TC09625 - [2025] UKFTT 01066 (TC)

It was part of HMRC’s case that the Application was “flawed” for two reasons:

I reject those submissions. In relation to the first point, it was plain from the Application that Mr Thornton was asking the Tribunal to issue directions “as if” CPR 31.7 applied. He was not asking the Tribunal to apply the CPR. In relation to the second point, an application is not flawed simply because it does not cite particular provisions of the Tribunal Rules. Such an approach would not be in accordance with the overriding objective, and in particular would breach Rule 2(2)(b), which requires the Tribunal to avoid unnecessary formality.

Mr Mciver accepted that, if the Application was not procedurally flawed, Rule 5(3)(d) provides the Tribunal with the jurisdiction to issue a disclosure direction, either in the form sought, or in accordance with the approach in Smart Price. He was correct to take that position: in Hughes the UT refers explicitly to the use of Rule 5(3)(d) for that purpose. Mr Mciver also accepted that a direction issued under that Rule, or under Rule 16, would be binding on HMRC in relation to an appellant in Scotland such as UWG.

As to whether I should use the CPR as a guide, I agree with Judge Greenbank when he said in Addo at [70]:

“…the CPRs provide useful guidance as to the extent of disclosure that should be ordered by the Tribunal having due regard, of course, to the nature of the proceedings before it.”

I also note that in Smart Price the Court of Appeal replaced the “global disclosure” directions issued by the FTT with a direction for disclosure as if CPR 31.6 applied, with the Namli exception. The same approach has been taken in subsequent FTT cases, including Rafiq v HMRC [2021] UKFTT 0361 (TC) (Judge Citron and Mr Howard) and Essex Trading.