© 2026 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Procedure.Tax
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M12a. Summonsing a witness
Tribunal power
(1) On the application of a party or on its own initiative, the Tribunal may--
(a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation;
(b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings.
(2) A summons or citation under paragraph (1)(a) must--
(a) give the person required to attend at least 14 days' notice of the hearing, or such shorter period as the Tribunal may direct; and
(b) where the person is not a party, make provision for the person's necessary expenses of attendance to be paid, and state who is to pay them.
(3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are due to be determined.
(4) A person who receives a summons, citation or order may apply to the Tribunal for it to be varied or set aside if they did not have an opportunity to object to it before it was made or issued.
(5) A person making an application under paragraph (4) must do so as soon as reasonably practicable after receiving notice of the summons, citation or order.
(6) A summons, citation or order under this rule must--
(a) state that the person on whom the requirement is imposed may apply to the Tribunal to vary or set aside the summons, citation or order, if they did not have an opportunity to object to it before it was made or issued; and
(b) state the consequences of failure to comply with the summons, citation or order.” (FTT Rules, r.16).
- Must be a real likelihood of the evidence materially assisting the Tribunal
“The test is not whether the party making the application hopes that the evidence sought will assist its case. That would be in the nature of speculation or, as it is put, a “fishing expedition”. The test is whether the Tribunal considers that there is a real likelihood that its determination will be assisted. That may be the case where the Tribunal considers that additional evidence would be reasonably likely, one way or another, to resolve an area of uncertainty.” (Ford v. FCA [2017] UKUT 147 (TCC), §12, Judge Berner citing Jeffery v. FCA).
“In the case of an application for a witness summons or for an order for the production of documents, the guiding principle is that the Tribunal may issue such a summons or order where it considers that there is a real likelihood that the evidence of the person summonsed (or of the documents to be produced) will materially assist the Tribunal in its determination of an issue or issues in the proceedings. The test is not whether the party making the application hopes that the evidence will assist its case. The test is whether the Tribunal considers that there is a real likelihood that its determination will be assisted. That may be the case where the Tribunal considers that the evidence would be reasonably likely, one way or another, to resolve an area of uncertainty.” (Mehta v. HMRC [2015] UKFTT 396 (TC), §16)
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- Test by reference to stated cases
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"In order for a witness summons to be issued, the Tribunal must be satisfied that the evidence sought to be obtained is relevant to the issues in the proceedings. Relevance is to be tested by reference to the stated cases of the parties." (FTT Practice Statement on Witness Summonses)
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- Not satisfied where party has not pleaded cases on the issue to which the evidence would go
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"[153] Under the FTT's Practice Statement, therefore, the need for the summons would be considered by reference to HMRC's pleaded case. In the present case, there was no pleaded case from HMRC on RMC3, the relevant issue, so such an application by HMRC is not presently justified. The Direction implies that witness summonses would if necessary be issued in respect of witnesses named by the parties, without regard to the relevance of their evidence to any pleaded assertion. We address HMRC's absence of pleaded assertion on RMC3 in further detail below." ​(L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- Applicant must take reasonable steps to secure voluntary attendance of its witnesses
“The appellant should have pursued agreement to provide evidence; only if the applicants had been provided with answers and still refused to give evidence should the Tribunal have been approached to issue a summons.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §81).
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"In a normal case, no application for a witness summons should be made by a party unless that party has first requested the witness to attend, and any of the following apply:
(i) the witness has refused to attend;
(ii) the witness has not indicated willingness to attend, despite being requested to do so;
(iii) the witness has agreed to attend, but the applicant has reason to believe that the witness will not do so; or
(iv) the witness has agreed to attend, but only on condition that a summons is issued. This latter situation may arise, for example, if a witness needs to produce evidence, such as to an employer, of the requirement to attend the Tribunal, or if confidentiality obligations would otherwise prevent the witness from agreeing to give evidence.
