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Procedure.Tax
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R8: Court of Appeal
Permission to make second appeal
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Important point of principle or some other compelling reason
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"Permission to appeal to the Court of Appeal in England and Wales or leave to appeal to the Court of Appeal in Northern Ireland shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that—
(a)the proposed appeal would raise some important point of principle or practice; or
​(b)there is some other compelling reason for the relevant appellate court to hear the appeal." (SI 2008/2834, r.2)
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- Not every ground must raise an important point of principle/have a compelling reason
"[82] However, neither section 55 of the Access to Justice Act 1999 nor CPR 52.7 stipulates that every ground of appeal for which permission to appeal is given must (absent another compelling reason for this Court to hear it) raise an important point of principle or practice, and in my view that is not the law. The appeal as a whole must raise such a point, but, if one ground of appeal with a real prospect of success does so, permission to appeal can be given in respect of one or more other grounds of appeal which have real prospects of success but are of no wider significance. As Brooke LJ explained in Tanfern Ltd v Cameron-Macdonald [2000] EWCA Civ 3023, [2000] 1 WLR 1311, at paragraph 42, the enactment of section 55 of the Access to Justice Act 1999 introduced a "major change to our appeal procedures" such that it would "no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is 'properly arguable' or 'because it has a real prospect of success'". If, though, "the appeal", overall, gives rise to an important point of principle or practice, permission to appeal can be granted for grounds which do not themselves do so but have "a real prospect of success" even in the case of a second appeal. It cannot therefore assist Mr Calzavara to say that the new ground of appeal does not raise an important point of principle or practice." (Zaman v. London Borough of Waltham Forest [2023] EWCA Civ 322, Newey, Asplin, Nicola Davies LJJJ)
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Starting point is prospects of success
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“The starting point for this limb of the test is a consideration of the prospects of success; see PR (Sri Lanka) [2011] EWCA Civ 988.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §5).
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A reason to subject the appeal to a third judicial process
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"[26] This test has recently been considered by the Northern Ireland Court of Appeal in Martin v HMRC [2006] NICA 56 when Weir LJ endorsed the approach of Girvan LJ in McMahon t/a Irish Cottage Trading v Commissioners for Her Majesty’s Revenue and Customs GIR8657 when he said:
“On an application for permission to appeal from the rejection by the Upper Tribunal … of an appeal the question is … whether there is a compelling reason why the issue in which the claimant has failed twice at the two tiers of the tribunal system, which are competent to determine matters of that kind, should be subjected to a third judicial process.”
[27] Similarly, in Tanfern v Cameron-MacDonald and Anor [2000] 1 WLR 1311 the English Court of Appeal considered the identical provisions of section 55(1) of the Access to Justice Act 1991 when Brooke LJ said at paragraph 42:
“… It will no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is `properly arguable’ or because it has a `real prospect of success’ … the decision of the first appeal court is now to be given primacy unless the Court of Appeal itself considers that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for it to hear this second appeal.”
[28] Further, in MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 at paragraph 43 Sir John Dyson said:
“Courts should approach appeals from (expert tribunals) with an appropriate degree of caution … they and they alone are the judges of the facts … Their decision should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently”." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)
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General point of principle and practice not previously considered​
"[29] This application raises the question whether a tribunal can make a finding on the basis of a “third man theory” that is, one which the judge suggests to the parties, but which has not been pleaded by the claimant. Secondly it raises the question whether, in the event that a tribunal is entitled to raise “a third man theory”, what procedure it ought to follow in those circumstances. The UT itself acknowledged this was an “unusual case” because the FTT found fraud on a factual basis not pleaded or advanced by HMRC. We are satisfied this case raises important points of principle and practice which have not previously been adjudicated upon by the UT. For this reason we are persuaded that the appeal raises important points of principle and practice." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)
Wholly exceptional collapse of fair procedure
"[30] We are further satisfied that the UT erred in its reconstruction of the procedural context. In particular it erred in finding that UMR did not dispute the case made by HMRC until 8 weeks before trial and erred in finding that UMR in some way had kept HMRC ‘in the dark’ about the correct supply chain. The UT therefore viewed the complaints of procedural unfairness through a prism which was fundamentally flawed. As a result, as appears from the judgment, it completely failed to address the question whether it was open to the FTT to raise a ‘third man theory’. Further its analysis of the exchanges between Judge Cannan and UMR’s counsel, to ascertain whether UMR were put on notice of the ‘third man theory’ and given a sufficient opportunity to meet it, was flawed as these exchanges were viewed through a prism of a procedural context which was fundamentally flawed.
