R7: Outcome of appeal
UT may set aside FTT decision. If it does it must either remit the case to the FTT or re-make the decision.
- Consider effect of error of law on decision as a whole before setting aside
" The parties’ post-hearing submissions helpfully clarified what test should be applied if we did find there to be an error of law and the question then arose of whether the UT should exercise its discretion to set the decision aside. The “crucial, and usually decisive” test, as explained in the Court of Appeal’s judgment in Degorce v HMRC  STC 2226 per Henderson LJ (at ), is whether the error of law is “material”. Although there was some disagreement in the detailed application of that test of materiality, it is clear from Degorce the UT should set aside the decision if it is satisfied the error of law “might (not would) have made a difference to that decision”." (Harrison v. HMRC  UKUT 216 (TCC), Judge Raghavan and Judge Andrew Scott)
" The approach set out in Degorce is sometimes described as a test of materiality. That is something of an oversimplification. If we find an error of law, as we have done, then we should only decline to set the FTT’s decision aside if we are satisfied that the error could have made no difference to the decision. Here, we consider that the FTT’s decisions on those issues where we have found errors of law might have been different but for the errors. So, we should exercise our discretion to set aside the decision, and we do so." (Urenco Chemplants Limited v. HMRC  UKUT (TCC), Mellor J and Judge Thomas Scott)
" We have concluded that, taking into account the formulation of materiality expressed in Degorce, the FTT’s decision might have been different had it applied the correct legal test...
 As a result, we conclude that the FTT’s decision on this issue should be set aside." (Babylon Farm Limited v. HMRC  UKUT 224 (TC), Snowden J and Judge Thomas Scott)
“The Court of Appeal in Merthyr Tydfil [Merthyr Tydfil Car Auction Limited v Thomas  EWCA Civ 815] went on to say, at , that it was necessary to consider the effect the error of law may have had on the judge’s reasoning and conclusions in that case. It was necessary to consider whether the judge’s decision to attach little weight to the category of evidence in question had been material to the outcome and, in particular, whether that outcome might have been different had the judge considered that evidence on the correct basis.” (HMRC v. Pacific Computers Ltd  UKUT 350 (TCC), §25, Mann J and Judge Berner).
“…if the case contains anything which is on its face an error of law and which bears upon the determination, that is an error of law…” (HMRC v. Arkeley Limited  UKUT 393 (TCC), §25, Judges Berner and John Clark).
- Erroneous observations on the law not necessarily error of law
“It will be apparent from the preceding paragraphs that we consider some of the FTT’s observations on the law to be open to criticism. Does it follow that the FTT failed to apply the correct legal test when arriving at its decision?... At this point, we unfortunately find that our views diverge. Judge Nowlan considers that errors of law led the FTT to apply the section 123(4) test in a wrong manner. Mr Justice Newey, in contrast, has not been persuaded that the FTT applied an incorrect legal test.” (HMRC v. Lloyds TSB Equipment Leasing (No.1) Ltd  UKUT 368 (TCC), §86…88, Newey J and Judge Nowlan).
- Error of law but not set aside
Where the appellate tribunal or court is sure that the error of law would have made no difference to the result or where the appellate court would make the same decision based on a change of circumstances (typically in relation to procedural matters), it is unnecessary to set the decision aside.
" We have found that the Decision discloses a number of errors of law. That fact does not necessarily mean that we should allow the appeal and set aside the Decision. Section 12 TCEA provides that if the Upper Tribunal finds that the making of the relevant decision involved the making of an error on a point of law it “may (but need not) set aside” the decision, and that if it does it must either remit the case to the FTT with directions for reconsideration, or remake the decision. That language clearly indicates that we have a discretion in that respect. It is well established that we should not exercise our discretion to set aside the Decision if we are satisfied, notwithstanding errors of law in the Decision, that there was a sufficient basis in the findings of the FTT which were fully reasoned and not subject to challenge to justify its conclusions on the relevant issue." (Danpal v. HMRC  UKUT 86 (TCC), Judge Herrington and Judge Bowler)
“Section 12 TCEA provides that if the Upper Tribunal finds that the making of the relevant decision involved the making of an error on a point of law it “may (but need not) set aside” the decision. That language clearly indicates that we have a discretion in that respect. In our view, we should not exercise our discretion to set aside the Decision if we were satisfied, notwithstanding errors of law in the Decision, that there was a sufficient basis in the findings of the FTT which were fully reasoned and not subject to challenge to justify its conclusions that the Appellants knew that its transactions were connected with fraud.” (BTS Specialised Equipment Ltd v. HMRC  UKUT 159 (TCC), §67, Warren J and Judge Herrington – the reference to a “sufficient basis” remaining seems to assume that the FTT would have come to the same conclusion if at all possible rather than fairly assessing all the evidence).
“Even if I had thought the Judge had erred in law (which I do not) in reaching her conclusion and were thus to allow the appeal, it would then be open to me to take account of the change of circumstance (namely the bringing of the new appeals and their joinder with the other appeals) and to exercise my functions under section 12 of the Tribunals Courts and Enforcement Act 2007 by declining to set aside her actual decision (ie striking out the ground of appeal) or by remaking the decision to the same effect.” (Spring Salmon & Seafood Ltd v. HMRC  UKUT 488 (TCC), §45).
“although we have taken the view that the FTT erred in law in not adopting the correct approach to the determination of an application for costs following the withdrawal of a party…we have concluded that adoption of the correct approach would not lead to any different result. We do not therefore set aside the FTT’s decision.” (Tarafdar v. HMRC  UKUT 0362 (TCC), §45, Judges Berner and Powell).
- Decision only set aside to the extent appealed
“The Appellant did not seek to appeal against any of the adverse findings in the original First-tier Tribunal decision. The Upper Tribunal’s decision states at : “The appeal before the FTT also related to certain expenses for subsistence and taxi fares. Mr Healy’s appeal was dismissed in relation to those expenses and he did not pursue those claims any further.” The Upper Tribunal’s decision gave no consideration to the First-tier Tribunal’s reasoning in respect of those other claims. When the Upper Tribunal “set aside” the original First-tier Tribunal decision, it is necessarily implicit that it did so only in relation to the claim in respect of the accommodation expenses, which was the one matter in respect of which HMRC had sought and been granted permission to appeal…Accordingly, the Tribunal does not consider the Appellant’s arguments relating to the claims for expenditure on subsistence and taxi fares.” (Healy v. HMRC  UKFTT 233 (TC), §§48…48).
