TC09655 - [2025] UKFTT 01206 (TC)

There are two glaring inconsistencies between the evidence given by Mr Borthwick in his witness statement and that which he subsequently gave in his oral testimony. These are matters of considerable substance.

The first concerns involvement of Dr Willets. In his written statement, Mr Borthwick said that Dr Willets was recommended to him by a friend and that he contacted her after the end of the first hearing (“once the dust had settled”). Yet Dr Willets herself, as confirmed by Mr Borthwick, said that by the date of the hearing she had been advising the company in connection with environmental audits for a number of years.

The second concerns the details of the advice given to him on the Monday and the Tuesday concerning the prospect of ongoing litigation by HMRC. In his written statement he says that this was given to him by his counsel after the hearing on the Monday, following which he “returned from the Tribunal anxious and in a panic”. He could see litigation extending into the future and “the following morning I instructed my representative to withdraw my appeal”.

No mention was made of the involvement of the paralegal. Yet in his oral testimony he says that the advice regarding the prospect of ongoing litigation should HMRC succeed was given to him initially not by counsel at the tribunal after the hearing on the Monday, but by the paralegal back at the hotel.

And it was only the following morning, the Tuesday, that having discussed this with counsel, he instructed counsel to withdraw.

These inconsistencies have caused us to doubt the reliability of other evidence given by Mr Borthwick. In particular whether he was indeed given a 60:40 prospect of success by counsel; whether he indeed thought that LP’s evidence went well; and whether, as suggested by Ms Brown, the real reason he is pursuing the reinstatement application is not because he panicked at the first hearing and made an irrational decision, but rather because he now thinks he has a better chance of success than that given by his advisers, following LP’s evidence, either on the Monday evening or the Tuesday morning, on the basis of advice now given by Dr Willets.

We will consider the impact of this in the context of our discussions in light of the submissions made by the parties.