TC09523 - [2025] UKFTT 00544 (TC)

We had a written witness statement from VP and he was also able to give oral evidence. He was examined and cross examined.

The oral evidence given by VP was unsatisfactory to the extent that in answer to a great many questions he was unable to remember facts and specifically dates in relation to when various actions were alleged to have taken place.

VP confirmed the status of his written witness statement as a record of the truth but on certain matters this was contradicted by his oral evidence. This adversely affected our assessment of the credibility of VP’s evidence.

The email of 28 March 2024, submitted by RS, set out the reasons why VP wished to lodge a late appeal and apply for the proceedings to be reinstated as follows:

The Appellant who suffers from Crohn’s disease and has other related health issues was admitted to hospital on 18 December 2024 for three nights, which he referred to as a ‘lengthy period’ in hospital. He was told to take rest on his return home.

This date was significant because it was on 19 December 2023 that the Direction was made by the tribunal. In his witness statement of 15 April 2025, VP stated he was not aware of the Unless Order nor its requirements nor the consequences of any failure to adhere to it. In his Witness Statement VP referred to his appeal being ‘struck out by order of the Tribunal on 10 January 2024 following the failure to comply with an UNLESS order made by the Tribunal on 19 December 2023.’

In his oral evidence, however, VP stated that he was aware of the Unless Order of 19 December 2023 but did not know when he became aware of it. Emails confirmed that VP had, on 15 January 2024, via his son’s email account, instructed RS to consider the Strike Out Order of the same date and that he subsequently discussed the Strike Out Order with RS.

In his oral evidence, VP stated that the reason it took so long to appeal against the Strike Out for failure to comply with the directions of 19 December 2023, was because he was looking to engage a lawyer to make the appeal.

VP stated that he recalled making contact with the Law Society of Scotland who provided some names, and he approached Balfour and Manson, Solicitors, but he could not find a lawyer who was able to act for him in making the appeal within 28 days. In the event the appeal was made by his accountants, ABC by email of 28 March 2024.

VP stated that he recalled discussing the Strike Out Order at a meeting with RS on 24 January 2024 but could not remember the details. This meeting was summarised in an email by the RS who wrote to HMRC on 8 February 2024. This set out why VP did not believe the assessments were correct but noted that he wished to bring the matter to a quick resolution having been, he felt, misguided by his previous professional advisers for over a decade.

In response to the question of why he had not confirmed whether or not he intended to proceed with his appeal and, if so, if he was represented and, if so, by whom, VP stated that he had left this matter with RS.

We were taken to a series of emails from MBS Solicitors (“MBS”), VP’s previous solicitors, who had declined to act for him on the basis that “you have showed complete reluctance to provide any cooperation” and because VP would not make payment, in advance, of fees and outlays which MBS set out would be incurred if the case progressed further.

VP stated that he always paid bills when they were presented but was not willing to make payment in advance to his solicitors and did not accept that his solicitor should cease to act if they were not paid in advance.

VP stated that, in any event, he did not have the funds required to pay MBS ‘upfront’ at that time but that he had always paid his legal fees when an invoice had been presented if necessary borrowing from his family.

MBS also required up-to-date accounts so that they could take matters forward. VP denied that he had not provided his solicitors with sufficient cooperation.

VP had stated that MBS had provided a substandard service and had failed to properly communicate with him but emails to him, from MBS, between 16 November 2023 to 11 December 2023 set out quite clearly what MBS intended to do and what steps should be taken to progress VP’s case.

Finally, in December 2023, when MBS decided that they were no longer willing to act, they set out clear steps as to what should happen next, including VP contacting the Law Society of Scotland to assist in the appointment of replacement solicitors. The emails also gave clear notice to VP that they were ceasing to act.

The correspondence from MBS showed that they were communicating with VP and RS about the appeal against HMRC and that they were demanding upfront fees given the risks involved, as they saw it, in the proposed litigation and the consequent liability for their own and counsel’s fees.

MBS had given notice to VP of their reasons for advising of their intention to withdraw from acting on 17 November 2023 which was followed on 11 December 2023 by an email formally doing so and advising that relevant parties had been so advised. This series of correspondence was in contradiction to VP’s statement where he stated he was not aware of MBS solicitors withdrawing from acting for him until “sometime later in 2024”.

VP stated that he had asked his accountant, RS, to act on his behalf in negotiating with HMRC who sought to serve VP’s interests in discussion with them in the period January to May 2024.

VP said he was not, however, aware of the detail of these negotiations which were ongoing on his behalf nor that RS had suggested, on his behalf, settling for £300,000.

We had a number of letters from VP’s medical consultant in relation to his unfortunate illness but it was established during the hearing that VP had capacity to give instructions on a number of occasions and HMRC made the distinction between being well enough to give evidence and being well enough to give instructions.

We were also directed to the occasion in 2023, when a Judge in the Court of Session had required VP to give evidence, which he did, at a time when he was telling HMRC that he did not have the capacity to give instructions or give evidence. In addition senior counsel had been instructed in at least one court and one tribunal hearing and could only so act, in the absence of a curator ad litem or possibly an attorney for which there was no evidence, if VP had been able to instruct them.