Set aside for fraud
Not possible if appeal allowed
“the solution which would ordinarily be appropriate, namely, that the Revenue should institute proceedings for having the commissioners’ order set aside, cannot be followed here, since as soon as the order of this Court is drawn up there will no longer be in existence any effective order of the commissioners and hence nothing which any originating proceedings by the Revenue could operate to strike down.” (Brady v. Group Lotus  STC 635 at 645 - 6); Balcombe LJ pointed out that the fresh decision of the commissioners would be capable of being challenged as being improperly obtained (647))
Query whether only a decision the FTT actually made can be remade by the UT
“Mr Steele submits that, having allowed the Commission’s appeal, I can decide whether an extension of time should be granted, contending that I have the same power as that conferred on the F-tT by rule 5(3)(a). He relies on section 12(2)(b)(ii) and 12(4) Tribunals, Courts and Enforcement Act 2007. It is, perhaps, not clear that I do have that power since the decision of the F-tT which I have set aside is that the appeal was made in time. The Judge did not need to address whether an extension of time should be granted and he did not in fact consider what he might have done had he decided that the appeal was out of time…I do not propose to resolve this particular point.” (Charity Commission v. Hunt  UKUT 210 (TCC), §§34…37, Warren J)
FTT made a material error of law
“If the Upper Tribunal were right to find that the FTT made a material error of law, it was for the Upper Tribunal to re-make the decision and it does not matter whether any of the other criticisms it made of the FTT were well-founded” (Airtours Holidays Transport Ltd v. HMRC  EWCA Civ 1033, §88, Vos LJ).
Appellate court to remake decision unless failure to do so would involve an unavoidable injustice
“Accordingly, while it is vital to recognise his right to a fair trial (which includes a right not to have any issues determined by reference to inadmissible evidence), it must be acknowledged that the husband has had a full trial – perhaps one may say, not entirely flippantly, too full a trial…Further, in a case such as this, where all the oral evidence which the parties wish to put before the court has been adduced and cross-examined, an appellate court is in a much stronger position to reach a confident and concluded view on the facts than it would be in an appeal against an ordinary grant of summary judgment (as in Allied Fort). The appellate court knows what the parties and their witnesses would say in the witness box as they have said it. So, in this case, we can be informed about all the admissible oral evidence which the husband wanted to put before the court, including the results of any cross-examination of the wife’s witnesses. It is clearly open to an appellate court to make findings of fact in such circumstances, given that the trial judge could or should have done so: see CPR 52.10(1) (whereby the Court of Appeal has “all the powers of the lower court”), and rule 29(1) of the Supreme Court Rules 2009 2009/1603 (whereby “the Supreme Court has all the powers of the court below”)… It is also germane to bear in mind the overriding objective in CPR 1.1, which includes requirements that courts “deal… with cases … at proportionate cost”, “sav[e] expense”, “ensur[e] that [a case] is dealt with expeditiously”, and “allot … to it an appropriate share of the court’s resources”. These factors justify a much greater reluctance on the part of an appellate court to order a rehearing in a case such as this (particularly when one bears in mind that the hearing before Moylan J lasted around eight days) than would be justified when considering whether to direct a hearing rather than award a party summary judgment…All these factors make it quite clear that, on this appeal, we should not remit the issue whether there was material non-disclosure, provided that it would not involve an unavoidable injustice to the husband not to do so.” (Gohil v. Gohil  UKSC 61, §§52…53…54…55; see also §34).
No unavoidable injustice if appellate court can “safely” reach conclusion
“The hurdle which has to be crossed in order to establish that there would be no risk of injustice to the husband can be expressed in more than one way. It could be said that we have to be satisfied that (i) Moylan J would have decided that there had been material non-disclosure even if he had not heard or seen the inadmissible evidence obtained under the 2003 Act, or (ii) looking at the totality of the admissible evidence in this court, we can safely conclude for ourselves that there has been material non-disclosure, or (iii) if the issue was remitted for a re-hearing, the judge could only realistically come to that conclusion in the light of the totality of the admissible evidence…In my view, a party such as the wife on this appeal can succeed provided that the court is satisfied that any one of the three requirements is satisfied, although it will, I suspect, be a rare case where only one (or even two) of those requirements is (or are) satisfied: it is particularly hard to imagine circumstances where requirements (ii) and (iii) would not march together.” (Gohil v. Gohil  UKSC 61, §§56…57).
“We have found that there are errors of law in the Decision. Accordingly, we set aside the Decision. As we have the same papers before us as the FTT had and the facts are not disputed, we consider that we are able to remake the decision on the material before us and there is no need to remit the case to the FTT." (ETB (2014) Limited v. HMRC  UKUT 424 (TCC), §29, Judges Sinfield and John Clark).
Appellate court to be provided with transcripts and evidence below
“I would be more comfortable about reaching that conclusion if we had been provided with the transcripts of the evidence before Moylan J. That would normally be the appropriate course where an appellate court is being asked to decide for itself a question of fact which was in issue before a judge who heard relevant oral evidence. However, we have been provided with around 500 pages of documents (including applications, submissions, answers to questionnaires, letters, affidavits, and a forensic accountant’s report), as well as the Judge’s full analysis of the evidence. Furthermore, it has not been suggested that the husband has been unable to put before this court any of the testimony given to Moylan J which he wishes us to see, or that there is any relevant material in the oral evidence which was not apparent from the judgment. Accordingly, albeit with some hesitation, I am prepared to accept that requirements (ii) and (iii) are satisfied.” (Gohil v. Gohil  UKSC 61, §58).
