TIERS AND TRIBULATIONS THE NEW TAX TRIBUNALS PHILIPPA WHIPPLE 1 CROWN OFFICE ROW MAY 2009

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1 TIERS AND TRIBULATIONS THE NEW TAX TRIBUNALS BY PHILIPPA WHIPPLE OF 1 CROWN OFFICE ROW MAY 2009

2 2 I. INTRODUCTION OVERVIEW The Tribunals, Courts and Enforcement Act 2007 (the Act or TCE ) received Royal Assent on 19 th July The object of the new legislation was to reform the tribunals system. There were very many different tribunals operating in England and Wales, under different codes of procedure, with different powers, and different sponsoring ministers of state. The objective of the legislation was to reorganise these disparate tribunals into a single tribunal structure. So far as tax matters are concerned, the transition to the new system took place on 1 st April There were four existing tribunals which were swept up into this new structure: (1) The VAT and Duties Tribunal; (2) the General Commissioners of Income Tax; (3) the Special Commissioners of Income Tax; and (4) Section 706/704 ICTA Tribunals. The essence of the new structure is a two tier system: a First Tier Tribunal, and an Upper Tribunal. This is not a simple reorganisation. Accompanying the administrative change is a significant expansion in the jurisdiction of tribunals. The new structure will provide not only a forum for first instance decisions, but will also incorporate an upper tribunal for appeals and other significant matters, most notably judicial reviews. Rights of further appeal lie only to the Court of Appeal, and then only in narrowly defined cases. What we are witnessing is the removal of certain categories of litigation from the review of the courts. Whereas up until now the Tribunal has provided the first level of judicial

3 3 oversight, charged with fact finding and the first chance to analyse the law, with a right of appeal without permission - to the High Court, the new system will provide for an internal appeal to a higher tribunal requiring leave, with limited rights of appeal thereafter to the Court of Appeal. Public law issues traditionally within the exclusive domain of the Administrative Court will now be dealt with by the Tribunal. EVENTS LEADING UP TO THE CHANGES The roots of change lie in the Leggatt Report 1 which was published in August A White Paper 2 was published in July 2004 which set out the proposals which are now to a large extent reflected in the Bill. Since the moment of its publication in 2006, the Tribunals, Courts and Enforcement Bill was actively debated in both Houses of Parliament. The Act is a framework document. It leaves the detail of the system to secondary legislation and practice directions to be devised and implemented in due course. A consultation exercise was embarked upon in May , and closed in November Documents commenting on that exercise have been published by HMRC and the Ministry of Justice. Procedural rules have now been finalised. They were drafted by the Tribunals Procedure Committee ( TPC ), which is the body dealing with rules of procedure across the whole tribunal structure. Accordingly, the shape of the rules is essentially generic, to cohere with the rules in all the other Tribunal chambers. Those rules are (1) The Tribunal Procedure (Upper Tribunal) Rules 2008 [SI 2698/2008]; and (2) the Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2009 [SI 273/2009]. 1 Tribunals for Users: One System, One Service, Transforming Public Services: Complaints, Redress and Tribunals, with the publication of Transforming Tribunals: Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007

4 4 An extensive recruitment drive for legally qualified judges and lay members took place in the latter part of 2008 and is now completed. Some of the judges and members in the new tribunals will be new to the task entirely; others will migrate over from the existing system. WHERE ARE WE NOW? The new tribunals were established on 1 st April 2009 following the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 ( the 2009 Order ). II. THE NEW SYSTEM JUDGES AND MEMBERS The personnel in these new tribunals are either judges or members. There will be no more chairmen, commissioners or wing members. The titular head of the new structure is the Senior President of Tribunals, currently Lord Justice Carnwath. Some insight into the objects underlying the new structure is obtained from the statutory basis upon which the Senior President exercises his functions of office. He must have regard to: (a) the need for tribunals to be accessible; (b) the need for proceedings before tribunals - i. to be fair, and ii. to be handled quickly and efficiently, and (c) the need for members of tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters, and

