Keeping calm and carrying on – with the help of technology.
Over the last fortnight, the Ministry of Justice and the Courts & Tribunals Service have published a slew of emergency guidance so that justice can continue to be administered during this unprecedented public health emergency. This update sets out the most relevant guidance for tax appeals in the First-tier and Upper Tribunals (as at the time of writing, 25 March, although the position continues to evolve).
On 24 March, the FTT (Tax Chamber) issued three publications (the second and third on a provisional basis for a period of six months, subject to change without notice if necessary).
First, with immediate effect, the FTT directed:
The extension relates only to ‘current proceedings’ and does not apply to the time limit for notifying appeals to the FTT. It is unclear how this direction is intended to apply to parties with imminent hearings; such parties should seek clarification from the FTT. All parties should consider whether their directions remain appropriate and make joint applications to the FTT accordingly.
Second, Guidance for users on the administration and conduct of proceedings was issued. In particular, all applications and substantive appeals will be dealt with in writing as far as possible. If a matter cannot be dealt with on the papers, a remote hearing (i.e. by telephone or video) will be arranged. The Tax Chamber’s administrative centre in Birmingham will arrange telephone conference or video facilities; hearings conducted this way will be recorded where practicable.
Since judges will be working remotely, parties should email the tribunal electronic copies of all necessary documents (in editable format where possible). In the past, emails with large attachments have sometimes not been received by the tribunal. If you do not receive an automatically-generated reply confirming receipt, you should contact the tribunal.
If a case is not suitable for a remote hearing (e.g. because a site visit is necessary), it will be listed for a date in the future when a physical hearing is safe. But the guidance is clear that proceedings should not be adjourned or postponed without directions where matters can be dealt with remotely. At the time of writing, it is understood that substantive hearings are not being adjourned simply because the issues are complex.
The third publication is a provisional practice statement on the categorisation of tax cases in the Tax Chamber. The main change is to extend the ‘default paper’ category (where cases are determined without a hearing) to include penalty appeals of up to £20,000.
More general guidance for court and tribunal users is published on Gov.uk. The bottom of the web-page contains further links, including to two pilot practice directions concerning the FTT and UT. The Tax and Chancery Chamber of the UT does not currently have its own bespoke guidance so users should refer to the Pilot practice direction: contingency arrangements in the FTT and the UT (19 March). This records that decisions should be made without a hearing wherever possible. For tax, this will likely only to apply applications (e.g. for permission to appeal and for directions) and not substantive appeals. The practice direction also proposes a ‘triage’ scheme. If the judge considers that a matter can be decided on the papers and the parties have not yet indicated that they require a hearing, the judge can issue a ‘provisional decision’ to them and ask whether they consent to it or require a hearing. It is understood that the FTT will not be using the triage scheme; the UT’s position is not yet known. If a hearing is necessary, it will take place remotely wherever possible.
The first tax appeals by video link have already taken place. Indeed, HMRC’s appeal from the Court of Appeal in HMRC v Fowler [2018] EWCA Civ 2544 was the first ever case to be heard by the Supreme Court by video link (on 24 March). Early reports suggest that there have been some delays caused by connectivity or other technical issues. Accordingly, whilst everyone gets to grips with the new system, it may be advisable to schedule a pre-hearing call between the parties and the judge to ensure the technology is working properly.
The tribunals are well-aware of the pressures caused by the pandemic. Advisers can help by being proactive and responsive, for example, seeking to agree directions and other applications with HMRC wherever possible. Since judges will be deciding matters on the papers more frequently, it is of paramount importance that documents sent to the tribunal are clearly drafted and labelled. Telephone/video hearings present their own unique challenges. So far as presentation is concerned, if you are acting as advocate, make sure you speak clearly, slower than normal and that the judge is keeping up with the documents you refer to.
Litigation is stressful for clients at the best of times. As advisers, we have a responsibility to work constructively and cooperatively with HMRC and the tribunal to ensure our clients’ appeals proceed fairly, justly and above all safely for everyone concerned, including ourselves.
We understand the general stay has since been updated, and the revised guidance is available from the judiciary website.