Reading transcript no substitute for live evidence where credibility at issue
" However, we regard that as unworkable. Reading a transcript is no substitute for hearing live evidence, particularly when questions of credibility are in issue." (HMRC v. Beigebell Ltd  UKUT 176 (TCC), Judge Richards and Judge Cannan)
Remaking decision on issues requiring assessment of expert evidence (parties have no enthusiasm for remittance and appellate court can deal with point fairly)
“[The FTT] have not set out their reasons for getting to their conclusion, and the terms of the Decision suggest they thought it was a matter of simple logic with no-one arguing otherwise… That means that there is an error in the FTT's reasoning. Filling that gap requires some consideration of competing expert evidence, so I have to consider whether it is for me to fill that gap on this appeal or whether the point should be remitted to the FTT to consider it further… Neither party expressed any enthusiasm for a remittance to the FTT at the main hearing before me… I have decided, with some reluctance, that I should deal with the points myself. My reluctance stems from the lack of assistance that I originally received on the point. While these questions were debated between counsel, some of them at length, they tended to be the subject of assertion by counsel as to what the analysis should be as if it were somehow obvious or plain, without the necessary reference to the detail of the expert evidence below. That evidence comprised original reports, supplementary reports and an agreed statement, together with significant cross-examination. A full consideration of that evidence, such as ought to have occurred in the FTT, requires the clear identification of all the relevant parts of the evidence so that I could easily find that evidence and consider it in the manner which would have been open to the FTT. I did not receive that degree of assistance until the matter was restored by me for further argument… As a result I believe I can act fairly to the parties, and properly in an appellate jurisdiction, in deciding the point.” (Greene King PLC v. HMRC  UKUT 0178 (TCC), §§69…70…71).
Remaking decision based on objective characteristics (and remitting other questions)
" We initially entertained some doubt as to whether we should remake the Decision as we were conscious that we had heard no live evidence and Mr Donmall, in his oral submissions had not taken us to any of the witness evidence that was before the FTT. However, Mr Donmall has persuaded us that the central question of whether the ADP is a “book” or not depends almost exclusively on the objective characteristics of the ADP. Moreover, as Mr Donmall correctly observed, this Tribunal has all the evidence of the objective characteristics of the ADP that was before the FTT (consisting primarily of a photocopy of a blank ADP). In short, we agree with Mr Donmall that we are just as well placed as the FTT to apply the correct legal test to the objective characteristics of the ADP in order to decide whether it is a “book” and, in the section that follows, we will consider that issue." (HMRC v. Gardarsson  UKUT 99 (TCC), Judge Raghavan and Judge Richards)
UT not bound by FTT’s findings of fact when remaking decision
“Having found errors of approach in the consideration by the First Tier Tribunal, it was appropriate for them [the UT] to exercise their power to remake the decision, making such factual and legal judgments as were necessary for the purpose, thereby giving full scope for detailed discussion of the principle and its practical application. Although no doubt paying respect to the factual findings of the First Tier Tribunal, they were not bound by them. They had all the documentation before the First Tier Tribunal, including witness statements, and transcripts of the evidence and submissions, and detailed written and oral submissions. It is clear that they undertook a thorough exercise involving a hearing lasting six days.” (HMRC v. Pendragon plc  UKSC 37, §50, Lord Carnwath).
“As Lord Carnwath pointed out in HMRC v Pendragon at paras 47 and 48, that provision gave an extended jurisdiction to the UT as compared with that which had previously been enjoyed by the High Court on an appeal under the previous law. That extended jurisdiction recognised that under the new tribunal system the UT is itself a specialist Tribunal with the function of ensuring the adoption of a consistent approach to the determination of questions of principle arising under particular statutory schemes. In the course of his submissions, Mr Anderson accepted that this provision gave the UT power to revisit questions of fact in the event that it found that the FTT had made an error of law. Clearly if certain findings of fact have been influenced by a mistaken view of the law, or the questions of fact arising for determination have been focused in the wrong way because of a mistaken understanding of the law, it would be appropriate to revisit such findings. Clearly, too, if, because of a mistaken appreciation of the law, the FTT has failed to make findings on a particular issue, then it will be appropriate for the UT to make the necessary findings on the evidence before it.” (Pattullo v. HMRC  UKUT 270 (TCC), §58, Lord Glennie).
“However, once an error of law has been established – whether on the application of the Edwards v Bairstow test or because of some other kind of error of law - it is important to recognise the power of the Upper Tribunal under section 12 of the Tribunals, Courts and Enforcement Act 2007 to re-make the decision of the FTT and, in doing so, to make appropriate findings of fact. At that stage, the Upper Tribunal is not bound by the FTT’s findings of fact and can either make its own findings, if it has sufficient information to do so, or remit the case to the FTT if does not.” (Massey v. HMRC  UKUT 405 (TCC), §83)
UT cannot interfere with finding of fact unless tainted by error of law or on Edwards v. Bairstow grounds
“I do not regard anything said by Lord Carnwarth in Pendragon as permitting the UT to interfere with finding of fact made by the FTT which are not tainted by some error of law as explained above. The second point is that many of the findings of the FTT which are now under attack were based upon hearing oral evidence. I have not had the advantage of seeing or hearing the witnesses and, unlike the UT in Pendragon, I have not been provided with transcripts of the evidence…I mention it simply to show that in this case the UT is not in the same position as the UT in Pendragon and is not in as good a position as the UT in that case to determine whether the conclusions drawn by the FTT on the evidence it heard are sound.” (Pattullo v. HMRC  UKUT 270 (TCC), §59, Lord Glennie).
“As we have said, Lord Carnwath has made comments about the special role of the Upper Tribunal in the (now) not so new tribunal system, in Jones and in Pendragon; in the latter case he was expressing the unanimous view of the Court. We do not, however, read his comments as an indication that the Upper Tribunal has some special exemption from the restrictions to which Lewison LJ referred.” (Degorce v. HMRC  UKUT 447 (TCC), §92, Hildyard J and Judge Bishopp).
“Pendragon shows that, where an error of law has been established (whether on the application of the Edwards v Bairstow principle or because of some other kind of error of law), the Upper Tribunal may exercise its power under section 12 of the TCEA 2007 to re-make the decision of the FTT. In doing so, the Upper Tribunal may make such findings of fact as are necessary. Although the Upper Tribunal should respect the FTT’s findings of fact, it is not bound by them and can either make its own findings, if it has sufficient information to do so, or remit the case to the FTT if does not.” (Why Pay More For Cars Limited v. HMRC  UKUT 468 (TCC), §28, Newey J and Judge Sinfield).
