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Failure to read the evidence makes hearing unfair

 

"[42] Nevertheless, while fully acknowledging the difficult position in which the judge was placed and that in some respects he did not receive as much assistance from the parties as he might have, I am bound to conclude that the hearing was unsatisfactory and that as a result the judge's decision was flawed. He never saw the material on which Mrs Crowther relied in support of her case that the 2012 arrangements constituted a sham and, in the event, did not reach even a provisional view as to whether she had established a good arguable case. As the judge had not read the evidence, his conclusion that there was "no real evidence of any deviousness" on the part of Mr Knight must carry little or no weight. Moreover, while the judge regarded himself as forced to adjudicate between maintaining the freezing order and discharging it against the second to sixth respondents altogether, I see no reason why he could not have made an order to the effect which he described, that is "to the effect that if [Mr Knight] sells a ship or ships the proceeds will be reinvested to meet the various expenditure commitments to which he refers". As the judge apparently did not regard that possibility as open to him, I consider that his exercise of discretion cannot stand." (Crowther v. Crowther [2020] EWCA Civ 762, Males LJ)

Failure to read the evidence makes hearing unfair

Not required to read evidence not exhibited to witness statement or otherwise referred to

 

"[29] We have circumscribed the error in the narrow terms of the documents exhibited to the witness statement and not the remainder of the additional documents which were not exhibited to that statement. The error in the FTT’s finding that no new evidence had been provided did not in our view stem from overlooking the remainder of the documents. Even though those other documents, with the exception of the 2016 FTT decision dealing with Mr Adelekun’s appeal against an income tax discovery assessment, were in the document bundle, there is no indication from the parties’ written submissions, or from any other material covering what was dealt with at the hearing (there was no transcript and no note of hearing was put before us), that the FTT were specifically taken to the documents in the course of the hearing. As mentioned in the UT’s decision refusing permission on the papers, if a tribunal did not consider documents, which it was not specifically taken to, that would not necessarily give rise to an error of law. It cannot be assumed that just because a document appears in a hearing bundle that the tribunal panel will take account of it; if a party wants the tribunal to consider a document then the party should specifically refer the tribunal to it in the course of the hearing (see Swift & others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [15]). This is not least to give the tribunal adequate opportunity to consider and evaluate the document in the light of the reliance a party seeks to place on it, but also to give the other party the opportunity to make their representations on the document. That is particularly so where, as here, there were several hearing bundles before the FTT relating to the various previous proceedings and the one containing the relevant additional documents was voluminous comprising 434 pages." (Adelekun v. HMRC [2020] UKUT 244 (TCC), Judge Raghavan and Judge Brannan)

Not required to read evidence not exhibited to witness statement or otherwise referred to

Tribunal only considering documents it was referred to

 

"[8] We were provided with 11 electronic bundles of documentary evidence comprising (including statements from 49 witnesses) over 180,000 pages.

[9]In Swift & others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [15] Gross LJ (with whom the Master of the Rolls and Christopher Clarke LJ agreed), dismissing an appeal in which the judge was said to have ignored “vast tranches” of evidence contained in 25 lever arch files which had not been put to the witnesses or referred to in closing submissions, said:

“The notion that the 25 files should simply be left available for the Judge to ‘dip into’ (untutored) is fanciful.”

[10] In Adelekun v HMRC [2020] UKUT 244 (TCC) the Upper Tribunal (Judges Raghavan and Brannan) said, at [29]:

“… It cannot be assumed that just because a document appears in a hearing bundle that the tribunal panel will take account of it; if a party wants the tribunal to consider a document then the party should specifically refer the tribunal to it in the course of the hearing (see Swift & others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [15]). This is not least to give the tribunal adequate opportunity to consider and evaluate the document in the light of the reliance a party seeks to place on it, but also to give the other party the opportunity to make their representations on the document. That is particularly so where, as here, there were several hearing bundles before the FTT relating to the various previous proceedings and the one containing the relevant additional documents was voluminous comprising 434 pages.”

[11] In the light of these observations by the Court of Appeal and Upper Tribunal, our approach was not to “dip into” the voluminous evidence in the present case but to read all of the witness statements (which were “taken as read” as the evidence in chief of that witness) and consider those documents exhibited to the statements to which we were referred in submissions or which had been put to the 28 witnesses from whom we heard, either in person or remotely, between April and June 2022." (Sintra Global Inc v. HMRC [2022] UKFTT 365 (TC), Judge Brooks)

Tribunal only considering documents it was referred to
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