Beagles: ‘staleness’ in discovery

Since 2008 the courts have been exploring whether there is a concept of ‘staleness’ when dealing with discovery assessments. The first case to test it was Corbally-Stourton v HMRC [2008] STC (SCD) 907 which saw the First-tier Tribunal (FTT) acknowledge that a discovery could go stale by defining that a discovery is something which ‘newly arises’. Subsequent cases have affirmed this interpretation with the Upper Tribunal (UT) decision in Charlton v HMRC [2012] UKUT 770 (TCC) stating that a discovery assessment must be issued whilst it retains its ‘essential newness’.

The decision in Pattullo v HMRC [2016] STC 2043 echoed this sentiment but chose the turn of phrase ‘fresh’ to describe the state of a discovery that should be acted upon. This choice of wording aptly reinforced...