5 5 (d) the need to develop innovative methods of resolving disputes that are of a type that may be brought before tribunals 4 STRUCTURE The new structure comprises a First Tier Tribunal ( FTT ), and an Upper Tribunal ( UT ). The First Tier Tribunal is to be organised into a series of Chambers each of which will have a Chamber President to be appointed by the Lord Chancellor. The aim of the chambers is to group similar work together and allow those with expertise to deal with it. The work currently handled by the VAT and Duties Tribunal, and the General and Special Commissioners of Income Tax, will transfer to the Tax Chamber of the FTT. 5 The UT will also be organised into chambers but they will not align precisely with the chambers created in the FTT. Appeals from the FTT and other tax matters which will come to the UT will be within the Finance and Tax Chamber. 6 The President of the Finance and Tax Chamber of the Upper Tribunal is Sir Nicholas Warren. RULES OF PROCEDURE Both Tribunals are established by the Act but have their day to day operations governed by rules of procedure, augmented by statements of practice to be published by the Presidents of the relevant Chambers. Two features of the rules of procedure are worthy of specific mention. The first is the importation of the overriding objective into the 4 Section 2(3) of the Act 5 The other FTT Chambers will be: (1) Social Entitlement, (2) General Regulatory, (3) War Pensions and Armed Forces Compensation, (4) Health, Education and Social Reforms, (5) Land, Property and Housing. 6 The other UT Chambers will be: (1) Administrative Appeals and (2) Lands.

6 6 Rules. This is an echo of the overriding objective in the Civil Procedure Rules 7. Any procedural decision is to be taken in light of the overriding objective, which is to enable the tribunal to deal with cases fairly and justly. There is a non-exhaustive list of factors to be taken into account under that umbrella 8. The second is the reference in each set of draft rules to arbitration and alternative dispute resolution 9 - which presumably coincides with the reference in the Act to developing innovative methods of resolving disputes. III. THE FIRST TIER TRIBUNAL General The FTT will, at least in the vast majority of cases, hear appeals at first instance. It will act as the fact finding tribunal. It will comprise a judge and possibly members. The FTT is physically located at around 40 hearing centres around the UK. (The system is the same in all parts of the UK, including Scotland and Northern Ireland). Plainly some thought is required to ensure that appropriate expertise will be available at each hearing centre, or if it is not, that there is some provision for transferring cases between centres to ensure that the case is heard by an appropriate panel. This is particularly an issue for tax cases which require particular specialism: although some tax cases may be straightforward, many are not. Accordingly, the suggestion is that there will be three or four super hearing centres, possibly London, Manchester and Edinburgh, where tax work of any complexity is undertaken. 7 Part 1 of the CPR 8 Rule 2 of the FTT Rules and UT Rules 9 Rule 3 of the FTT Rules and UT Rules

7 7 This throws up one of the big questions about the new structure. Part of the aim of the changes is to ensure flexibility in who hears a particular case. The corollary of that ambition is that some type of screening is necessary to determine the appropriate type of judge and consequently place of hearing for that case. The Categories of appeal The proposal is that all cases coming into the FTT should be channelled via a Central Processing Centre ( CPC ) is Birmingham with tax appeals being a particular business unit. Within the tax chamber, each appeal will be categorised into one of four procedural categories 10 (or tracks the idea came from the civil procedure rules which provide for streaming of civil cases onto tracks). There are three starting categories: a. the Paper category, which is the default. These cases will usually be disposed of without a hearing. It is unlikely that any VAT or indirect tax cases will fall within this category, which is reserved for very straightforward direct tax appeals. Default cases may be disposed of by a member who does not have legal qualifications. b. The Basic Category, which will usually be disposed of after a hearing but will involve minimal exchanges of documents before the hearing. Into this category will fall mitigation and reasonable excuse appeals against penalties, and similar types of appeal. Basic cases may be disposed of by a member without legal qualifications, or by a Judge, depending on their subject matter. c. The Standard Category, which will usually be subject to more detailed case management and be disposed of after a hearing chaired by a Judge. 10 Rule 23 of the FTT Rules