Keeping calm and carrying on – with the help of technology.
Over the last fortnight, the Ministry of Justice and the Courts & Tribunals Service have published a slew of emergency guidance so that justice can continue to be administered during this unprecedented public health emergency. This update sets out the most relevant guidance for tax appeals in the First-tier and Upper Tribunals (as at the time of writing, 25 March, although the position continues to evolve).
On 24 March, the FTT (Tax Chamber) issued three publications (the second and third on a provisional basis for a period of six months, subject to change without notice if necessary).
First, with immediate effect, the FTT directed:
The extension relates only to ‘current proceedings’ and does not apply to the time limit for notifying appeals to the FTT. It is unclear how this direction is intended to apply to parties with imminent hearings; such parties should seek clarification from the FTT. All parties should consider whether their directions remain appropriate and make joint applications to the FTT accordingly.
Second, Guidance for users on the administration and conduct of proceedings was issued. In particular, all applications and substantive appeals will be dealt with in writing as far as possible. If a matter cannot be dealt with on the papers, a remote hearing (i.e. by telephone or video) will be arranged. The Tax Chamber’s administrative centre in Birmingham will arrange telephone conference or video facilities; hearings conducted this way will be recorded where practicable.
Since judges will be working remotely, parties should email the tribunal electronic copies of all necessary documents (in editable format where possible). In the past, emails with large attachments have sometimes not been received by the tribunal. If you do not receive an automatically-generated reply confirming receipt, you should contact the tribunal.
If a case is not suitable for a remote hearing (e.g. because a site visit is necessary), it will be listed for a date in the future when a physical hearing is safe. But the guidance is clear that proceedings should not be adjourned or postponed without directions where matters can be dealt with remotely. At the time of writing, it is understood that substantive hearings are not being adjourned simply because the issues are complex.
The third publication is a provisional practice statement on the categorisation of tax cases in the Tax Chamber. The main change is to extend the ‘default paper’ category (where cases are determined without a hearing) to include penalty appeals of up to £20,000.
More general guidance for court and tribunal users is published on Gov.uk. The bottom of the web-page contains further links, including to two pilot practice directions concerning the FTT and UT. The Tax and Chancery Chamber of the UT does not currently have its own bespoke guidance so users should refer to the Pilot practice direction: contingency arrangements in the FTT and the UT (19 March). This records that decisions should be made without a hearing wherever possible. For tax, this will likely only to apply applications (e.g. for permission to appeal and for directions) and not substantive appeals. The practice direction also proposes a ‘triage’ scheme. If the judge considers that a matter can be decided on the papers and the parties have not yet indicated that they require a hearing, the judge can issue a ‘provisional decision’ to them and ask whether they consent to it or require a hearing. It is understood that the FTT will not be using the triage scheme; the UT’s position is not yet known. If a hearing is necessary, it will take place remotely wherever possible.
The first tax appeals by video link have already taken place. Indeed, HMRC’s appeal from the Court of Appeal in HMRC v Fowler [2018] EWCA Civ 2544 was the first ever case to be heard by the Supreme Court by video link (on 24 March). Early reports suggest that there have been some delays caused by connectivity or other technical issues. Accordingly, whilst everyone gets to grips with the new system, it may be advisable to schedule a pre-hearing call between the parties and the judge to ensure the technology is working properly.
The tribunals are well-aware of the pressures caused by the pandemic. Advisers can help by being proactive and responsive, for example, seeking to agree directions and other applications with HMRC wherever possible. Since judges will be deciding matters on the papers more frequently, it is of paramount importance that documents sent to the tribunal are clearly drafted and labelled. Telephone/video hearings present their own unique challenges. So far as presentation is concerned, if you are acting as advocate, make sure you speak clearly, slower than normal and that the judge is keeping up with the documents you refer to.
Litigation is stressful for clients at the best of times. As advisers, we have a responsibility to work constructively and cooperatively with HMRC and the tribunal to ensure our clients’ appeals proceed fairly, justly and above all safely for everyone concerned, including ourselves.
We understand the general stay has since been updated, and the revised guidance is available from the judiciary website.