UT remaking decision based on substance of oral evidence not considered by FTT
" We must then decide whether to remit the decision to the FTT or re-make it. At first blush, the nature of the error we have found in relation to Mr Warren’s oral evidence would point towards a remittal (obviously to a differently constituted tribunal), with the FTT being directed to hear evidence again from Mr Warren (assuming that is practicable), which it then reconsiders and deals with in its decision. However, we do not consider that that would be a desirable or proportionate outcome, or would best further the overriding objective, given the likely delay and cost resulting from a remittal. We have therefore decided to re-make the decision, taking into account the substantive points which Mr Boch says were made by Mr Warren in oral evidence but ignored by the FTT in its written decision. By adopting that approach, effectively giving the Appellant the benefit of the doubt as to whether the disputed oral evidence was in fact given, we can avoid the disadvantages of a remittal." (The How Development 1 Ltd v. HMRC  UKUT 84 (TCC), Judge Thomas Scott and Judge Brannan)
Re-making exercise of discretion
Base on facts as they are now known to be rather than as they were thought to be at time of original decision (at least in relation to relief from sanctions)
"...The question, then, is whether at stage (iii) the circumstances are nonetheless such that FAAN should be granted relief in respect of the Enforcement Order.
 It is axiomatic that a discretion of this kind must, if it calls to be re-exercised on appeal, be undertaken by reference to the facts as they now are rather than, if significantly different, as they were at the time when the discretion was originally (or last) exercised..." (AIC Ltd v. Federal Airports Authority of Nigeria  UKSC 16)
Remitting case back to FTT (exercise of discretion)
“The Judge concluded that there should be a remitter to the person, or persons, to whom the responsibility for evaluating whether there were reasonable grounds for believing that the taxpayer had been overcharged to tax and in what amount has been allocated by Parliament. I cannot see how the Judge can validly be criticised for doing that. The fact that there is an appeal validly brought to the Judge on the ground of a procedural error by the Special Commissioner does not mean that he, in turn, commits an error of law in refusing to decide points of law not dealt with by the Special Commissioner. I am not impressed by the argument based on a possible multiplicity of hearings. There is an advantage in every level of tribunal performing the functions envisaged for it by Parliament, rather than having a point considered and determined for the first time at an appellate level.” (Williams v. Pumahaven Ltd 75 TC 300 at 338, §21 per Peter Gibson LJ).
Cautious approach to remission
“Remission is not a matter of right but of discretion – a discretion to be carefully exercised in each case and dependent upon the special circumstances in which it stands” (Foulsham v. Pickles 9 TC 261 at 291);
“it is clear that exercise of the power of remitter…calls for a cautious approach” (Yuill v. Wilson  STC 460 at 470, Lord Edmund-Davies);
No remittance to allow party to correct evidential gap in their case (apply burden of proof)
“…while I agree that the tribunal’s finding that the whole of the tax was passed on must be set aside, I do not agree with him that the case should be remitted to the tribunal for it to reconsider the matter. In my judgment the defence of unjust enrichment to the repayment claim cannot be made out in full or in part, and HMRC should not be allowed another opportunity to seek to persuade the tribunal that the defence was made out in part. It could not do so without additional evidence being adduced, and I see no reason for that to be allowed.” (Baines & Ernst Ltd v. HMRC  EWCA Civ 1040, §70).
“[The taxpayer] argued for a remitter with permission to adduce fresh evidence generally on the para 45 issue. However, such an order should only be made in exceptional circumstances, and I can see no good reason in the present case why the Company should be given a second chance to adduce evidence which it could and should have adduced at the first hearing. HMRC cannot in any way be blamed for the Company's failure to come to the hearing armed with such evidence.” (HMRC v. Household Estate Agents Ltd  EWHC 1684 (Ch), §60 – HMRC’s appeal allowed after applying burden of proof, which was on taxpayer).
" As we have indicated above, the evidence before the FTT, as reflected in the hearing bundle provided to us, is extremely limited. As we have explained, neither party adduced evidence to support their respective assertions, that is by Websons on the one hand that the Review Decision was never received and by HMRC, on the other hand, that its records demonstrated that the letter containing the Review Decision was posted to Websons. HMRC made no assertion as to whether or not the 13 letter was sent to Websons’ representative, who, the correspondence shows, was duly authorised to communicate with HMRC a few days before the Review Decision was made.
 We have therefore concluded that in the circumstances, we cannot properly do 5 justice between the parties were we to seek to determine the matter solely on the basis of the written material before us. Neither would the FTT be in any better position were the matter to be remitted to the FTT for a fresh decision to be made on the basis of that material." (HMRC v. Websons (8) Ltd  UKUT 154 (TCC), Judge Herrington and Judge Andrew Scott)
No remittance to allow party to put case on a point it bore the burden of proof
“In the absence of HMRC having put a positive case to the FTT on the competence and time limit issues, the only course open to the FTT was to allow the appellants’ appeals. In those circumstances, to remit the appeals would allow HMRC to have a second bite of the cherry. That, in our judgment, would not be in the interest of justice and fairness.” (Burgess v. HMRC  UKUT 578 (TCC), §§53…58, Judges Berner and Tom Scott).
Scope of remission should be properly defined
“even had [remission] been called for, I have respectfully to say that it could not properly have given rise to the unrestricted order made by the Court of Appeal in this case. This left unspecified the point or points on which it desired the commissioners to deliberate…And the parties were granted wholly unrestricted liberty to adduce further evidence, so that they would not have breached the order even had they called new evidence on new points, and in the result the commissioners could with strict propriety have embarked on a virtual rehearing of the whole case.” (Yuill v. Wilson  STC 460 at 470)
Incomplete findings of fact (reason for remitting)
“if the Commissioners had failed to include or to allude sufficiently to some topic that was brought before them by way of evidence we should remit to put that right.” (Bird v. IRC 12 TC 785 at 795);
“the court may remit a case to the commissioners for further findings if these be necessary to determine a point of law raised in the case” (Yuill v. Wilson  STC 460 at 469, Lord Edmund Davies see also Leeming v. Jones 15 TC 333 at 340)
But note: whereas the High Court hearing a tax appeal had no power to find facts or make further findings of fact (Brady v. Group Lotus  STC 635 at 640), the Upper Tribunal does have such power.
Failure to answer vital question
“If, as I think, the Commissioners never decided the vital question in this case, then one must examine the facts which have been found to see whether there is any evidence on which the Commissioners could now decide in favour of the Appellant. If there is, the case must be sent back to them, but if there is not, there is no reason to send the case back.” (Reynolds and Gibson v. Crompton 33 TC 288 at 312, Lord Reid).