If, exceptionally, a party has a reason for not making a prior request for the witness to attend voluntarily, the application must set out that reason." (FTT Practice Statement on Witness Summonses)
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Approach to summonsed witnessess
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- Parties may approach summonsed witness
"Any party to the proceedings may properly approach the summoned witness, and produce for that witness any documents that have been disclosed for the purpose of the proceedings, provided that:
(a) in doing so there is no breach, or contemplated breach, of an obligation of confidentiality;
(b) that party discloses to the witness their interest in the proceedings; and
(c) all correspondence and documents passing between that party and the witness is disclosed to the other parties, and any conversations are recorded in writing and the written note is disclosed to the other parties." (FTT Practice Statement on Witness Summonses)​
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- Witness statement by summonsed witness
No power to require witness statement
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"The Tribunal has no jurisdiction to require a summoned witness to prepare and serve a witness statement, although it would be helpful if such a witness were to do so. If a witness statement is prepared, it should be served on all parties to the proceedings, together with copies of all exhibits." (FTT Practice Statement on Witness Summonses)​
Power to require answers to questions before main hearing
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“I dealt with HMRC’s concerns on procedural fairness…by a direction that there would be a hearing on 14 November 2013 for examination in chief of the summonsed witnesses. This would serve instead of a witness statement; the witnesses were to be told that if they served witness statements, they would no longer be required to attend this hearing.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §8).
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"If the summoned witness does not serve a witness statement, the Tribunal may:
(a) exercise its power under Rule 16 to require the summonsed witness, as a separate matter, to answer questions; and/or
(b) direct a preliminary hearing (to which the witness would also be summoned to attend) for the purpose of examination-in-chief of the witness." (FTT Practice Statement on Witness Summonses)​
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- Prior hearing for examination in chief if he/she will not provide witness statement
“I dealt with HMRC’s concerns on procedural fairness…by a direction that there would be a hearing on 14 November 2013 for examination in chief of the summonsed witnesses. This would serve instead of a witness statement; the witnesses were to be told that if they served witness statements, they would no longer be required to attend this hearing.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §8)
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- Cannot cross-examine witness you summonsed, but can contradict with other evidence
"[136] If the other side considers that the evidence of X is crucial, it can issue a witness summons under CPR Part 34 and call X itself. Of course, that is not always a safe course because, in civil litigation, the party calling X cannot cross-examine him or her; his evidence would have to be adduced by way of examination-in-chief in the conventional way. It is for that reason that a party in a similar position to QX in this case does not regularly use Part 34 and will instead submit that, without the evidence of X, the other side's case must fail." (QX v. Secretary of State for Home Dept [2022] EWCA Civ 1541, Coulson, Nugee, Laing LJJ)
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"[47] The position where a party wishes evidence to be adduced from a witness that another party is not calling was explained by Coulson LJ as follows at [136]:
"If the other side considers that the evidence of X is crucial, it can issue a witness summons under CPR Part 34 and call X itself. Of course, that is not always a safe course because, in civil litigation, the party calling X cannot cross-examine him or her; his evidence would have to be adduced by way of examination-in-chief in the conventional way. It is for that reason that a party in a similar position to QX in this case does not regularly use Part 34 and will instead submit that, without the evidence of X, the other side's case must fail."
[48] This, of course, was not the position here: HMRC did not apply for witness summonses." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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"[126] Thirdly, as the authorities cited above indicate, there is no bar, in civil or criminal litigation, to a party submitting that part of what its own witness says should not be accepted in the light of evidence from another witness, even if the party concerned cannot cross-examine its own witness. There will be plenty of evidence, including evidence given by the Applicants and the relevant documentation which will give the Authority ample opportunity to make submissions on that basis." (Banque Havilland SA v. FCA [2024] UKUT 115 (TCC), Judge Herrington)
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- Cannot call a witness simply to impugn their evidence
"[142] In this case it was wrong in principle to exercise the discretion in the face of party autonomy: the parties' choices as to which witnesses they wished to call and whether they would be able to cross-examine them. As stated above, the rule against non-impeachment means that it would be difficult for HMRC to call or summons any Locums as their own witnesses and then impugn or impeach their credibility or reliability."​ (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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"[57]...As I myself pointed out during the course of opening submissions, however, it is not open to a party to call a witness to give evidence which that party will say is not only wrong but deliberately so. In this respect, the following passage in the judgment of Mustill LJ (as he then was) in The ‘Filiatra Legacy’ [1991] 2 Lloyd’s Rep. 337 at page 361 explains the position:
“In one category are the situations where a party says that his own witness is giving mistaken albeit honest evidence and where he seeks to establish this either by calling direct evidence to contradict what his witness has said or by arguing that, when the evidence is regarded as a whole, a mistake is to be inferred. We believe that this is a common occurrence in civil litigation and unobjectionable in principle, provided that care is taken to avoid surprise and hence injustice. We adopt the reasoning of the British Columbia Court of Appeal in Cariboo v Carson Truck Lines 32 D.L.R. (2d) 36 (1961), and in the English cases there cited.