8 8 There is then a fourth category to which the Tribunal can transfer an appeal by way of further direction, namely the Complex Category 11, which exists for those cases which i. will require lengthy or complex evidence or proceedings; ii. involve an important principle of law or a complex issue; or iii. involve a large financial sum. There are going to be some cases which from the outset are clearly complex cases. It is not clear why the rules require these to be categorised by further direction possibly because they will start in the standard category but then be marked out as Complex cases. Categorisation as a complex case is particularly important for two reasons: (1) first, different costs provisions apply in complex cases as opposed to cases in the other three categories 12 ; (2) secondly, it is possible for a complex case to be transferred to the Upper Tribunal with the consent of the parties, and of the President of the Tax Chamber of the First Tier Tribunal and the President of the Finance and Tax Chamber of the Upper Tribunal 13, which as things currently stand is not available for any other category of case. Categorisation Issues: There is no express provision to deal with any argument as to mis-categorisation of a particular case. That may be a significant point because there are different rules which apply to the categories as outlined above. Presumably, a disgruntled party to an appeal could apply to have the case transferred to a different category, and this would be a matter to be dealt with at a directions hearing. Categorisation is an important step in the process. It does need judicial input, just as civil cases are categorised by the judge at a directions hearing, and criminal cases in the 11 Rule 23(4) of the FTT Rules 12 see below and rule 10 of the FTT Rules 13 see rule 28 of the FTT Rules

9 9 Crown Court are categorised by the Resident Judge. Tax cases deserve just the same level of judicial oversight, to ensure that they are correctly streamed from the outset: the potential cost of not ensuring early judicial oversight is wasted Court time and unfairness to the parties. Procedure Pleadings There are standard directions for Statements of Case: none is required at all in a Basic Case (unless specifically ordered by the Tribunal) 14. In a Paper Case, it is due 42 days after the Notice of Appeal is received 15. In a Standard or Complex Case it is due 60 days after the Notice of Appeal is received 16. Those time limits can be extended. In a Paper Case, the Appellant has a right to lodge a reply 17. Disclosure There is no standard disclosure in a paper or basic case. In a Standard or Complex Case, standard disclosure takes place 42 days after the statement of case is served 18. The disclosure required is a little different from the existing rule which requires the list of documents in that person s possession, custody or 14 Rule 24 of the FTT Rules 15 Rule 25(1)(a) of the FTT Rules 16 Rule 25(1)(b) of the FTT Rules 17 Rule 26 of the FTT Rules 18 Rule 27 of the FTT Rules

10 10 power which he proposes to produce at the hearing. The obligation now extends to documents which he intends to rely on or produce at the hearing. (The reference to documents in the possession, custody or power of a person is a throwback to the old civil litigation rule, which has now been superseded by an obligation to disclose documents on which a party intends to rely and any others which are relevant to the case 19.) Case Management As before, the Tribunal has wide powers to regulate its own proceedings 20. The Tribunal now has express powers to give directions on evidence or submissions 21. It is for the Tribunal to direct whether expert evidence is to be called and if so whether there is to be a joint expert instructed: the instruction of joint experts has been controversial in the civil courts, but is now familiar in those courts particularly in relation to peripheral issues or issues of quantum. One new feature of those powers is the express power to strike out a case 22. Unless Orders: An appeal will be struck out automatically if an appellant fails to comply with an unless order; and can be struck out if the appellant was on notice that failure could lead to that outcome: so it has become very important to ensure precise wording of any unless order. Summary Judgment: An appeal may also be struck out if an appellant has failed to cooperate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly or justly, or because there is no reasonable prospect of the appellant s case or part of it succeeding. The powers can be used against HMRC also, who may be barred from taking further part in the proceedings. This is an echo of the rule in the civil courts CPR Rule 5 of the FTT Rules 21 Rule 15 of the FTT Rules 22 Rule 8 of the FTT Rules 23 CPR 24.2