Case dependent upon hearing oral evidence
“As we have found, it is necessary to establish on a subjective basis what was in Mr Healy’s mind when he entered into the tenancy agreement. We have set out above some of the issues that need to be explored in that context. Not having Mr Healy 10 before us we are unable to carry out that exercise. That is properly a matter for the FTT.” (HMRC v. Healy  UKUT 337 (TCC), §85, Judges Herrington and John Clark – FTT failed to apply wholly and exclusively test properly).
Length of time elapsed (reason against remitting)
“I bear in mind that this case has gone on for a very long time and that [the taxpayer] is no longer young. In all the circumstances, I take the view that this is not a case where it would be appropriate to exercise our discretion to remit the matter to the Commissioners.” (HMRC v. Kearney  EWCA Civ 288, §51).
Material error of law which had a material bearing on the factual determination where a decision either way on the facts would be possible
" For these reasons, I would allow HMRC's appeal and dismiss PGMOL's Respondent's Notice. The FTT and the UT each erred in law in their approaches to the question of mutuality of obligation in the individual contracts, and the FTT erred in law in its approach to the question of control in the individual contracts. It is not necessary for me to reach a view about the overarching contracts. If the other members of this Court agree with those conclusions, my provisional view, subject to any submissions which the parties may wish to make about disposal, is that the appeal should be remitted to the FTT for the FTT to consider, on the basis of its original findings of fact, whether there were sufficient mutuality of obligation and control in the individual contracts for those contracts to be contracts of employment. I do not consider that it would be appropriate for this Court to make those assessments, which are assessments best made by a specialist fact-finding tribunal, not an appellate Court." (HMRC v. Professional Game Match Officials Limited  EWCA Civ 1370, Laing LJ)
“counsel…submits that the FTT made one or more material errors of law which had a material bearing on their factual determination. If that is right, he accepts that this is a case where a decision either way on the facts would have been possible, so the unfortunate consequence would be that the case would have to be remitted for a second rehearing.” (Brunel Motor Company Ltd v. HMRC  UKUT 6 (TCC), §21).
Detailed evidence needs to be considered
"The problem with this submission was, and remains that the material before the Judge at the FTT Hearing was extensive. In his decision refusing permission to appeal the Judge referred to a hearing bundle which he described as comprising over 1000 pages, including all the witness statements filed in the Second Appeal, and their exhibits. We do not consider that we are in any position to give a decision on this material, which we were not required to master, and did not need to master for the purposes of hearing the Strike Out Appeal." (HMRC v. Tasca Tankers Limited  UKUT 88 (TCC), Edwin Johnson J and Judge Andrew Scott)
Material error of law where almost no dispute as to primary facts - not remitted
" Ms Hicks submitted that, if we were minded to set aside the Decision, we should not remake it ourselves and instead should remit it back to the same FTT for reconsideration. She argued that to decide whether the hypothetical contracts were for employment or self-employment, it is necessary to paint a picture from an accumulation of detail and then stand back to assess the overall result, a task which she submitted was best performed by the FTT who had all relevant factual evidence before them.
 We acknowledge that, to a degree, the determination of whether the hypothetical contracts were of employment or self-employment involves a multi-factorial assessment. However, once Ground 1(a) is resolved, there is almost no dispute between the parties as to the terms of the hypothetical agreements, nor as to other findings of primary fact. Moreover, it is not suggested that the FTT ought to have made primary findings of fact on any other issues relevant to the determination of the issues before it. Therefore, we consider that we can ourselves perform the necessary evaluation by reference to the FTT’s findings of primary fact and that it would be proportionate for us to do so." (HMRC v. Kickabout Productions Ltd  UKUT 215 (TCC), Zacaroli J and Judge Jonathan Richards)
No issue of credibility and detailed findings of primary fact - not remitted
" ... We are grateful to [the partie] for drawing our attention to the decision of the Upper Tribunal in Synectiv Limited v HMRC  UKUT 99 (TCC) which explained why, in the circumstances of that case, the Upper Tribunal decided to remit a decision to the FTT and not to remake it. By contrast with the circumstances of that case, remaking the Decision will not involve any assessment of witness credibility. Given that the FTT has made detailed findings of primary fact, we consider that we are able to remake the Decision and that this is the more proportionate course to follow." (HMRC v. Bella Figura  UKUT 120 (TCC), Nugee J and Judge Richards)
New FTT may be bound by unchallenged findings in original decision
" We see no difficulty with directing that the FTT’s findings of primary fact relating to Shark Partners Ltd (and, to the extent relevant, its findings relating to SD 2013 Ltd) should continue to stand in the appeal as remitted. Those findings related to the first issue before the FTT which we have summarised at  above and there has been no challenge to the FTT’s conclusions on that issue.
