TC09506 - [2025] UKFTT 00497 (TC)

The first stage of the Martland process requires me to establish the length of the delay. As submitted by HMRC, the opt out application has been made very late. This delay is both serious and significant, and I need therefore to proceed to consider the next two stages of the process.

The reason given by the appellant for failing to comply with the time limit focusses on the delegation of the conduct of the appeal to Mr Ved. In the appellant’s view, he had provided the relevant information to Mr Ved who had let him down. He should not therefore be penalised for this.

Having identified this reason, I now need to conduct an evaluation of all the circumstances of the case which involves a balancing exercise assessing the merits of the reasons given for the delay with the prejudice which would be caused to both parties by granting or refusing permission. When conducting this balancing exercise I must give particular weight to the importance of litigation being conducted efficiently and at proportionate cost and of directions and time limits being respected. I can also have regard to any obvious strengths or weaknesses in the appellant’s case.

The appellant submits that he has a good reason for failing to meet the opt out deadline, namely putting the conduct of the appeal in the hands of Mr Ved. This is a very poor reason. It is clear on the authority of Katib that the failings by an agent are attributed to an appellant. If that agent had misled, for example, the appellant, then that might be a factor which could be taken into account at this final evaluation stage. But there is no submission that this is the case here.

The evidence is that:

Both the letter from the tribunal to the appellant of 17 August 2023 and HMRC’s letter to the appellant of 22 September 2023, clearly set out that the appeal had been categorised as complex, and that the appellant had right to opt out of the cost regime within a 28 day period (see [10 (7) and (9)] above).

These letters were given to Mr Ved by the appellant.

Mr Ved has had considerable experience in tax litigation and would have known of the costs opt out regime by dint of that experience.

For the foregoing reasons, I reject the opt out application and refuse permission for the appellant to opt out of the costs regime.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.