seeking access to them), but in advance of an effective hearing that would tell them nothing which would enable them to monitor how the system of justice in the Tribunal actually works. Again, the position might be different in relation to the subject matter of any interim applications (and associated decisions), if there had been any, but the point does not arise on the facts of this case.
[48] Standing back and considering the overarching purpose of the principle of open justice referred to at [39(6)] above, I can see no basis upon which the provision of the Pleadings to EY at this early stage of proceedings (before any substantive judicial involvement or an effective hearing) will further their ability to understand or scrutinise the justice system administered by the Tribunal, as opposed to enabling them to understand the legal arguments being deployed by the parties. Again, if there had been any interim applications or associated decisions, the position might be different (in respect of the subject matter of any such application), but the point does not arise on the facts of this case." (Cider of Sweden Limited v. HMRC [2022] UKFTT 76 (TC), Judge Poole)
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- Even if open justice is engaged at early stage, balance against parties interest in keeping matters confidential
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"[52] If, contrary to the view expressed above, the provision of access to the Pleadings could be regarded as furthering the principle of open justice in some way, then it is still clear that there is no “right” to the provision of the documents (either unconditionally or absent some specific direction or strong countervailing reason): what is then required is a “fact-specific balancing exercise” on the part of the Tribunal to decide whether access should be granted.
[53] It is quite clear that simply wishing to understand the legal basis of the arguments being advanced (whether out of academic or journalistic interest, or in order to inform one’s conduct of a similar dispute) is a perfectly legitimate reason for seeking access to the documents. However, it is equally clear that the parties to the original dispute, at this early stage of the proceedings, also have their own legitimate interests in wishing to keep such matters confidential - whether because of an understandable wish for their confidential tax affairs not to become public knowledge before they are actually adjudicated on by the Tribunal (or, in the case of HMRC, their general duties of taxpayer confidentiality), or (more likely, as the High Court pleadings are already publicly available and are held by EY) because of a wish to preserve the confidentiality of the detailed lines of legal argument being deployed in the appeal.
[54] In striking a balance between the principle of open justice and the countervailing wishes of the Appellant and HMRC to maintain the confidentiality of the documents for their respective reasons, given the stage the proceedings have reached, I would therefore refuse the application in any event, on the basis that I would consider any small advancement of the principle of open justice inherent in disclosure to be outweighed by the wish for confidentiality on the part of the Appellant and HMRC at this stage of their dispute, before there has been any judicial involvement in the substance of that dispute or effective hearing of it." (Cider of Sweden Limited v. HMRC [2022] UKFTT 76 (TC), Judge Poole)
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- Application when hearing about to take place would be stronger
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"[51] I should emphasise that if the application were made at a later stage of the proceedings when the substantive hearing had happened or (possibly) was about to take place (as in JTI) then the application of the open justice principle might well lead to the opposite conclusion." (Cider of Sweden Limited v. HMRC [2022] UKFTT 76 (TC), Judge Poole)
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