 With the exception of findings relating to Shark Partners Ltd and SD 2013 Ltd we will not, therefore, make any directions that existing findings of primary fact are to stand in the appeal as remitted. We would, however, urge the parties to adopt a common-sense and pragmatic approach. The proceedings both before us and the FTT demonstrate that very few primary facts are in dispute. The parties should therefore seek to ensure that, in the remitted appeal, as many primary facts as possible are agreed so as to enable the hearing of that appeal to be reasonably short and to take place in a reasonable timescale." (HMRC v. Beigebell Ltd  UKUT 176 (TCC), Judge Richards and Judge Cannan)
Bound where there is an error in relation to the burden of proof
" HMRC invited us to remake the Decision in such a way that Mr Zaman’s appeal against the PLN is dismissed. The FTT heard substantial evidence over the course of three days. We have not heard, or considered in detail, any of that evidence and in circumstances where the key issue is whether, on the basis of that evidence, Mr Zaman has discharged the evidential burden of challenging the assessment to VAT on Zamco, we consider it would be inappropriate for us to remake the Decision. In our view the proper course is to remit the case back to the same panel of the FTT for reconsideration in light of the conclusion we have reached. As we record above, neither party challenged any of the FTT’s underlying (or primary) factual findings and we should make it clear that the reconsideration of the appeal by the FTT is not an opportunity to ask the FTT to disturb those findings of primary fact or make new findings of primary fact." (HMRC v. Zaman  UKUT 252 (TCC), Judge Andrew Scott and Judge Jennifer Dean)
General rule: no new evidence on remittance
“Accepting…that in all the circumstances this case should go back to the General Commissioners in order that they may apply their minds to the only real issue, I can see no ground why either side in this dispute should be permitted to adduce any further evidence.” (Murphy v. Australian Machinery and Investment Co Ltd 30 TC 244 at 260);
“It is a well-established and salutary rule that the parties to an appeal to the Court should not, in the absence of special circumstances, be enabled to go back to the Commissioners and call fresh evidence on issues which were raised in the original proceedings and as to which they had full opportunity of calling such evidence.” (Bradshaw v. Blunden No.2 39 TC 73 at 80);
"The exception is that it does seem to us to be fair that both parties should be limited, at the reconsideration of the Strike Out Application, to the evidence upon which they relied at the FTT Hearing (the hearing of the Strike Out Application), unless permission is obtained from the FTT to adduce further evidence for the reconsideration of the Strike Out Application. We do not consider it right to shut the parties out completely from adducing further evidence, assuming that they should wish to do so, but the starting position will be that such further evidence is not permitted unless the FTT can be persuaded to grant permission for such further evidence. We therefore include a direction to this effect in our decision." HMRC v. Tasca Tankers Limited  UKUT 88 (TCC), Edwin Johnson J and Judge Andrew Scott)
“[The taxpayer] argued for a remitter with permission to adduce fresh evidence generally on the para 45 issue. However, such an order should only be made in exceptional circumstances, and I can see no good reason in the present case why the Company should be given a second chance to adduce evidence which it could and should have adduced at the first hearing. HMRC cannot in any way be blamed for the Company's failure to come to the hearing armed with such evidence.” (HMRC v. Household Estate Agents Ltd  EWHC 1684 (Ch), §60).
More detail required to reach a decision
" Furthermore, it appears to us that this is one of those rare cases where it would be appropriate for the FTT to be able to conduct the fresh hearing on the basis not only of the evidence that was originally before it but also on the basis of such further evidence that the parties may wish to adduce in relation to the particular issues in respect of which the FTT should have made (but did not make) findings of fact." (HMRC v. Websons (8) Ltd  UKUT 154 (TCC), Judge Herrington and Judge Andrew Scott)
“We consider that more detail about the physical separation of the land is required. Also, we do not have a sufficient understanding of the methods of cultivation used to grow the asparagus. We consider that we would need to have a detailed understanding of the use of the tractor and other machinery and also the level of skill required to grow and harvest the asparagus. It may also be necessary to have some understanding of asparagus growing more generally in order to establish whether the distinction between farming and market gardening is a relevant one in relation to asparagus growing. Accordingly, we conclude that the case should be remitted to the FTT to consider afresh whether the land on which the asparagus was grown was a garden and thus the asparagus business was market gardening or farming.” (Thorne v. HMRC  UKUT 349 (TCC), §53, Judges Sinfield and Falk).
Re-using original oral evidence
“Apart from anything else, I have, as I have indicated, next to no knowledge of the oral evidence that the FTT heard. That being so, the right course must, I think, be to remit the matter to the FTT. If Judge Poole and Mr Silsby are available, I can see no reason why they should not deal with the case. In that event, it will be for them to consider whether they can dispose of it satisfactorily without a full re-hearing, on the basis of the evidence that was before them when they made the Decision. A full re-hearing will certainly be required, however, if Judge Poole and/or Mr Silsby are unavailable, so that the matter has to be handled by a differently-constituted FTT.” (Brookes v. HMRC  UKUT 214 (TCC), §20, Newey J).
“This is not a suitable case in which the Upper Tribunal can reach its own decision on the issue of residence or non-residence, nor did either party suggest that it could do so. In those circumstances, I shall remit the case for re-hearing by a differently constituted First-tier Tribunal. The parties agreed in the course of submissions that, in view of the transcripts of the extensive cross-examination of witnesses, it would be unnecessary for there to be oral evidence at the re-hearing.” (HMRC v. Glyn  UKUT 551 (TCC), §102).
Rehearing entire case where it depends on assessment of state of mind
“…although the prospect of a further lengthy hearing in the FTT long after the events in question occurred is deeply unattractive, since the question as to whether the Appellants knew or should have known that their transactions were connected with fraud depends entirely on Mr Tomlinson’s state of mind, the assessment of which depends to a large degree on an evaluation of the evidence that Mr Tomlinson gave orally and which we have not heard, we cannot see how we could possibly remake the decision. In those circumstances, the only option open for us would be to remit the matter to the FTT for a fresh hearing before a different tribunal…” (BTS Specialised Equipment Ltd v. HMRC  UKUT 159 (TCC), §69, Warren J and Judge Herrington).
Reusing parts of the original decision and original evidence
“I read that as a direction that F-tT 1’s decision be set aside in its entirety, and that it be re-made (by F-tT 2) in a prescribed manner. The prescription included the requirement that F-tT 2 should respect F-tT 1’s findings of fact at the first stage of the enquiry save in relation to the allegedly impossible journeys.” (HMRC v. SDM European Transport Limited  UKUT 625 (TCC), §145, Judges Bishopp and Cannan).
UT remaking decision and differing from FTT’s assessment of witness credibility
“I have throughout been conscious of the point that I have already made that I have not heard the oral evidence, and in particular the evidence of the drivers. That F-tT 1 believed their evidence in preference to the other evidence, even if they did not explain their reasons, is a factor to which I must necessarily attach considerable weight, and I must correspondingly be cautious before coming to conclusions from which it follows that the drivers who claimed that they did deliver the goods gave untruthful evidence to F-tT 1. I am very conscious of the point made by Judge Cannan in his dissenting decision that it is not permissible to make findings of dishonesty, as a finding that the goods were diverted before delivery necessarily implies, without first giving the person said to be dishonest an opportunity to deal with the allegation. It was, however, put to those of the drivers who gave evidence, in cross-examination, that some of their journeys were impossible and that the goods were not delivered to the Aldi warehouse. I have concluded that the combination of assessments based upon complicity in the diversions and the cross-examination put the drivers sufficiently on notice of what was being said against them, and that they had an adequate opportunity of dealing with it. In addition, the issue in this appeal is not whether the drivers were party to a conspiracy, but whether SDM has discharged the burden of showing that the goods were delivered. For those reasons I have concluded that if I am satisfied that the evidence of delivery at the Aldi warehouse cannot be true, I am bound to reject it even though I have not heard it myself. It should also be remembered that SDM invited us to remake the decision without hearing the drivers again.” (HMRC v. SDM European Transport Limited  UKUT 625 (TCC), §161, Judge Bishopp (Judge Cannan dissenting at this point)).
