TC09681 - [2025] UKFTT 01333 (TC)

Before considering the substantive application, there is a procedural point to be noted.

On 3 June 2024, the FTT issued an Unless Order which warned that, unless Moir filed an adequate Amended Statement of Case within 30 days, Moir’s original Statement of Case would be struck out. On 21 October 2024, Judge Fairpo confirmed that Moir’s Statement of Case was struck out. Judge Fairpo invited HMRC to make an application for their substantive application to be considered on the papers, which they duly did.

On 13 March 2025, the FTT invited Moir to comment on whether it wished to have an oral or paper hearing. On 25 March 2025, Moir sent a letter to the FTT, enclosing:

This response was evidently understood to be Moir’s consent to a paper hearing as, on 28 April 2025, HMRC’s application for a paper hearing was granted by Judge Sinfield.

I need to decide to what extent the documents submitted by Moir under cover of their letter of 25 March 2025 (and earlier documents Moir submitted) should be taken into account. Moir’s Statement of Case has been struck out and so will not be considered.

When deciding whether to take into account the other documents submitted by Moir, I note that if Moir had been barred then Rule 8(8) of the Tribunal Procedure (First-tier tribunal) (Tax Chamber) Rules 2009 would apply. This provides:

In Alpha Republic Limited v HMRC [2023] UKFTT 750 (TC), the Appellant had argued that HMRC’s Statement of Case was deficient. In pre-hearing correspondence, Judge Sinfield had written to the Appellant:

That correspondence suggests that Judge Sinfield understood that the effect of striking out a respondent’s case to be the same as, or similar to, barring that respondent. However, I bear in mind that this apparent understanding was conveyed in correspondence, written to elicit representations; it was not a formal decision. Judge Sinfield’s letter was also written against the background of the Appellants in that case having also applied for a barring order. I do not consider Judge Sinfield would necessarily have intended correspondence that was intended to progress the parties to hearing, to be his definitive opinion on this point.

Here, I consider it relevant that the Unless Order did not warn Moir that it would be barred as a consequence of non-compliance. In addition, when confirming Moir’s Statement of Case had been struck out, Judge Fairpo did not state that Moir was barred from taking any further part in these proceedings. Most relevantly, the fact that Judge Fairpo invited Moir to express a view on whether this hearing should be a paper hearing suggests that Judge Fairpo considered Moir was still able to take part in these proceedings, despite having struck out Moir’s Statement of Case.

I have concluded that the effect of striking out a respondent’s case is more limited in the FTT than the consequences of barring a respondent. Although this amounts to a relatively limited restriction on a respondent, I have concluded that the consequence of having its Statement of Case struck out in the FTT is simply that the respondent can no longer rely on that Statement of Case, and so is unable to rely on new points pleaded. While a Statement of Case contains a respondents’ pleadings (and in the higher courts the striking out of a Statement of Case would often be fatal to a party’s case) the only logical interpretation of events here is that, in the FTT, such a respondent is not barred from taking part in proceedings. There is nothing in Judge Fairpo’s Unless Order, or subsequent confirmation, to suggest Moir is not entitled to rely upon other documents and the evidence submitted to respond to the case made by HMRC.

Moir has stated that it wishes to rely upon the documents it submitted on 25 March 2025. Other than the Statement of Case, this is three pieces of correspondence between Moir (or its director) and HMRC. While these three letters were received late by the FTT, they are relevant to these proceedings and so should be admitted unless there is a compelling reason to not admit them. This correspondence does not take HMRC by surprise, and HMRC were aware that Moir wished to rely upon these three letters several weeks before HMRC filed their written submissions. I have decided that it would be appropriate for me to take into account the three letters, but not the struck out Statement of Case, when making this decision.