From this must be distinguished the situations where a party wishes to assert that the evidence given in chief by a witness whom he has called is not only wrong, but is wrong on purpose. The most obvious instance is one where the witness has turned coat and has deliberately failed to come up to proof. Here the position seems clear. The party cannot cross-examine his own witness by reference to his proof of evidence or other previous statement unless and until the court has ruled that he is hostile. Nor may he call evidence to establish the general bad character of his witness. (See Ewer v Ambrose (1825) 3 B. & C. 246; The Criminal Procedure Act, 1865, s.3, applied by the Civil Evidence Act, 1968.)”
In the present case, therefore, for the Claimants to have called Mr Zhunus and Mr Tulegenov as witnesses would inevitably have entailed Mr Howe having to put to each of them that their denials of the frauds alleged by the Claimants (in the case of Mr Zhunus, a denial made in the Defence served on his behalf and accompanied by a statement of truth) were false. For this reason, I cannot accept that there is anything in Mr Twigger’s submission." (Kazahstan Kagazy Plc v Zhunus [2017] EWHC 3374 (Comm), Picken J).
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"[135] It is not open to HMRC to call the relevant witnesses. It is a basic principle that a party cannot call a witness simply to impugn his evidence..." (Collingwood v. HMRC [2025] UKFTT 1065 (TC), Judge Manyarara)
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Territorial limitations and witness summonses
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- The Tribunal has no jurisdiction over persons with no presence
“In a situation similar to that in City and County Properties the sending of a witness summons to the prospective witness’s residence will doubtless be effective if it is actually received (whether received when he returns home or is forward to him abroad). If it is not received, he can apply to have it set aside. But where, as in the present case, the prospective witnesses have no presence in the UK, the Tribunal does not have jurisdiction over them.” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §40, Warren J followed in Ford v. FCA [2017] UKUT 147 (TCC), §8, Judge Berner).
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"The Tribunal cannot issue a witness summons to an individual unless that individual is in the UK or otherwise has a presence in the UK, such as a residential address or place of business. The Tribunal may issue a summons to an individual who lives outside the UK but who is temporarily in the UK, but will exercise caution before doing so. The Tribunal will take account of the requirement for the efficient conduct of the proceedings." (FTT Practice Statement on Witness Summonses)
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- But note pragmatic approach to service out of jurisdiction
“It should no longer be necessary to resort to the kind of muscular presumptions against service out [of the jurisdiction] which are implicit in adjectives like ‘exhorbitant’. The decision [to serve outside the jurisdiction] is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum.” (Abela v. Baadarani [2013] UKSC 44, §53, Lord Sumption, cited in Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §26)
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- Non-resident, temporary visitors: Tribunal may decline to exercise jurisdiction
“A witness summons may be served on a person during a temporary visit to the United Kingdom, and it is open to the court to set aside the summons if it considers that it would be unduly burdensome to require the individual to return to the United Kingdom for the trial. Other than in exception circumstances, the court should not require a non-resident, who is not a party to the proceedings but who happens to have been served during a temporary visit to the United Kingdom, to produce documents held outside the jurisdiction relating to business conduct outside the jurisdiction, because the summons would be an infringement of the local sovereignty.” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §41, Warren J citing Phipson on Evidence, §8-32)
“That fact puts limits, explained in Phipson [§8-32], upon the extent to which a summons against a non-resident temporarily within the jurisdiction may be subject to, where the opportunity afforded by such temporary presence might give rise to possible trespass upon exorbitant activity.” (Kuwait Airways Corp v. Iraqi Airways Co [2010] EWCA Civ 741, §10, Rix LJ)
- Summons issued in anticipation of temporary visit
“It may be that there are cases where that course [issuing in anticipation of a visit to the UK] could properly be taken in relation to a witness summons. But in such a case, the tribunal ought, in my view, at the very least direct, pursuant to a combination of its case management powers under Rule 5 and its powers under Rule 13(1)(b) that the witness summons may be brought to the attention of the prospective witness by delivery by hand and that it is not to be treated as delivered or received in any other way, notwithstanding that the prospective witness has received it, or a copy, in some other way.” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §43, Warren J)
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- Letters of request procedure should be used where available in respect of non-residents (even with branches in the UK)
“In MacKinnon v. Donaldson…the plaintiff had obtained ex parte an order from the Master to inspect documents in New York of Citibank and other banks which had branches in London. Hoffmann J concluded that the order should be discharged. The general principle was that the court did not have jurisdiction to issue such orders to non-residents save in exceptional circumstances on the basis that, where sovereign states have agreed alternative procedures for obtaining evidence, those procedures create a rebuttable presumption that they are the appropriate ones to utilise and that it would thereby subvert the sovereignty of the state for the court to circumvent the procedures…I see no reason why the same should not apply to an individual. Further, I see no reason why a similar approach should not apply in relation to the obtaining of evidence from a prospective witness, that is to say by invoking the letters of request to the Jersey court, Jersey being a party to the Hague convention.” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §§34…35, Warren J)
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See below on letter of request procedure.