11 11 Lead Cases Happily, there is now an express rule which entitles the Tribunal to identify cases which raise common issues and to specify one or more as the lead case behind which others must stand 24. This practice has existed for some time in the Tribunal but it is now expressed as part of the rules. Particular Aspects of the new system There are three aspects of the new First Tier which merit particular attention. Those aspects are: (1) the provision for review of a decision; (2) the requirement for permission to appeal; and (3) the costs provisions. (1) Review (Note that this is not the same thing as the internal review now undertaken by HMRC more of which later.) The ordinary slip rule remains in the rules to deal with simple mistakes of a clerical nature 25. An additional rule allows the Tribunal to set aside its decision where there has been some form of procedural irregularity 26. But there is a new rule which allows the Tribunal to review its own decision in circumstances where a party has sought permission to appeal and the tribunal is satisfied there is an error of law in the decision 27. This is a rather remarkable provision. It allows a tribunal to conclude that it has itself made an error of law, and so to have a second attempt at getting the decision right. What about the concept of functus officio? The Tribunal is obliged to consider it whenever 24 Rule 18 of the FTT Rules 25 Rule 37 of the FTT Rules 26 Rule 38 of the FTT Rules 27 Rule 41 of the FTT Rules

12 12 permission to appeal is sought 28. The provision does not contain any guidance as to when it will be invoked seemingly applicable in any case where the tribunal (ie the FTT which decided the appeal in the first place) considers that there has been an error of law. This is a curious provision, which may throw up some surprises over time. It finds a place in the UT Rules also but in terms which are more clearly defined (see below). (2) Permission to appeal It is now necessary for a party to seek permission to appeal from the First-Tier Tribunal, within 56 days of the decision being handed down 29. If permission is not given at the first tier level, it must be sought from the Upper Tribunal. It is necessary to identify the error or errors (and note: the rule does not require identification of an error of law, just an error) in the decision and state the result the appealing party seeks 30. The Tribunal will then decide whether the error in question can be corrected under the review procedure, and if it cannot, whether permission to appeal should be given. There is a mismatch: the review procedure applies where the Tribunal is satisfied there is an error of law ; permission to appeal can be granted whenever there is an error which potentially goes further than an error of law. It is potentially confusing to use different language here. (3) Costs The ordinary rule is that there are no costs orders except wasted costs or costs against a party which has acted unreasonably under Rule 40 of the FTT Rules 29 Rule 39(2) of the FTT Rules 30 Rule 39(5) of the FTT Rules. This in turn is to be contrasted with the terms of section 11 of the Act which refer to a right of appeal to the UT on any point of law arising from a decision made by the Firsttier Tribunal. 31 Rule 10 of the FTT Rules

13 13 This marks a dramatic departure from the position as it has been for many years in the VAT and Duties Tribunal, where the Commissioners have not sought costs in the ordinary case where they have been successful, and have acquiesced in paying the other side s costs if they have not been successful. That policy was encapsulated in a statement by Peter Brooke MP which is replicated in the VAT Appeals explanatory leaflet 32. HMRC has now formally withdrawn from that policy statement 33. The costs rules in the First Tier Tribunal and the Upper Tribunal have therefore been devised on the basis of a different landscape altogether. The issue of costs has been hotly debated. It was recognised early on that the costs rule would have to be the same across the whole of the tax chamber, regardless of the type of tax involved. And it had long been the tradition in direct tax cases that there should be no order as to costs except in exceptional circumstances where a party had behaved unreasonably. The direct tax tradition was completely at odds with the indirect tax tradition, but only one could prevail. Secondly, the indirect tax tradition was fuelled in part by the Commissioners policy statement, and with the demise of that policy, it became clear that taxpayers would have to accept the burden of having to pay HMRC s costs if they lost, if they wanted the benefit of recovering their own costs in the event of success: in other words, the ordinary rules of litigation would henceforth apply. That led to the third consideration, which was how best to apply the principle of open access to the Tribunal: although having to pay your own costs is doubtless a concern to many taxpayers, it is probably less of a concern than the risk of having to pay not only your own but also the other side s if you lose. And so we have the new rule: no recovery of costs 32 Appendix D, setting out the statement of the Minister of State, Treasury, Peter Brooke MP, recorded at Hansard Vol 102, 24 th July 1986 Col Note from HMRC dated 6 th December 2007, on the finance and tax tribunals website, footnote 4 above

