TC09667 - [2025] UKFTT 01254 (TC)

Fecha: 27-Ago-2025

Application to admit evidence

Application to admit evidence

Prior to the hearing on 30 July 2025 Len Lothian made an application to admit certain evidence. On 19 August 2025 HMRC confirmed they did not oppose this application. The evidence, which was included in the hearing bundle, was admitted into evidence at the hearing as it was in the interests of justice and not opposed.

At the outset of the hearing Len Lothian made an application to admit an affidavit of Mr Keith Melvin (2 pages). Mr Melvin was a former employee of Len Lothian who had produced the contract with Chelsea Kelly for the use of the unit where the Goods were found. Len Lothian had been trying to get Mr Melvin to give evidence for some time, but had been unsuccessful. In the week before the hearing Mr Melvin had responded to them and initially indicated he would give evidence. They had prepared a witness statement but the day before the hearing he indicated he would not attend. They therefore had produced an affidavit.

10.

It was agreed by the parties that the relevant test is in Martland v HMRC [2018] UKUT 178 (TCC) (“Martland”). The parties agreed this was unchanged by Medpro Healthcare Ltd v HMRC [2025] UKUT 255 (TCC).

11.

Applying the three stage test in Martland we decided to allow the evidence to be admitted:

(1)

The delay was serious and significant. The Directions provided for witness evidence to be served by 30 May 2025. It was thus about three months late.

(2)

The reason for the delay was not the fault of Len Lothian. They had been trying to obtain a witness statement from Mr Melvin for some time. It was the lack of cooperation of Mr Melvin which delayed this. That said, Len Lothian could have acted more cooperatively with HMRC. They could have kept HMRC up-to-date that they were still seeking the witness evidence.

(3)

In favour of admitting the evidence we take account of the fact that the delay is not the fault of Len Lothian and the evidence had the potential to be relevant and pertinent. (At the time when we decided to admit it we had not had the benefit of evaluating it in the context of all the evidence including the oral witness evidence, to determine what weight if any we would attach to it.) Against admitting the evidence is the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for time limits to be respected. Against it also is the prejudice to HMRC especially (i) it was noted that some time would be needed to prepare and consider the affidavit in the light of all other evidence and (ii) Mr Melvin could not be cross-examined. We found such prejudice to be modest given that (i) as the affidavit was a two page document it would not take Miss Roxburgh much time, as she conceded; and (ii) the inability to cross-examine Mr Melvin can be offset by the weight that is attached to the evidence.

12.

Having regard to all the relevant circumstances, while respecting time limits is important, in the particular circumstances, we found it was in the interests of justice to admit the affidavit into evidence.