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Procedure for application for summons
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- ​In writing, sent to Tribunal, all parties and proposed witness
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"An application for a witness summons must be in writing. It must be delivered to the Tribunal and, unless the Tribunal otherwise directs, served on all parties to the proceedings and, in normal circumstances, on the proposed witness." (FTT Practice Statement on Witness Summonses)
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- Dispensing with service on proposed witness
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"In normal circumstances a copy of the application should be served on the proposed witness. That will enable the witness to have the opportunity to object to the summons before it is issued. If, because of urgency or other circumstances, it is not considered appropriate for the application to be served on the proposed witness, the Tribunal may issue the summons without requiring such service. In such a case, under Rule 16(4) and (5), the person who receives the summons may apply to the Tribunal for the summons to be varied or set aside." (FTT Practice Statement on Witness Summonses)
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- Ex parte applications permitted
“…Rule 16(4) [provides] that a person summonsed must have the opportunity to object to the summons after it was made if they did not have the opportunity to object to it before, thereby making it clear that summons can be issued without notice to the recipient (‘ex parte’). And indeed it is the normal, if not invariable, course of the Tribunal so far to issue summons without asking for the proposed witness’ representations in advance.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §6)
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- Content of application
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"The application must include:
(a) the name and UK address of the proposed witness;
(b) where the proposed witness lives outside the UK, but is temporarily in the UK, evidence of the connection of the proposed witness in the UK;
(c) the nature and relevance of the evidence which the proposed witness is expected to be able to give. Relevance must be shown by reference to the
stated cases of the parties;
(d) the reasons why the Tribunal should consider that there is a real likelihood that the evidence will materially assist the Tribunal in its determination of an
issue or issues in the proceedings;
(e) in the case of an application for an order for production of documents (whether alone or in conjunction with the issue of a witness summons), the
specific documents or class of documents sought to be produced, and why it is considered that those documents are in the possession or control of the person concerned;
(f) in the case of an application for a separate order that a person answer questions, the precise questions that are sought to be put;
(g) either evidence of a prior request to the witness to attend voluntarily and of the reason why the applicant considers the witness will not attend voluntarily or, exceptionally, the reason why no prior request has been made;
(h) the reasons why the application has been made at the time it is made;
(i) if it is not intended to serve the application on the proposed witness, the reasons for not doing so;
(j) a statement setting out why the applicant considers the issue of a summons would not cause unfair prejudice to any other party, and why it would be in the interests of justice for the Tribunal to issue the summons; and
(k) a statement setting out what provision is to be made in respect of payment of the necessary expenses of the witness in attending the tribunal hearing, and who is to pay those expenses.
An application may be rejected if it does not comply with these requirements." (FTT Practice Statement on Witness Summonses)
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- Provision for necessary expenses of attendance
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"The following are regarded as falling within the scope of “necessary expenses of attendance” of a witness, which must be provided for:
(a) out-of-pocket expenses, including travelling, accommodation and subsistence expenses (as relevant); and
(b) financial loss incurred by the witness as a direct consequence of appearing as a witness.