14 14 except in complex cases, where an elaborate rule has been devised in an attempt to quell the protests from the professional advisors and their clients. Once a case is transferred to the complex category, it will be open to the Tribunal to make a costs order, according to the ordinary rules of litigation, unless the taxpayer gives notice within 28 days of transfer into that category that he wishes the proceedings to be excluded from potential liability for costs 34. Thus, in a complex case it is possible to recover costs as long as the taxpayer has not opted out of the costs regime. HMRC has no equivalent right of option. It will be necessary to advise clients very carefully on the pros and cons of categorisation as a complex case, and the option relating to costs, which must be made at the outset of the litigation. In most big cases, of the sort which will be in the complex category, the prospect of having to pay the Commissioners costs in the event the appeal is unsuccessful is likely to be a modest concern when compared to the sort of sums likely to be at stake in the appeal and that party s costs of the litigation. One footnote on costs is necessary: although one door has closed, in the form of the formal withdrawal by HMRC from its costs policy to date, another has opened a crack in the form of HMRC s reminder of the Rees practice, whereby revenue departments will exercise discretion about seeking costs in appeals where there is hardship for the taxpayer and a wider interest in the outcome. HMRC has now publicly reaffirmed its commitment to that policy 35. But it has been little used to date and it is hard to believe that it will be widely used in the future. 34 Rule 10(c) of the FTT Rules 35 HMRC s note, see footnote 35 above.

15 15 IV. UPPER TRIBUNAL SUMMARY The Upper Tribunal has three different roles. It (a) hears appeals on point of law from the FTT; (b) hears some complex cases which are better suited to being heard in the UT at first instance; and (c) hears some judicial review applications. Each of these will be considered in more detail below. This is the point of the most dramatic innovation in the new structure. The UT will be a court of record, of equivalent standing to the High Court. It is, however, the part of the overall new structure in relation to which there is at the moment the least detail. It seems that the UT will not, or not necessarily, sit in the same places as the FTT. It may even sit in the High Court, if the particular case is being heard by a High Court judge. PERSONNEL A person is a judge of the Upper Tribunal if he is the Senior President of the Tribunals, a Chamber President, or is appointed as a judge of the Upper Tribunal under specific powers. The 2009 Order clarifies that existing VAT and Duties Tribunal chairmen will become not only FTT judges but also deputy judges of the UT. There is also a category of ex officio judges of the Upper Tribunal who are within listed categories, which include Circuit Judges and High Court Judges. The issue of personnel is critical if credibility in the system is to be maintained. But at the moment it is not clear who will actually hear cases in the UT. The bulk of UT cases will be appeals from the FTT which are currently heard in the Chancery Division.

16 16 One of the mainstays of the UT will be the regular secondment of High Court judges. The secondment of judges occurs already in some tribunal jurisdictions, such as the Employment Appeal Tribunal and the Asylum and Immigration Tribunal (incidentally, neither of those are to be brought within the new structure). There is considerable expertise in tax matters in the Chancery Division and it would make obvious good sense for some of those judges to sit in the Upper Tribunal. Judges hearing JR applications The issue is perhaps more acute in the context of the UT s power to hear judicial review applications. These kinds of cases usually raise quite different issues from technical appeals on the law. That is because the legal principles of administrative law are general principles, to be applied regardless of the specific context of the challenge, be it tax, immigration, planning or any other activity of a public body. In order for tax JR to remain part of the coherent body of administrative law, the Upper Tribunal must have administrative law specialists available to hear these applications. An amendment to the draft Bill was won in the House of Lords which guaranteed the level of judge hearing a judicial review case, after considerable debate about that issue. The result was a section in these terms: the judge presiding at the hearing of the application is either (a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the court of session, or (b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of the Tribunals Section 18(8) of the Act

17 17 The government has been questioned in Parliament as to what circumstances would allow someone other than a High Court judge to hear a judicial review application, as permitted under (b). The answer given was that: it is imperative that there is flexibility in relation to the circumstances where cases should be transferred to the Upper Tribunal, and flexibility as to who they will be heard by. That flexibility would be disturbed if the Bill was to include a provision limiting such cases to High Court judges, regardless of the relevant circumstances of the case. There are some persuasive examples of cases where judges of the Upper Tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases have, for example, been mentioned in the course of our discussions. 37 It seems therefore that a High Court judge will not be guaranteed for a judicial review application in a tax case. 37 Statement of the Lord Chief Justice read to the House of Commons as part of an answer by Vera Baird QC MP, Hansard 15 th March 2007

