A recent tribunal decision confirms that pleadings may be disclosed to third parties to enable professional commentary on important tax issues.
Many of us follow ongoing tax tribunal cases with interest, scrutinising decisions once issued and even attending hearings that we are not involved in. This is relatively straightforward, as most hearings are public and most decisions are also published online. However, sometimes a third party may wish to go further and see pleadings or other documents from a case they are not involved in. The reasons for this vary: that party or their clients may be involved in a case on the same issue, they may wish to better understand the arguments in order to advise clients more generally, or they may simply want to fully understand the arguments and evidence in the case for their own edification. In these circumstances, it is open to the third party to apply for disclosure of those documents.
We were in this position recently, having become aware of a case (Osmond and another v HMRC [2024] UKFTT 378 (TC)) that raised an issue which was also raised in one of our clients’ appeals. The issue in question related to the time limit for issuing assessments under the Transactions in Securities regime in ITA 2007 Part 13 Chapter 1. Following the hearing, which we attended, we made an application for disclosure of the parties’ skeleton arguments. The tribunal granted our application in a separate written judgment in Osmond and another v HMRC [2024] UKFTT 414 (TC) (reported in Tax Journal, 31 May 2024).
The starting point is that any disclosure to third parties must advance the principle of open justice, which, as set out in R (oao Guardian News & Media) v City of Westminster Magistrates’ Court and the Government of the United States of America [2012] EWCA Civ 420 (at [79]), is ‘to enable the public to understand and scrutinise the justice system of which the courts are the administrators’. The principle applies to all courts and tribunals exercising the judicial power of the state, but it does not allow unfettered access to documents: it is for the court or tribunal in question to use their inherent jurisdiction to decide whether providing access to documents in a particular case would advance the principle of open justice.
In applying that principle, the tribunal must consider a number of factors that are set out in case law and comprehensively summarised in Cider of Sweden Ltd v HMRC [2022] UKFTT 76 (TC) and in JTI Acquisition Company (2011) Ltd v HMRC [2021] UKFTT 446 (TC). In a nutshell:
The person seeking access must have a legitimate interest in seeing the documents. They must explain why they are seeking access and how that will advance the open justice principle.
The tribunal must consider the purpose of the open justice principle and the value of the information in advancing that purpose, as well as any risk of harm to the maintenance of an effective judicial process or to the legitimate interests of others.
The tribunal must also consider the practicalities and proportionality of granting disclosure.
Relying on those principles, we advanced two main grounds in our application. The first ground centred on the assistance that we would derive from having sight of the skeleton arguments in advising our own clients, both in relation to pursuing the substantive legal arguments as well as the procedural course of action they may take. The tribunal accepted that we had a legitimate interest in seeking the skeleton arguments on that basis, and that it was proportional and practical for them to be disclosed.
Of potential wider application, our second ground was that disclosure of the skeleton arguments would enable accurate and meaningful professional commentary on an important tax issue that had already generated interest in the wider tax community. While acknowledging an ‘initial misgiving’, the tribunal held that this ground should not be treated any differently to an application on behalf of specific clients. The tribunal went on to explain that this would enable judges to ‘be judged by the public at large rather than just the three clients for whom the applicant acts’, and that ‘it would seem practically sensible for the applicant [i.e. us] to put the requested documents into the public domain rather than have a number of other organisations (such as the CIOT) or individuals bringing separate applications’.
This decision therefore clears up some ambiguity around what amounts to a legitimate interest in these circumstances and adopts a sensible and pragmatic approach (we would say that!) to enable professionals to understand better how tribunal decisions came to be made and engage in more meaningful professional commentary. The tribunal’s findings are not caveated and hopefully they will be adopted by other tribunals when similar applications are made. This is welcome news that we expect will facilitate discourse on other tax issues of wider interest.
Home >Articles > Third party disclosure in the tax tribunal
Third party disclosure in the tax tribunal
A recent tribunal decision confirms that pleadings may be disclosed to third parties to enable professional commentary on important tax issues.
Many of us follow ongoing tax tribunal cases with interest, scrutinising decisions once issued and even attending hearings that we are not involved in. This is relatively straightforward, as most hearings are public and most decisions are also published online. However, sometimes a third party may wish to go further and see pleadings or other documents from a case they are not involved in. The reasons for this vary: that party or their clients may be involved in a case on the same issue, they may wish to better understand the arguments in order to advise clients more generally, or they may simply want to fully understand the arguments and evidence in the case for their own edification. In these circumstances, it is open to the third party to apply for disclosure of those documents.
We were in this position recently, having become aware of a case (Osmond and another v HMRC [2024] UKFTT 378 (TC)) that raised an issue which was also raised in one of our clients’ appeals. The issue in question related to the time limit for issuing assessments under the Transactions in Securities regime in ITA 2007 Part 13 Chapter 1. Following the hearing, which we attended, we made an application for disclosure of the parties’ skeleton arguments. The tribunal granted our application in a separate written judgment in Osmond and another v HMRC [2024] UKFTT 414 (TC) (reported in Tax Journal, 31 May 2024).
The starting point is that any disclosure to third parties must advance the principle of open justice, which, as set out in R (oao Guardian News & Media) v City of Westminster Magistrates’ Court and the Government of the United States of America [2012] EWCA Civ 420 (at [79]), is ‘to enable the public to understand and scrutinise the justice system of which the courts are the administrators’. The principle applies to all courts and tribunals exercising the judicial power of the state, but it does not allow unfettered access to documents: it is for the court or tribunal in question to use their inherent jurisdiction to decide whether providing access to documents in a particular case would advance the principle of open justice.
In applying that principle, the tribunal must consider a number of factors that are set out in case law and comprehensively summarised in Cider of Sweden Ltd v HMRC [2022] UKFTT 76 (TC) and in JTI Acquisition Company (2011) Ltd v HMRC [2021] UKFTT 446 (TC). In a nutshell:
The person seeking access must have a legitimate interest in seeing the documents. They must explain why they are seeking access and how that will advance the open justice principle.
The tribunal must consider the purpose of the open justice principle and the value of the information in advancing that purpose, as well as any risk of harm to the maintenance of an effective judicial process or to the legitimate interests of others.
The tribunal must also consider the practicalities and proportionality of granting disclosure.
Relying on those principles, we advanced two main grounds in our application. The first ground centred on the assistance that we would derive from having sight of the skeleton arguments in advising our own clients, both in relation to pursuing the substantive legal arguments as well as the procedural course of action they may take. The tribunal accepted that we had a legitimate interest in seeking the skeleton arguments on that basis, and that it was proportional and practical for them to be disclosed.
Of potential wider application, our second ground was that disclosure of the skeleton arguments would enable accurate and meaningful professional commentary on an important tax issue that had already generated interest in the wider tax community. While acknowledging an ‘initial misgiving’, the tribunal held that this ground should not be treated any differently to an application on behalf of specific clients. The tribunal went on to explain that this would enable judges to ‘be judged by the public at large rather than just the three clients for whom the applicant acts’, and that ‘it would seem practically sensible for the applicant [i.e. us] to put the requested documents into the public domain rather than have a number of other organisations (such as the CIOT) or individuals bringing separate applications’.
This decision therefore clears up some ambiguity around what amounts to a legitimate interest in these circumstances and adopts a sensible and pragmatic approach (we would say that!) to enable professionals to understand better how tribunal decisions came to be made and engage in more meaningful professional commentary. The tribunal’s findings are not caveated and hopefully they will be adopted by other tribunals when similar applications are made. This is welcome news that we expect will facilitate discourse on other tax issues of wider interest.
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