In relation to the category of financial loss at (b) above, the amount to be provided for is limited to the amounts payable to witnesses in High Court proceedings in respect of loss of earnings. The current limits are set out in the Guide to Allowances under Part V of the Costs in Criminal Cases (General) Regulations 1986, published by the Ministry of Justice, Criminal Remuneration Branch in June 2007." (FTT Practice Statement on Witness Summonses)
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- Determination without a hearing if no objections received within 14 days
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"If no objection, from another party or from the proposed witness, is received within 14 days after service of the application on them, the Tribunal will normally determine the application without a hearing." (FTT Practice Statement on Witness Summonses)
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- Otherwise FTT to determine if hearing required
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"If an objection is made, the Tribunal will consider whether it is able to determine the application without a hearing. If so it will determine the application on the papers. Otherwise, the Tribunal will list a hearing of the application at which the applicant, the other party to the proceedings and the proposed witness (if served with the application), will be entitled to attend and be represented." (FTT Practice Statement on Witness Summonses)
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- Form of witness summons
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"If the Tribunal determines that a summons or order should be issued, it will prepare and issue the summons or order in accordance with Rule 16. A witness summons will include:
(a) a requirement that the named witness attend a hearing of the Tribunal. The requirement may be in respect of a hearing on a specific date, and at a specific time, or a future hearing the date of which is to be notified to the witness. In either case, unless the Tribunal directs (which it will only do in exceptional cases) a shorter period, at least 14 days’ notice of the hearing will be given;
(b) where known, the date, time and place where the witness is required to attend;
(c) the nature of the evidence the witness will be asked to give;
(d) the documents, or class of documents, required to be produced;
(e) what provision is made for the witness’ necessary expenses of attendance, and who is to pay them;
(f) a statement of the right of a witness who did not have the opportunity to object to the issue of the summons before it was made to apply for it to be varied or set aside; and
(g) a statement of the consequences of failure to comply with the summons." (FTT Practice Statement on Witness Summonses)​
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- Serving a witness summons
Sufficient that it is actually received at least 14 days before the hearing
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“…great care must be taken in interpreting the TPR requirements about sending and delivery of documents by reference to the CPR provisions, in particular Part 6, relating to service…[In relation to an example of a document accidentally sent to a neighbour but passed on:] Although it has not been served in the sense of service under the CPR, it has in fact been received by the intended recipient. He knows that he has been required to attend. Further, he has actually received the witness summons itself; this is not a case where has knowledge of the summons and its contents but has not actually received the summons itself. Assuming that the envelope was received more than 14 days before the hearing, there is no point open to him to take about the validity of the summons as giving insufficient notice. Accordingly, I think it is probably correct to say – although I do not need to decide and do not do so – that he has received the witness summons for the purpose of the Tax Chamber Rules…” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §§18…24, Warren J)
- Application to vary or set aside summons
Normally determined at a hearing
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"On an application by a proposed witness for a summons to be varied or set aside, the Tribunal will normally list a hearing." (FTT Practice Statement on Witness Summonses)​
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- Punishing non-compliance with summons
FTT may refer non-compliance to Upper Tribunal
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"If a summoned witness fails to comply with a summons, or there is a failure to comply with an order for production of documents or to answer questions, under Rule 7(3) of the Tax Chamber Rules the Tribunal may refer the matter to the Upper Tribunal and ask the Upper Tribunal to exercise its powers under section 25 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).
Under section 25 of the 2007 Act, the Upper Tribunal has, in England and Wales, the same powers in this respect as the High Court, and in Scotland of the Court of Session. If it finds the summoned witness, or other relevant person, in contempt of court, it may impose a penalty up to a maximum of two years’ imprisonment and an unlimited fine." (FTT Practice Statement on Witness Summonses)
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No power to require a party to call a witness
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- If party does not wish to call a person as a witness, FTT cannot compel the party to do otherwise
"[133] The starting proposition must be this: in civil litigation, a court has no general power to order one party to call, as a witness on the substantive issues, a person whom that party does not wish to call. Party autonomy is paramount: see Zuckerman on Civil Procedure: Principles of Practice, 4th Edn., at 11.11. As Professor Zuckerman goes on to note at 11.12: "parties to a dispute are autonomous in procedure. They are free to choose whether to litigate, what to litigate and what evidence to call in support of their respective allegations". They are free to choose which evidence to include and which evidence to leave out. That is a decision with which the court cannot interfere, even if the evidence in question is regarded as significant: see Zuckerman at [11.15].
...
[135] Thus, if a party to civil litigation does not wish to call X, the court cannot compel that party to do otherwise. That may have adverse consequences for the party in question, but that is a risk it has chosen to run in adversarial litigation." (QX v. Secretary of State for Home Dept [2022] EWCA Civ 1541, Coulson, Nugee, Laing LJJ)
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"[74] Rule 5(3)(d) cannot permit the FTT to compel a party to call as their witness to give oral evidence a person that they do not wish to call – this is addressed by Rule 16 and the principle in QX. In those circumstances it is unlikely the rule would nevertheless empower the FTT to compel a party to produce written evidence (such as a witness statement) from such a witness.
[75] While Rule 5(3)(d) does empower the FTT to 'require a party or another person to provide documents, information or submissions', it does not refer to 'evidence'[5]. Rule 5(3)(d) and the title and body of Rule 16 only refer to the production of 'documents'. This is in contrast to Rule 15 which refers to 'evidence'. But Rule 15 was rightly not relied on in this case; it does not empower the FTT to direct that evidence should come from a particular witness.