Differently constituted FTT
If UT remits the case, it may direct a differently constituted FTT (TCEA 2007, s.12(3)(a)); no such power if UT remakes the decision, but there are further issues to be decided, but UT may suggest this as appropriate (Portland Gas Storage Ltd v. HMRC  UKUT 0270 (TCC), §60, §62);
“Ordinarily the remitter of a tax appeal would be to the same body of commissioners who had originally heard the case…” (Brady v. Group Lotus  STC 635 at 640);
- Relevant factors
“46.1 Proportionality must always be a relevant consideration. Here the award was for £900,000, and although we are conscious that ordering a fresh hearing in front of a different tribunal would add considerably to the cost to parties on both sides who have already invested in solicitors and counsel, both at the tribunal and on appeal (in the case of the applicants, two counsel for the appeal), sufficient money is at stake that the question of costs would from the one point of view not offend on the grounds of proportionality and from the other not be a decisive, or even an important, factor. Similarly the distress and inconvenience of the parties in reliving a hearing must be weighed up, but (a) are rendered necessary in any event by the decision to set aside the original decision and (b) will not be greatly less by virtue of the extra time taken by a fully, rather than partially remitted, hearing, the main distress and inconvenience being caused by the matter being reopened at all.
46.2 Passage of time. The appellate tribunal must be careful not to send a matter back to the same tribunal if there is a real risk that it will have forgotten about the case. Of course, tribunals deal with so many different cases per month that it is impossible for them to carry the facts in their minds, nor would they be expected to do so. But they can normally refresh those minds from the notes of evidence and submissions if the case occurred relatively recently. This case was a relatively long one, and will not on that basis alone have completely evanesced from the minds of the tribunal. It was only just over a year ago. That in itself is quite a long time, though the lengthy reserved decision sent to the parties on 30 July 2003 would have kept the case in the minds of the tribunal at least until then: but in addition they have held a remedies hearing which began in October 2003, the hearing lasting until 18 December, and then required consideration in chambers' meetings in January and March, and did not result in a promulgated decision until as recently as 19 March 2004. We are satisfied therefore that the question of delay and loss of recollection is not a material factor in this case one way or the other.
46.3 Bias or partiality. It would not be appropriate to send the matter back to the same tribunal where there was a question of bias or the risk of pre-judgment or partiality. This would obviously be so where the basis of the appeal had depended upon bias or misconduct, but is not limited to such a case.
46.4 Totally flawed decision. It would not ordinarily be appropriate to send the matter back to a tribunal where, in the conclusion of the appellate tribunal, the first hearing was wholly flawed or there has been a complete mishandling of it. This of course may come about without any personal blame on the part of the tribunal. There could be complexities which had not been appreciated, authorities which had been overlooked or the adoption erroneously of an incorrect approach. The appellate tribunal must have confidence that, with guidance, the tribunal can get it right second time.
46.5 Second bite. There must be a very careful consideration of what Lord Phillips inEnglish (at paragraph 24) called 'A second bite at the cherry'. If the tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach
 IRLR 763 at 774
the same result, if only on the basis of the natural wish to say 'I told you so'. Once again the appellate tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised.
46.6 Tribunal professionalism. In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission. By professionalism, we mean not only the general competence and integrity of the members as they go about their business, but also their experience and ability in doing that business in accordance with the statutory framework and the guidance of the higher courts. Employment law changes; indeed it has been a rapidly developing area of the law. Employment tribunals are therefore all too familiar with the need to apply a different legal approach to a case today from that which they applied last year, or even last week, where the law has changed, although the cases may be on all fours as regards their facts. Some areas of employment law have not been easy, and the approach to be adopted in considering whether there has been race or sex discrimination in a case such as this is just such a matter which has understandably caused problems for tribunals. It follows that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision described at 46.4), then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal.” (Sinclair Roche & Temperley v. Heard  IRLR 763, §46).
- Remit to same decision maker unless that would cause reasonably perceived unfairness or impractical
“The principle as it seems to me must be that remission will be made to the same decision maker unless that would cause reasonably perceived unfairness to the affected parties or would damage public confidence in the decision making process. The basis on which the court will approach these two interlocking concepts of "reasonably perceived unfairness to the affected parties" and "damage to the public confidence in the decision making process" may depend heavily on the circumstances of the remission.
 A variety of factors will undoubtedly be relevant to the application of these principles. I would not want to limit those factors by setting out anything that could be regarded as an exhaustive list as the Employment Appeal Tribunal seems to have attempted to do in the Sinclair Roche case. There will be many different situations which cannot be predicted from a single case.
 It is, however, always the case that the presence of actual bias, apparent bias or confirmation bias would make remission to the original decision maker undesirable, because any such bias would amount both to reasonably perceived unfairness to an affected party and potentially serious damage to public confidence in the decision making process.
 It is important also to understand the kind of unfairness that is relevant to the question of whether the decision should be remitted to the original decision maker. The unfairness concerned is such as contravenes the public law duty of fairness, not some abstract concept of unfairness based on a colloquial usage of that word. It is well established that what fairness requires will vary with the factual circumstances, but what is required in order to achieve fairness is a matter of law, and not a matter of discretion for the decision maker.” (HCA International Limitex v. CMA  EWCA Civ 492).
“…we have decided that the matter should be remitted to the same FTT, unless this would make it impracticable for the appeal to be re-heard within a reasonable time (in which case we would invite the President of the FTT to nominate a different panel). There is no suggestion that the FTT was actually biased, or gave the appearance of bias. Nor do we consider that there is a risk of “confirmation bias”. We make no criticism of the FTT’s handling of the appeal that might cause a reasonable observer to consider that the FTT might become “defensive” and so predisposed to reach the same decision again. Indeed, we are remitting the appeal to the FTT to enable it to find additional facts (relating to the significance of the option referred to at ) which it has not previously found. We are confident that, with the guidance set out in this decision, the FTT would be able to reconsider the matter afresh in a fair and just manner.” (HMRC v. The Ice Rink Company Limited  UKUT 108 (TCC), §52, Judge Jonathan Richards and Judge Cannan).