18 18 JURISDICTION (1) Upper Tribunal s Appeal Jurisdiction Any party to litigation has a right of appeal on any point of law arising from the decision of the FTT. That right can only be exercised with permission, which can be given by the FTT or UT on an application by the party. Nowhere in the Act or the Rules is there any guidance as to the threshold to be applied in granting permission: is it likelihood of success, material error of law, arguability? It is clear that when it comes to the substantive appeal, the UT is focussing on whether the decision concerned (of the FTT) involved the making of an error on point of law 38, which is exactly the same as the approach under the present system. There are some important points to be drawn out here: First, gone is the automatic right of appeal. As matters used to stand, any party could appeal as of right to the High Court against a decision of the VAT and Duties Tribunal or the Special Commissioners if that party was dissatisfied in point of law with the decision (e.g, see section 11(1) of the Tribunals and Inquiries Act 1992). But since 1 st April 2009 that is no longer the case. Secondly, first appeals will no longer go to the Chancery Division of the High Court. They will go to the Upper Tribunal. However, as indicated above, it may be that the judge hearing the appeal is, in fact, a High Court judge, sitting in the Royal Courts of Justice. 38 section 12(1) of the Act

19 19 Thirdly, if the Upper Tribunal refuses permission to appeal, there is no right of appeal against that decision and the only remaining avenue for challenge will be an application for judicial review of the UT s refusal of permission to appeal. That application for JR would surely have to be heard in the Administrative Court, to ensure that the UT was not hearing a JR of itself. This could, conceivably, create a whole new area of tax JR which would have to proceed in the Administrative Court precisely not what is intended by these reforms. (2) Upper Tribunal s first instance jurisdiction As stated above, the FTT Rules provide for the possibility that a complex case may be transferred direct to the UT. It is anticipated that cases will only be leapfrogged in this way if they do not contain substantial factual disputes which need to be resolved, but rather turn on a discreet issue of law. The consent of both parties and the Chamber Presidents of the FTT and UT are required as a pre-requisite. This will be a very limited number of cases. (3) Upper Tribunal s Judicial Review Jurisdiction The Act contains provisions for judicial reviews to be heard by the Upper Tribunal 39. There are two routes to a JR in the Upper Tribunal. Mandatory transfer to UT: If four stated conditions are fulfilled, the JR must be heard in the UT. Those conditions are: (1) that a remedy available on judicial review is sought; (2) that the application does not call into question anything done by the Crown Court; (3) that the application falls within a class specified by the Lord Chief Justice with the agreement of the Lord Chancellor pursuant to the Constitutional Reform Act 2005; and (4) that the judge presiding at the hearing of the application is a High Court or Court of 39 sections of the Act

20 20 Appeal judge (or Judge of the Court of Session) or such other person as may be agreed between the Lord Chief Justice and the Senior President of the Tribunals. If any application is made in the Tribunal but the conditions are not fulfilled, the application is to be transferred to the High Court 40. Likewise, if an application which does come within the conditions is made in the High Court it must be transferred to the UT 41. The critical condition is (3). No list of classes of case has yet been specified. Until that order is given, it follows that the four conditions are not fulfilled and the appropriate place to issue an application for JR is the Administrative Court. Discretionary transfer to UT: However, the Administrative Court has a discretion to transfer any JR application made to it to the Upper Tribunal, even if that JR does not come within a specified class, where the High Court concludes that it would be Just and convenient to do so 42. There is no guidance on when that discretion may be used. Policy: The government has said of this area of the UT s jurisdiction: the point of enabling the judiciary to transfer cases from the normal judicial review jurisdiction into the upper tribunal is to harness the expertise that is likely to be available in that forum on the special kinds of business that the tribunal system takes care of. We expect the power to be used comparatively rarely dozens of times at most and certainly not in large numbers and that its use is likely to be confined to technical situations that would be better dealt with by technically expert people section 18(3) of the Act 41 section 19 of the Act, inserting section 31A into the Supreme Court Act s 19 TCE 43 Statement by Vera Baird QC MP, Hansard 15 th March 2007