(L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- But if a party does provide a witness statement for a person, can direct witness be tendered for cross-examination
"[137] An entirely different situation arises if a party has provided a witness statement from X but does not wish to tender him or her for cross-examination. In those circumstances, if the court considers that the evidence of X is important and cannot be dealt with satisfactorily other than by way of oral evidence, then (even in judicial review proceedings) the court will order that witness to be tendered for cross-examination: see R(PG) v London Borough of Ealing and Ors [2002] EWHC 250 (Admin) at [20]. That is, of course, a very different thing from ordering X to provide a witness statement in the first place." (QX v. Secretary of State for Home Dept [2022] EWCA Civ 1541, Coulson, Nugee, Laing LJJ)
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Tribunal summonsing person as neutral witness
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- Tribunals have power to summons of its own initiative
"[50] The UT may issue a witness summons on application by a party (and if granted, the witness would give evidence on behalf of that party), but it has the power to issue witness summonses of its own initiative (summoning witnesses on behalf of the Tribunal rather than either party). This is empowered pursuant to Rule 16 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) (the "UT Rules") which is worded identically to Rule 16 of the FTT Rules. The following UT decisions have made reference to both 'party applied' and 'own initiative' summonses which might be issued by the Tribunal:
(1) Banque Havilland SA & others v FCA [2024] UKUT 115 (TCC) ("Banque Havilland 1") [4], [115], where Judge Herrington concluded that the UT had the power to call a witness of its own volition "without the consent of the parties" (noting the significant plural), although he ultimately concluded on the facts that the power should not be exercised: [120]-[128].
(2) Barclays plc & another v FCA [2024] UKUT 214 (TCC) ("Barclays"), [43]-[48], where Judges Rupert Jones and Jonathan Cannan stated that the UT "clearly has a discretion whether to issue a witness summons" and that each case must be considered on its own merits. A potentially important factor will be whether the summons would be "unfair and oppressive".
(3) Staley v FCA [2024] UKUT 394 (TCC) ("Staley"), [36]-[38], where Judge Herrington reiterated the principles, including (referring to Barclays) that each case turns on its own facts and merits.
(4) Banque Havilland & others v FCA [2025] UKUT 197 (TCC) ("Banque Havilland 2"), where Judge Cannan summarised the applicable principles at [18]. He added, at [19], that where there is an objection to the summonsing of a witness, the relevant question is whether it would in all the circumstances be unfair and oppressive to require the witness to give evidence." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- But generally inconsistent with principle of party autonomy for FTT to exercise that power
"[133] We consider that the Directions at [18]-[19] did offend the principle of party autonomy as explained in QX (which applies equally to adversarial proceedings before the FTT) as to which witnesses they chose to call to give evidence (the witnesses either cooperating voluntarily or being compelled through the party applying for a witness summons). Although the FTT was not selecting the identity of the witnesses to be compelled, whose identity was to be provided by the parties, it was not merely deciding the scope of the evidence it required to determine the appeals but encroaching upon the tactical and strategic choices that well represented parties were entitled to make as to which evidence they wished to present at the hearing of the appeal.
[134] This reasoning applies even though we have found it to be a Direction for a witness summons of the FTT's own initiative, in the same way it would have offended the principle of party autonomy if the FTT had made a Direction requiring the Appellant to call witnesses on its behalf whom it did not wish to call.
[135] The Direction required Rowlands to name five Locums who would in consequence become witnesses in the proceedings. The fact that Rowlands was given the option to call them rather than being required to call them does not alter the fact that this amounted to forcing Rowlands to cause evidence to be adduced from individuals from whom it did not wish evidence to be adduced.
