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THE EVIDENCE AND THE FACTS
THE EVIDENCE AND THE FACTS
We were provided with a bundle of documents as well as a copy of LP’s original expert witness report and an authorities bundle, supplemented by three further authorities handed up to us by Mr Paulin at the hearing. Mr Robert Borthwick (“Mr Borthwick”), the managing director of the appellant and on whose instructions the original appeal had been withdrawn, tendered a witness statement on which he was cross examined. Ms Heather Wong, the lawyer employed by HMRC who had conduct of this appeal, also tendered a witness statement which was largely taken as read. She had appended to that witness statement, her notes of the evidence given by LP, and Mr Paulin referred to some of those notes in his submissions. He did not cross examine Ms Wong. Dr Anna Willets, the lawyer who was responsible for submitting the reinstatement application, also chipped in as regards her relationship with the appellant (see below).
Background
From this evidence we find the facts set out at [1]-[4] above.
- Heading
- INTRODUCTION
- THE LAW
- Pierhead
- THE EVIDENCE AND THE FACTS
- Mr Borthwick’s written evidence
- There would also be reputational consequences if the assessment and penalty were not successfully appealed He thought LP’s evidence on the Monday “went well”
- He asked her to make the reinstatement application which she did Mr Borthwick’s oral evidence
- The reliability of Mr Bortwick’s evidence
- THE POST HEARING CONCESSION
- DISCUSSION
- When exercising discretion under Rule 2, we should consider the principle set out in Pierhead and in particular whether HMRC would be prejudiced by the reinstatement, what loss there would be to the a
- Prejudice to HMRC
- Loss to the appellant
- Merits
- The appellant’s grounds of appeal and skeleton argument make out a strong prima facie case Mr Borthwick’s evidence was that he was advised by counsel that he had a strong (60:40) case
- The overall balancing exercise When exercising our discretion under Rule 2, an important consideration is the reason why the appellant withdrew its appeal
- The balance of prejudice weighs heavily in dismissing the application to reinstate The FTT’s decision in Rolls Group & Others v HMRC [2015] UKFTT 0404 (“ Rolls ”) citing Pierhead is authority for a number of propositions. Reinstatement is a matter of
- She couched her submissions for opposing the application under a number of headings as set out below No automatic right to reinstatement
- No good reasons
- And the real reason for reinstatement is that he has had an opinion from Dr Willets that the company has a better chance in the appeal than it had been given following those discussions with counsel
- Prejudice to the parties
- Merits
- The overriding objective
- Our view
- The factors
- The balancing exercise
- Conclusions