21 21 It seems fairly clear that tax cases will be one particular type of case specified under condition (3), although it remains to be seen if and how the distinction will be drawn between those JR applications in a tax context which raise technical, fact based issues which do not require specialist public law input (eg has there been a misdirection? Does a particular extra-statutory concession apply in the given circumstances), and those which raise mainstream public law issues of fairness or reasonableness by the Commissioners albeit in the context of taxation (eg has principle of equal treatment been respected? Have the Commissioners acted so unfairly as to be abusing their powers?). The position is perhaps more comfortable to the extent that transfer is discretionary (as at present). Condition (4) is not within the knowledge of the individual and so, presumably, will have to be taken on trust by the litigant who fulfils the other three conditions, and issues the application in the UT. The intention is that the Administrative Court law and practice is imported to the Tribunal jurisdiction. Therefore, permission will be required. Any person who has a sufficient interest may make an application in the Tribunal for JR. There is already a body of case law which deals with that issue; but suffice to say that the potential cohort of litigants for JR purposes is wider than those who may appeal against a decision of HMRC (see, for example, the Judicial Reviews brought by the Federation of Technological Industries on behalf of its members [2004] STC 1008, Hoverspeed Ltd to protect its commercial interests in relation to the Commissioners impounding of vehicles belonging to passengers [2003] STC 1273, and IDT Card Services Ireland Ltd to prevent proposed assessments on its UK suppliers [2005] STC 314). There is provision to allow the Tribunal procedure rules to limit the time within which applications may be made. Applications in the Administrative Court must be filed

22 22 promptly; and in any event not later than 3 months after the grounds to make the claim first arose (CPR 54.5(1)). This is replicated for the UT 44. The granting of relief remains discretionary. The principles to be applied are those applicable in the High Court. UPPER TRIBUNAL RULES OF PROCEDURE General The UT has its own rules of procedure 45. Many aspects of the rules for the UT replicate those for the FTT: we see similar case management powers, a power to strike out either party s case summarily, a power to limit evidence or submissions and to authorise the use of expert evidence, a slip rule, and power to set aside decisions where there has been a procedural irregularity. The key differences are, first, the judicial review provisions outlined above; secondly, the costs rules, and thirdly the review provisions. Costs The costs provisions in the UT are different from the FTT. The UT can make an order for costs on any appeal from the Tax Chamber of the FTT, and can award costs to the extent and in the circumstances that the other tribunal had the power to make an order in respect of costs. This appears to mean that the UT can award costs on the appeal without restriction, but can only vary the costs order made below within the bounds of the FTT s costs powers. 44 Rule 27(2) of the UT Rules 45 [SI 2008/2698]

23 23 The UT also has power to award costs in cases which start in the UT, namely judicial review proceedings, in any case transferred to it from the FTT. It retains the usual power to award costs in the event of unreasonable conduct or wasted costs 46. Review The Upper Tribunal can review its own decisions in any case where permission to appeal is sought, but only if: (a) when making the decision the UT overlooked a legislative provision or binding authority which could have had a material effect on the decision or (b) since the UT made the decision, a court has made a decision which is binding on the Upper Tribunal and which could have had a material effect on the decision 47. This provision sets some boundary on the UT s powers of review. It is likely that the FTT will impose similar boundaries on its own review jurisdiction, even though not circumscribed by statute. Note that the test here is could have had a material effect and not would have had a material effect. Note also that this review jurisdiction does not allow challenges based on failure to deal with specific facts or evidence only matters of law. V. APPEALS FROM UPPER TRIBUNAL Appeals from the Upper Tribunal lie to the Court of Appeal. Permission must be obtained which will not be given unless: (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the relevant appellate court to hear the appeal 48. This is the familiar approach to appeals to the Court of Appeal, which are second appeals 49. It represents a heightened threshold 46 Rule 7 of the Tribunal Procedure (Amendment) Rules Rule 45 of the UT Rules 48 The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 [SI 2008/2834] 49 section 13(6) of the Act, which mirrors CPR in relation to second appeals to the Court of Appeal

