TC09675 - [2025] UKFTT 01274 (TC)

The issue to be determined is whether the Appellant should be given permission to bring a late appeal ie to notify an appeal on 11 September 2023 523 days after the 30 day time limit for appealing had expired.

Applying the three-stage approach required by Martland, I first consider the seriousness and significance of the failure to comply with the original time limit. The relevant time limit is 30 days from the date of the Director Penalty Review. In this case, the appeal was 523 days late which was significantly outside the 30-day time limit. In my view, such a delay cannot be described as anything other than serious and significant which Mr Shepheard rightly accepted.

The second stage of Martland is to consider the reason why the time limit was not respected. The Appellant’s reason is that he was reliant on NXG to make an appeal to the First-tier Tribunal and he was certain that he they had done so. Further H Accountancy, his subsequent accountants, had applied for ADR on the assumption that an appeal had been made to the First-tier Tribunal.

Like Judge Sinfield in PBS following the general rule (about advisers) in Katib (see above), I take the view that if the failure to appeal the Director Penalty Review within the time limits was due to NXG or H Accountancy not following instructions and/or H Accountancy not identifying that an appeal of the Director Penalty Review had not been made (and given the lack of evidence I make no findings as to these facts), that would not constitute a good reason for the delay in appealing the Director Penalty Review. Further, even if the Appellant did establish these facts, I am not satisfied that there would be any reason to disapply the general rule in Katib in this case. In particular, in light of the amount involved (£127,806.30), I would expect the Appellant to have taken at least minimal steps to satisfy himself that the Director Penalty Review had been challenged by way of appeal (regardless of whether ADR was sought or not). Particularly given the reason for changing accountant: the lack of responsiveness on the part of NXG. Further, the steps to be taken (or to be checked whether were taken) were not complicated or difficult and were clearly set out in the Director Penalty Review which was sent to the Appellant’s home address. If the Appellant did check what NXG and H Accountancy were doing, or even what the state of play was when he stopped instructing NXG, then he should have known that an appeal of the Director Penalty Review had not been made and taken action resulting in an appeal to the Tribunal. There was no evidence that the Appellant had taken any of these steps nor any to suggest that NXG or H Accountancy had actively misled the Appellant about the existence of any appeal against the Director Penalty Review.

The third stage is to consider all the circumstances of the case. I must balance the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission to make a late appeal. I have considered all the relevant factors, and set out those of particular relevance as follows:

In balancing all of the relevant factors, I have concluded that following the Medpro approach that the Appellant ought not to be permitted to make an appeal out of time. I reach the same conclusion following the stricter approach set out in Martland. (Footnote: ¹)