[136] As regards the witnesses to be named by HMRC, the Direction departed from the normal position described by Coulson LJ in QX (see [45] to [47] above). It gives rise to problems similar to those found by Judge Herrington in the case of the Financial Conduct Authority's application for the Upper Tribunal to call a "neutral" witness – a witness called by the Tribunal whom both parties can cross-examine – as occurred in Banque Havilland 1, a UT decision not placed before the FTT. This decision makes it clear that any power for a Tribunal to call a witness of its own initiative (i.e. as a witness of the Tribunal) "is a power that should be used very sparingly". The UT made that observation under reference to Court of Appeal authority that the Tribunal "should in general hesitate and hesitate long before" taking evidence against the wishes of the parties (see the passage quoted at [114])." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- Not to be exercised simply to fill perceived gaps in the evidence where parties have made informed choices
"[141] While the FTT, just like the UT, does have the power under Rule 16(1) to issue summonses to call witnesses of its own initiative (as witnesses of the tribunal rather than as a witness of a party) – we agree that it should be exercised very sparingly as Judge Herrington said. In adversarial proceedings such as these, the discretion should not have been exercised to fill in perceived gaps in the evidence where both parties had the ability to make clear and well-informed choices as to the scope of the evidence they wished to call. What is just and fair needs to be considered in light of the issues in dispute and whether the parties had the opportunity to apply for witness summonses if they so chose." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- May be appropriate where Tribunal adopts more inquisitorial approach
"[122] In my view, the existence of the power of the Tribunal to call a witness on its own initiative reflects the fact that bearing in mind the desire to avoid formality in proceedings and the fact that in many cases parties come to a tribunal without legal representation, it will from time to time be necessary for the Tribunal to adopt a more inquisitorial approach. That is clear from the observations of the Court of Appeal in Kesse, referred to above. In this case all the parties are well represented and the issues which the Tribunal will have to determine have been clearly identified. There may also be cases where the Tribunal has questions of its own which it would like to put to a potential witness who was not present. There will also be cases where the Tribunal can indicate to the Authority that it would be preferable if certain individuals were available to give evidence, as it did in Seiler where the Authority was criticised for not addressing the issues satisfactorily before the trial." (Banque Havilland SA v. FCA [2024] UKUT 115 (TCC), Judge Herrington)
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- Reasons why it may be appropriate for FTT to summons witness
"[144] A more inquisitorial approach by the FTT may sometimes be appropriate to dispose fairly of an appeal, particularly one with litigants in person. There may be cases before the FTT where the parties are unrepresented and the scope of factual or legal issues in dispute is unclear and the FTT may need to be more proactive or inquisitorial in order to elicit relevant evidence to enable a fair and just determination of the appeal. There may be cases where potentially relevant witnesses are not identified by either party or the relevance of some evidence is not immediately apparent but where it is or becomes relevant to issues, either disputed, or necessary to be provided, For example, there may be justification for the FTT issuing own initiative witness summonses: where a witness with potentially highly relevant evidence to give has not been identified by the parties but only by the FTT; or where there is evidence that is not obviously supportive of one party or the other but whose evidence is necessary to be elicited; or where the witness is not objected to being called by either party but neither wishes to call them as their own witness; or where a litigant in person has not been able to identify an obviously important issue or witness for the determination of an appeal." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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- Practical difficulties (no witness statement and Tribunal has to formulate questions)
"[139] The reasons given by Judge Herrington for refusing the FCA's application at [121] to [128] of Banque Havilland 1 seem to us to apply in the present case. First, the witnesses would need to be examined in chief by the FTT, requiring the Tribunal to formulate the questions to be asked in chief and risking bringing it "into the arena". Secondly, an important reason for rejecting the application was, as set out at [123], that "this is not a case where the Tribunal is truly acting on its own initiative". In that case, what was at stake was an application by the FCA for the UT to summons a witness who the FCA "believes can assist its case in some respects, but who it also believes will give evidence that might undermine the Authority's case". By summonsing the witness rather than leaving it to the Authority to summons him, the UT decided it would be enabling the FCA to circumvent the "non-impeachment principle" described by the Tribunal at [100] to [104]." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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"[121] First, it seems to me that the Authority’s proposal gives rise to formidable practical difficulties. In my view, the Rules do not give the Tribunal power to order a witness who is summonsed to prepare a witness statement. Mr Weller has made it clear that he would not wish to prepare a statement voluntarily and Mr Strong indicated that Mr Weller did not have the financial resources to instruct lawyers to assist him with that process. In the circumstances, he would need to be examined in chief orally and, since he would be the Tribunal’s witness, the burden would lie on the Tribunal to formulate the questions to be asked and carry out the examination in chief. In my view, that would bring the Tribunal into the arena inappropriately and would impose a considerable burden on the Tribunal." (Banque Havilland SA v. FCA [2024] UKUT 115 (TCC), Judge Herrington)
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- Not appropriate at the request of a party to avoid the non-impeachment rule
"[140] The effect in the present case of making the additional witnesses Direction was to enable HMRC to secure the attendance of witnesses from whom they alone wished evidence to be adduced in circumstance in which they might nevertheless cross-examine them. This was in our view contrary to principle.