24 24 for appeals where the UT has been the court of first instance, namely those complex cases which go straight to the UT, and judicial review applications heard by the UT. Permission can be given by the Upper Tribunal itself or by the Court of Appeal. VI. ISSUES ARISING The main issues are: Judicial Review First, will any judicial reviews actually come before the Upper Tribunal, on a discretionary basis or on the mandatory basis (which awaits an order from the Lord Chief Justice. Secondly, who will hear judicial review applications? If the intention is that the Upper Tribunal s JR jurisdiction is to operate in tandem with and as a mirror image of the Administrative Court, the judges really must be drawn from the same pool. Only in that way will quality and consistency be maintained. But this seems far from sure at present. Still no unified jurisdiction The reform of the tribunal system brought an opportunity to resolve the fragmented jurisdiction between the old VAT and Duties Tribunal (for VAT appeals) and the Administrative Court (for judicial reviews). That fragmentation meant that proceedings had to be issued in both jurisdictions to ensure that the points could be argued, which involved additional cost and delay, and a host of procedural problems which were sometimes fatal to the case (for example, time limits not observed; points taken in the wrong jurisdiction, etc).

25 25 However, the opportunity has not been taken. VAT appeals are to commence, in the great majority of cases, in the FTT. Tax judicial reviews are to go to the UT. It may be that some appeals which raise public law points will be characterised as complex cases which are suitable to be heard in the UT at first instance but that is subject to consent of all parties and both tribunals. If that narrow route does not apply in a given appeal, the taxpayer will be left with no choice but to litigate his appeal in the FTT and to litigate his JR in the UT, by separate processes. Costs Costs remain a source of considerable concern. Taxpayers who would have been reassured until now that at least in VAT matters, if they took an appeal and won they would not be left with a sizeable bill for legal fees, will no longer be in that position. The indications are that few cases will be classified as complex. That means that taxpayers will have to face the prospect of not getting their costs back at FTT level even though they have won. Transitional Provisions The transitional provisions, such as they are, appear at Schedule 3 to the 2009 Order. A notice published by HMRC indicates that General Commissioners cases which cannot be heard by 31 st March 2009 will be transferred to the new system. Generally, it appears that all cases already in the pipeline will be transferred to the new system on 1 st April 2009, preserving existing time limits which are part-expired as at that date.

26 26 Section 83 VATA It is not clear how the new JR jurisdiction of the UT will fit alongside section 83 VATA. It has been said again and again by the Courts that the VAT and Duties Tribunal is a creature of statute and is not permitted to stray into examination of public law issues involving the Commissioners conduct. That will surely remain the case at least for the FTT, which does not have any jurisdiction to hear judicial review applications, unless section 83 is amended which is not currently proposed. There will be a curious mismatch of jurisdiction, with the FTT Tribunal having the old fashioned limited appeal jurisdiction; and the UT having the broadened jurisdiction including an appeal and judicial review application. Even within the new structure, there is room for the sort of sterile debates about jurisdiction which have dogged tax litigation for many years. The right of review HMRC must now offer any person a review of a decision that has been notified to that person against which they could appeal, whether a direct tax or indirect tax decision. If a review is requested, the time for appealing is extended and no appeal can be lodged until the review is complete. The review is not mandatory a person is entitled to appeal without availing himself of the right of review. It must be requested within 30 days of the decision in question, and the promise is that it will be completed by a different HMRC officer within 45 days of being requested. The time for appeal will run from receipt of the review decision. The general message underlying the review procedure is that an appeal should only be the last resort, once all other avenues have been exhausted. One point to watch is the

27 27 intersection of this more extended timetable on the appeal side with the strict time limits for judicial review, where delay in claiming can be fatal. VII. CONCLUSION This is a radical shift. The key issues for advisors are: (1) understanding the categories of VAT cases and in particular the difference between complex and other categories; (2) assimilating the differences in the costs rules; (3) understanding the different route/mechanism for appeals; and (4) looking for the detail on the judicial review jurisdiction of the UT on which we have so much more to learn. There are always unpredictable effects when changes are implemented on so significant a scale as this. The changes have been made in a short time frame. Doubtless there will be some bumps in the road ahead. Philippa Whipple 1 Crown Office Row Temple London EC4Y 7HH Tel:

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