![TC09593 - [2025] UKFTT 00892 (TC)](https://backend.juristeca.com/files/emisores/logo_7HSuEAV.png){kind=logo}
Proceeding in absence
Proceeding in absence
In its Notice of Appeal, one Mr Gary Clarkson, described as a tax agent, was named as the Appellant's representative. Mr Clarkson had been involved with the appeal, corresponding both with HMRC and the Tribunal, since September 2016, latterly on the headed notepaper of a firm known as F4TAX Ltd ('F4Tax'). Mr Clarkson described himself as a consultant with F4Tax.
This appeal was originally listed to be heard, for two days, in February 2025. On that occasion, Mr Clarkson sought an adjournment on the basis of ill-health. In reliance on what the Tribunal had been told, an adjournment was granted. HMRC had asked for some medical evidence to be provided (following the well-known guidance in Levy v Ellis-Carr [2012] EWHC 63 (Ch)) but, by the time that application came to be dealt with, the hearing date had already passed, and the Tribunal did not make any order.
The appeal was re-listed, on a face-to-face basis, on 8 and 9 July 2025, with the morning of 8 July being reading time.
On 30 June 2025, HMRC sent (in fact, re-sent, having already done so in advance of February's hearing) the hearing bundle and its skeleton argument to Mr Clarkson.
On the afternoon immediately before the hearing, HMRC wrote to Mr Clarkson (copied to the Tribunal), at his email address given on the Notice of Appeal, asking whether he intended to attend the hearing. There was no response to that email; but it did not bounce back to HMRC. It was therefore received.
When the Tribunal convened, at 2pm on 8 July, there was no appearance by or on behalf of the Appellant.
At the Tribunal's direction, HMRC's representative, Ms Gray, phoned the mobile number which she had for Mr Clarkson. She told us that her call was answered, by someone saying that it was Mr Clarkson's phone, but that he was in a meeting. Ms Gray told the person she was speaking to that she was phoning from a Tribunal hearing in London. That person said that the message would be passed on to Mr Clarkson, and that he would phone Ms Gray back. We stood the matter down for a further 20 minutes to see whether any such call was made. It was not. In the meanwhile, Ms Gray phoned Mr Clarkson's phone again, and spoke to the same person, who told her that she had passed the message on to Mr Clarkson.
Rule 33 of the Tribunal's Rules ("Hearings in a party's absence") provides that, if a party fails to attend a hearing, the Tribunal may proceed with the hearing if the Tribunal (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing.
We were satisfied that the conditions in Rule 33 were met. Although the Hearing Notices were not in the bundle placed before us, we were satisfied that reasonable steps - being those set out above - had been taken to notify the Appellant (through Mr Clarkson) of the hearing; and that it was in the interests of justice to proceed with the hearing.
After the hearing, the panel requested, and was provided by the Tribunal's administration with, the Notice of Hearing (and other documents) sent by the Tribunal to Mr Clarkson, to his correct email address, on 30 May 2025; and also, on the same day, to the partnership at its correct postal address in Jersey. Hence, and even if the above steps had not been taken by Ms Gray, Mr Clarkson, being the Appellant's representative, as well as the Appellant, had been formally notified by the Tribunal of the hearing.
At 6pm on 8 July - that is to say, after the hearing had concluded - the Tribunal received the following email from a Mr Kevin Farley, who is a director of F4Tax. He wrote:
"Dear Sir or Madam,
I have just been made aware that the above named tribunal is/was to be held this afternoon and concluding tomorrow.
At present the appellant has not secured a replacement for their previous agent (Gary Clarkson) who withdrew from representation under ongoing health reasons.
Due to the lateness of this response, and the amount of work concluded by all parties, the appellant will have no representation at this tribunal.
Both the appellant and I have seen no formal notification of the rescheduled dates until this afternoon, which was sent just an hour ago by email.
We can only apologise for the lack of communication on the appellants part, and the previous agent, and trust that the tribunal will look at the arguments made on the appellants behalf in an objective manner." (the italicised part is emphasis added by us).
We remark as follows:
The email came after the hearing had concluded;
Mr Farley, on behalf of F4Tax, gives the impression that he was familiar with Mr Clarkson's involvement, and was authorised to write on behalf of the Appellant;
Mr Clarkson was the nominated representative, and had never told the Tribunal or HMRC that he was no longer to be treated as the nominated representative. Even though, unlike in the civil courts, there is no procedure in the Tribunal's Rules for a representative to remove themselves from the record, there had been opportunities for Mr Clarkson to have done so, including but not limited to when receiving the Notice of Hearing and HMRC's emails about the hearing;
Nothing was said as to when Mr Clarkson had withdrawn, or what efforts had been made by the Appellant (which had not contacted the Tribunal either) to find alternative representation;
Mr Clarkson was in any event a consultant of F4Tax, meaning that F4Tax itself bore at least some responsibility for ensuring that the Tribunal was informed of any change in representation;
Mr Farley did not ask the Tribunal to reconvene on the second listed day; nor did he indicate that he or anyone from his firm or instructed by the Appellant would attend if it did;
We note the careful wording that neither Mr Farley nor the Appellant was notified of the hearing; but Mr Clarkson undoubtedly was: see above;
Contrary to what Mr Farley said, presumably on instructions from the Appellant, the Appellant had also been notified: see above;
The efficacy of communication between the Appellant, Mr Clarkson and/or F4Tax was entirely a matter for them; and not for the Tribunal or HMRC. As far as the Tribunal was concerned, Mr Clarkson was representing the Appellant, and he was given due notice of the re-scheduled hearing;
As an aside, Mr Clarkson's alleged ill-health so that he could no longer represent the Appellant, is not obviously consistent with Ms Gray having been told that he was in a meeting.
As to the interests of justice:
Even disregarding the adjournment, the Tribunal and HMRC had allocated considerable public resources to the hearing of this appeal;
In the absence of any communication from the Appellant and/or Mr Clarkson (including a failure to respond to HMRC's email the day before the hearing) an adjournment would not have served any obviously useful purpose;
We did have before us, and therefore could consider, written submissions made by Mr Clarkson, on behalf of the Appellant, dated 6 February 2025.
It was in the interests of justice to proceed.