In P Andrea v HMRC [2017] UKFTT 850 (24 March 2017), the FTT dismissed a privacy application made by a celebrity.
The appellant was a self-employed media entertainer and performer who earned his income from television and public appearances, performance on stage, modelling and writing. The substantive appeal concerned the deductibility of legal fees incurred in connection with defamation proceedings brought against his ex-wife (and settled out of court) and improvement costs to the security gates of his home. He applied for a private hearing and for the anonymisation of the decision.
The FTT observed that the principle of open justice was a fundamental common law principle. It also noted that HMRC did not oppose the application, which, from Mr Andrea’s point of view, seemed to lend support to the granting of the application. The FTT however quoted Ex p P (The Times, 31 March 1998): ‘when both sides agree that information should be kept from the public, that was when the court had to be most vigilant’.
The FTT noted that the substantive issue was whether the legal expenses were incurred for the appellant’s business, which in turn involved identifying the nature of the business. This did not require a detailed investigation into the libel action and the underlying facts or the personal life of the appellant with his ex-wife or with his children.
As to the fact that the appellant was a celebrity, the FTT considered that it weighed against allowing the hearing to be in private, quoting Moyles [2012] UKFTT 541: ‘hearing the appeal of such a person in private would give rise to the suspicion, if no more, that riches and fame can buy anonymity, and protection from the scrutiny which others cannot avoid’.
The FTT accepted that the libel mediation had taken place in private but it noted that while the terms of the settlement were not in the public domain, the fact that there had been a contribution towards Mr Andrea’s costs was public knowledge and so could be discussed openly at a hearing about the deductibility of his legal costs.
Mr Andrea also applied for the decision to be anonymised. The FTT noted that in tax cases, the public interest generally requires the precise facts relevant to the decision to be a matter of public record (Banerjee [2009] EWHC 1229). For example, the fact that the appellant was a celebrity was the reason for his claim to deduct the gate improvement costs. This was of wider public interest. The FTT added that against the right to respect for private and family life under ECHR Art 8 is the reasonable expectation of the press to freedom of expression under ECHR Art 10. The FTT found that there were no exceptional circumstances, such as matters touching on national security or the appellant’s personal safety, which justified an anonymity order.
Having found that anonymity would be a disproportionate measure, the FTT suggested two alternative procedural measures. Under the Contempt of Court Act 1981, an order could be made to restrict the reporting of proceedings during an interim period; and under the Tribunal Rules 2009 r 14, confidential documents could be kept out of the public domain and identified in an annex for the use of the court.
Why it matters: The appellant seemed to have a compelling case to justify anonymity; not only was he a celebrity, but the tax related to a libel action which involved his relationship to both his ex-wife and his stepson, and the libel action mediation itself had been held in private. Yet the application for privacy was dismissed. The substantive issues did not turn on confidential or private matters, which therefore would not be discussed in court, and there were other ways of addressing the taxpayer’s concerns in relation to his privacy.
Also reported this week:
D Higgins v HMRC - Principal private residence relief and period of ownership
In P Andrea v HMRC [2017] UKFTT 850 (24 March 2017), the FTT dismissed a privacy application made by a celebrity.
The appellant was a self-employed media entertainer and performer who earned his income from television and public appearances, performance on stage, modelling and writing. The substantive appeal concerned the deductibility of legal fees incurred in connection with defamation proceedings brought against his ex-wife (and settled out of court) and improvement costs to the security gates of his home. He applied for a private hearing and for the anonymisation of the decision.
The FTT observed that the principle of open justice was a fundamental common law principle. It also noted that HMRC did not oppose the application, which, from Mr Andrea’s point of view, seemed to lend support to the granting of the application. The FTT however quoted Ex p P (The Times, 31 March 1998): ‘when both sides agree that information should be kept from the public, that was when the court had to be most vigilant’.
The FTT noted that the substantive issue was whether the legal expenses were incurred for the appellant’s business, which in turn involved identifying the nature of the business. This did not require a detailed investigation into the libel action and the underlying facts or the personal life of the appellant with his ex-wife or with his children.
As to the fact that the appellant was a celebrity, the FTT considered that it weighed against allowing the hearing to be in private, quoting Moyles [2012] UKFTT 541: ‘hearing the appeal of such a person in private would give rise to the suspicion, if no more, that riches and fame can buy anonymity, and protection from the scrutiny which others cannot avoid’.
The FTT accepted that the libel mediation had taken place in private but it noted that while the terms of the settlement were not in the public domain, the fact that there had been a contribution towards Mr Andrea’s costs was public knowledge and so could be discussed openly at a hearing about the deductibility of his legal costs.
Mr Andrea also applied for the decision to be anonymised. The FTT noted that in tax cases, the public interest generally requires the precise facts relevant to the decision to be a matter of public record (Banerjee [2009] EWHC 1229). For example, the fact that the appellant was a celebrity was the reason for his claim to deduct the gate improvement costs. This was of wider public interest. The FTT added that against the right to respect for private and family life under ECHR Art 8 is the reasonable expectation of the press to freedom of expression under ECHR Art 10. The FTT found that there were no exceptional circumstances, such as matters touching on national security or the appellant’s personal safety, which justified an anonymity order.
Having found that anonymity would be a disproportionate measure, the FTT suggested two alternative procedural measures. Under the Contempt of Court Act 1981, an order could be made to restrict the reporting of proceedings during an interim period; and under the Tribunal Rules 2009 r 14, confidential documents could be kept out of the public domain and identified in an annex for the use of the court.
Why it matters: The appellant seemed to have a compelling case to justify anonymity; not only was he a celebrity, but the tax related to a libel action which involved his relationship to both his ex-wife and his stepson, and the libel action mediation itself had been held in private. Yet the application for privacy was dismissed. The substantive issues did not turn on confidential or private matters, which therefore would not be discussed in court, and there were other ways of addressing the taxpayer’s concerns in relation to his privacy.
Also reported this week:
D Higgins v HMRC - Principal private residence relief and period of ownership
