TC09639 - [2025] UKFTT 01113 (TC)

I understand that this is the first time that this issue has arisen and the parties have been unable to locate any authority on point.

This could be because it is, in my experience, the usual practice of parties when seeking to rely on additional documents, which have not been included in their LOD, to make an application to do so. Indeed, where a party (frequently an unrepresented appellant) fails to produce a LOD in accordance with directions, the Tribunal will write to them warning that:

“If you do not provide a List of Documents, the Judge at the hearing may not permit you to use in evidence to support your case any documents other than those produced by the other side, and the bundles at the hearing may not include the documents to which you wish to refer.”

However, the issue before me is not whether the parties should have adopted the usual practice, but whether, as a matter of law, a party can rely on documents that have not been included in their LOD.

Mr McNall, for Burton, contends that it is clear from the Directions that the LOD must include all documents that that party intends to rely upon or produce in connection with the appeal.

For HMRC, Mr Abernethy contends that the Disputed Documents, which were properly exhibited to signed witness statements filed and served in accordance with the Directions, are admissible. As such, he says, it would be incompatible with the overriding objective for the scope of a witnesses’ evidence to be restricted only to those documents included in the LOD and exclude evidence that was either not available or the relevance of which was not appreciated at the time the LOD was produced. Additionally, relying on the comments of the Tribunal at [57] in Addo and [20] in Clark Hill,he contends that the exclusion of the Disputed Documents would “reduce the value of evidence” given by the witnesses and risk the Tribunal “reaching a decision on incorrect facts”.

Having considered the Directions, particularly directions 1 and 2, it is clear that it is direction 1 that provides for the production of documents that a party intends to rely upon or produce in connection with the appeal. There is no provision or reference to documents in direction 2 which refers only to the provision of witness statements and does not mention exhibits to those statements. Although direction 4 does refer to exhibits to witness statements, there is nothing in that direction to indicate whether such exhibits can comprise new evidence or whether they should be restricted to the documents in the LOD.

In Addo the Tribunal observed, at [57], that Rule 27 did not require a party to disclose any other documents than those in its LOD and, at [58], that should any further documents be required to further the overriding objective, it could be addressed by making directions under Rule 16 or rule 5(3)(d). Although the Tribunal in Addo referred to such directions being made on the application of the “other party or by the Tribunal acting on its own initiative”, it is clear from Rule 5(3)(d), which provides that the Tribunal may by direction “permit”, ie grant permission to a party to provide documents or information, that a party may make an application to admit new evidence in support of its own case.

As such a party would have already set out the documents upon which it intended to rely or produce in proceedings under Rule 27 in its LOD, Rule 5(3)(d) must refer to additional documents or material, such as that which was not available or the relevance of which was not appreciated when the LOD was prepared. From this I take that before a party can adduce and rely upon new evidence not included in its LOD, it must first obtain a direction to that effect from the Tribunal.

Similarly, for consistency if nothing else, the same must also be the case where the admission and reliance on new evidence is sought where the requirement to provide a LOD is contained in directions. This is particularly so in the present case given the similarity between Direction 2 of the Directions and Rule 27. Both require a party to send or deliver to the other party and the Tribunal a list of documents in its possession or control which that party intends to rely upon or produce in the proceedings.

In the present case, contrary to my conclusion that they were required to do so, HMRC did not apply for a direction to rely on the Disputed Documents but included these as exhibits to the statements of its witnesses. As such, HMRC have failed to comply with the Directions.