[31] As a consequence we are satisfied the appellant has suffered “a wholly exceptional collapse of fair procedure” as referred to by Lord Dyson in R (Cart) v UT [2012] 1 AC 613. In addition this is a case where it is strongly arguable that there has been an error of law which has had truly drastic consequences. In particular UMR has sustained a loss of almost £500,000. For these reasons we consider there are also compelling reasons why permission to appeal ought to be granted. Accordingly we find that the high hurdle has been met and we grant permission to appeal." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)
Procedural irregularity rendering first appeal unfair
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“It is, however, recognised, even where the prospects of success are not high, a procedural irregularity which has rendered the first appeal unfair may constitute a compelling reason for granting permission. There was no such irregularity in the proceedings before the FTT. It is contended that the delay before the UT hearing produced a sufficiently fundamental irregularity. I do not consider that that delay qualifies unless its effect is to produce an unfair position or a detrimental change in the position of the person affected. Here there has been no suggestion that this is the case.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §6).
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Second appeal criteria should be addressed in succinct and focused manner
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“Ouseley J stated as long ago 2011 that when seeking permission to have a second appeal the grounds should address the second appeal criteria succinctly and in a focused manner; see [2011] EWHC 2763 (Admin). By nature, as Ouseley J said, an important point of principle or practice has to be capable of being expressed very shortly with supporting references as far as necessary to demonstrate that the issue is a correct formulation of an issue which does arise in practice in the particular case. As to the other compelling reason, that must be one with a high prospect of success in the case and it too should be capable of succinct summary.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §4).
Second appeals criteria apply to each ground of appeal (granting permission on one does not support granting permission on another)
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“…the Court of Appeal routinely gives limited permission on the basis that the other grounds do not meet the criteria for a second appeal.” (R (oao Decker) v. Secretary of State for the Home Department [2014] EWHC 354 (Admin), §§100…101…102)
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CPR applies once the Court of Appeal is seized of an appeal
“Once the High Court is seized of the appeal then in my judgment the provisions relating to the conduct of that appeal set out in CPR 52 and the Practice Direction apply.” (Woodpecker Ltd v. HMRC [2009] EWHC 3442 (Ch), §36 – in relation to the former procedure under which appeals from the General Commissioners were to the High Court by way of case stated).
Focus of second appeal should be the first instance decision
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“Formally [the intervening appellate judgment] is the judgment from which the appeal is made to this court. Nevertheless, the decision of the tribunal is the one in which an error of law must be found in order to give legal grounds for an appeal to any level…[A] detailed critique of a complex first level appeal judgment is not always the best way of persuading this court that the tribunal ran off (or, as the case may be, stayed on), the legal rails.” (Procter & Gamble UK v. HMRC [2009] STC 1990, §76, Mummery LJ).
Particular deference to specialist tribunals
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"[4]...Further in this highly specialised area of the law the higher courts should give particular weight to the expertise which has been developed by the senior judges and members of the Upper Tribunal (Lands Chamber). That weight is not necessarily diminished by the fact that in this particular appeal, none of the parties before the court has seen it as in their own interests to defend the Upper Tribunal’s decision in its own terms. This of course is not to overlook the expertise in this field of Lindblom LJ, himself a former President of the Lands Chamber." (Cardtronics UK Ltd v. Skyes [2020] UKSC 21, Lord Carnwath)
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“This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. …” (MA (Somalia) v Secretary of State for the Home Department [2007] UKSC 49, §43 per Lord Dyson)
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“Particular deference is to be given to [specialist tribunals] for Parliament has entrusted them, with all their specialist experience to be the primary decision makes” (Procter & Gamble UK v. HMRC [2009] STC 1990, §11, Jacob LJ);
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“The FTT is a specialist tribunal. When considering its decision its expertise in the particular area requires to be borne in mind. As was observed in Procter & Gamble…” (NHS Greater Glasgow and Clyde Health Board v. HMRC [2017] UKUT 19 (TCC), §22).
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Less so in non-specialist areas of law (e.g. dishonesty)
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“In the present case, the Decision is not to my mind full or explicit enough to allow me to assess reliably how the FTT arrived at its decision on the question of dishonesty or quite what factual conclusions led it to that decision. It can perhaps also be observed that the FTT’s specialist expertise is likely to be of less significance when it is determining whether someone such as Mr Brookes was dishonest than in more technical areas.” (Brookes v. HMRC [2016] UKUT 214 (TCC), §22, Newey J).
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