Terms of decision refusing permission giving reasonable perception that mind already mind up (different Tribunal)
" Applying this principle to this case, we consider that remitting the case to the Judge could reasonably be perceived to be unfair to HMRC. In dealing with the application for permission to appeal against his decision, the Judge reaffirmed his original decision in the clearest of terms. There is nothing necessarily surprising in that but the manner of his so doing does, in our view, create a real risk that the Judge could be perceived as having already made up his mind about the merits of the strike-out application." (HMRC v. Tasca Tankers Limited  UKUT 88 (TCC), Edwin Johnson J and Judge Andrew Scott)
- Fundamental error of approach leading to a fresh tribunal
“As the further hearing will require a completely different approach to that taken in the Decision, involving consideration of different issues and new evidence, we consider that it is appropriate that the case should be remitted to be determined by a differently constituted tribunal. We have in mind that the previous hearing was only one day in length and appeared to focus mainly on the equestrian activities rather than the asparagus business, so we do not think that this is a case where there would be any significant advantage in having an identically constituted Tribunal consider the facts, in contrast to the position discussed in Rank Group plc v HMRC  STC 420 at .” (Thorne v. HMRC  UKUT 349 (TCC), §55, Judges Sinfield and Falk).
“…we would in any event have concluded that the proper course, in view of the fundamental errors in the approach of the FTT, is for this case to be remitted to a new panel to be heard afresh.” (HMRC v. Pacific Computers Ltd  UKUT 350 (TCC), §86, Mann J and Judge Berner).
“The FTT made a fundamental error in its approach, and consequently the way the proceedings were conducted will have been affected by that error. Justice can accordingly, in my view, only be done by allowing the parties to present their respective cases afresh, before a new panel.” (O’Flaherty v Revenue and Customs Commissioners  UKUT 161 (TCC), §38).
- Failure to consider submission leading to a fresh tribunal
“One difficult matter remains. Mr. Prosser requests me to remit the matter to be heard by a different Special Commissioner. I feel some natural hesitation about this for fear that it might be taken as implying that Dr. Brice would not reconsider the matter in a neutral and dispassionate way. I emphasise that I do not believe that for a moment, but for other reasons altogether I have concluded that it would be more satisfactory for everyone, including Dr. Brice, for me to accede to Mr. Prosser's request. It is true that Dr. Brice heard some evidence, but I believe that the evidence went entirely to the second argument, the loan relationships argument, which is no longer in issue. I do not think that a different Commissioner will be incommoded in dealing with the source doctrine argument by reason of not having heard the evidence.” (Williams v. Pumahaven Ltd  EWHC 2237, §43).
- Inadequate reasons leading to a fresh tribunal
“it is not apparent from the decision that the judge addressed her mind to the point at all….[W]e must remit the matter to the First-tier Tribunal. There are some advantages to a further hearing before the same judge, and some to a fresh hearing before a differently-constituted panel. On balance, we consider the latter course is preferable.” (Wrag Barn Gold & Country Club v. HMRC  UKUT 111 (TCC), §40 - 41)
- Failure to understand party's case leading to fresh tribunal
" We emphasise that there is no suggestion that the FTT was biased or gave an appearance of bias. Nevertheless, the FTT reached conclusions favourable to Beigebell without demonstrating that it had adequately engaged with, or appreciated, HMRC’s case and following an application of the wrong test on “means of knowledge”. If we directed the same FTT to reconsider its decision we would see some risk of public confidence in the decision making process being damaged. If Beigebell succeeded at such a re-hearing, a dispassionate observer might legitimately entertain concerns that the FTT was subconsciously influenced by its earlier, flawed, decision. If HMRC succeeded, a dispassionate observer might be concerned that the FTT had “overcompensated”." (HMRC v. Beigebell Ltd  UKUT 176 (TCC), Judge Richards and Judge Cannan)
- Fairness requiring a tribunal that has not previously expressed its conclusions
" We also consider that the matter should be determined before a new panel. This is not in any way a criticism of the original FTT panel but is simply to avoid any concern that a dispassionate observer would consider the panel to be subconsciously influenced by its earlier decision (see Revive Corporation Limited v HMRC  UKUT 320 TC (at ))." (Marano v. HMRC  UKUT 113 (TCC), Fancourt J and Judge Tilakapala)
" We consider the matter should (as both parties acknowledged) take place before a new panel. This does not stem in any way from any criticism of the judge but is so as to avoid any concern that a dispassionate observer would consider the panel had been subconsciously influenced by its earlier decision (see Revive Corporation Limited v HMRC  UKUT 320 (TCC) (at )." (WM Morrison Supermarkets Plc v. HMRC  UKUT 20 (TCC), Judge Raghavan and Judge Brannan)
“We do not consider that it would be appropriate to remit the matter to the same constitution of the F-tT. We consider that fairness and justice requires that the matter is decided by a tribunal which has not previously expressed its conclusions on the matters in dispute.” (HMRC v. CCA Distribution (in administration) Ltd  UKUT 513 (TCC), §123, Morgan J and Judge Herrington).
- Higher Tribunal/Court cautious about saying anything which would impact on merits
“I would direct that the matter be remitted to the High Court to be re-tried by a different judge. The possibility of a re-trial means that it would be unwise for this court to say more than is absolutely necessary about the merits of the case.” (Space Airconditioning plc v. Guy  EWCA Civ 1664, §66)
“The arguments before us on this appeal did not raise any issue of legal principle on which our ruling would be helpful to the F-tT following the remission of this case. If we were to address Ground 8 in further detail, there would be a danger that we would have to comment on what are essentially factual assessments which ought to be left to the ultimate fact finding tribunal. In these circumstances, the time needed on our part to reach a properly considered decision on Ground 8 and to express our reasons for that decision would be disproportionate to any possible benefit thereby secured.” (HMRC v. CCA Distribution (in administration) Ltd  UKUT 513 (TCC), §127, Morgan J and Judge Herrington).