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[151] Even though the FTT might in principle require these additional Locums to give evidence of its own initiative, it was inappropriate to invite an Appellant to call a witness that a Respondent wished to give evidence. Rather, the appropriate course, where the Appellant would not volunteer the witness as their own, was for HMRC to invite the Locums it wished to volunteer to be their witness or, if they would not cooperate, apply for a witness summons under rule 16 (in either case the witness would be HMRC's witness)." (L Rowland & Co (Retail) Limited v. HMRC [2026] UKUT 130 (TCC), Judges Jones and Paines KC)
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"[123] However, this is not a case where the Tribunal is truly acting on its own initiative, as envisaged by the Rules. In reality, as Mr Strong submitted, this is an application by the Authority for the Tribunal to summons a witness who the Authority believes can assist its case in some respects, but who it also believes will give evidence that might undermine the Authority’s case. If I were to grant the application, then in effect the Authority would be able to circumvent the “non-impeachment principle”.
[124] In those circumstances, as Mr Strong submitted, where the Authority believes that Mr Weller has relevant evidence to give on the issues that are before the Tribunal, then it should seek to call him as its witness. " (Banque Havilland SA v. FCA [2024] UKUT 115 (TCC), Judge Herrington)
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Requiring the taxpayer to give evidence
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- Doubts as to whether the FTT can/will compel an appellant to give evidence if HMRC have burden of proof
“Further, in considering a submission of no case to answer, the FTT could take account of the documents before it, whether formally produced by witnesses or not, and require witnesses to give evidence about such documents. It follows that we reject this ground of appeal.” (Massey and Massey t/a Hilden Park Partnership v. HMRC [2015] UKUT 405 (TC), §62, Rose J and Judge Sinfield)
“There are no allegations of criminal conduct and the right not to self-incriminate is inapplicable. But the appellants have been assessed and have the right to appeal that assessment. Being required, even summonsed, to give evidence in favour of HMRC’s case may well adversely affect their ability to pursue their appeal. So if the Upper Tribunal actually meant that, where the burden of proof was on HMRC, and the appellant made a submission of no case to answer, it would be appropriate to require the appellant partners to give evidence, then I do, respectfully, find what the Upper Tribunal said very difficult to understand…I don’t think the appellant partners ought to be compelled to give evidence to support HMRC’s case.” (Hilden Park LLP v. HMRC [2017] UKFTT 217 (TC), §§45…46, Judge Mosedale)
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- Taxpayer has privilege against self-incrimination
“Section 29 does not impose criminal liability. On the appeal under section 29 TMA Mr Hargreaves will have the privilege against self-incrimination but a wider right to silence does not arise as he is not subject to any criminal charge.” (Hargreaves v. HMRC [2016] EWCA Civ 174, §57, Arden LJ)
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Letters of request (persons not present in UK)
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What Letters of Request are
“Letters of Request require a foreign court to take a deposition from a person within its jurisdiction for use in proceedings in front of the requesting court. It is a procedure only available where there are international treaties between the two countries concerned. The UK and Jersey are both signatories to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters 1970 and the parties were agreed that this would allow an English Court to issue Letters of Request to a Jersey Court.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §35).
Only civil and commercial matters
Query whether tax falls within the scope.
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- Whether FTT can make use of them
“Neither under the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 or any other legislation does this Tribunal have power to issue Letters of Request to a foreign court…I am satisfied that there is no proper means by which a hearing in this Tribunal could benefit from the Upper Tribunal’s powers (assuming it has them) to issue Letters of Request.” (Clavis Liberty Fund 1 LP [2014] UKFTT 1077 (TC), §36..46).
But UT did not deal with this point
“I see no reason why a similar approach should not apply in relation to the obtaining of evidence from a prospective witness, that is to say by invoking the letters of request to the Jersey court, Jersey being a party to the Hague convention. It may be possible to apply directly to the Jersey court for assistance, but I do not know if that is so.” (Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) §35, Warren J)
And: see UT in Clavis Liberty Fund LP1 v. HMRC [2015] UKUT 72 (TCC) appeared to indicate that Letters of Request should generally be used for non-residents (§35)
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- UT can make use of them
“But s 25 of the Tribunals, Courts and Enforcement Act 2007 does provide that, as respects the attendance and examination of witnesses in particular, and more generally other 30 matters incidental to the Upper Tribunal’s functions, the Tribunal has “the same powers, rights and privileges as the High Court”. It seems to me, although in the event it is not something that I have to decide, that this would suffice to give this Tribunal the same power to make a request under the Taking of Evidence Regulation as exists in the High Court.” (Ford v. FCA [2017] UKUT 147 (TCC), §10, Judge Berner).
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