[2024] UKUT 206 (AAC)

The Upper Tribunal said the following in HMRC vFairford at paragraph 41:

“In our judgment an application to strike out in the FTT under rule 8(3)(c) should be considered in a similar way to an application under CPR r3.4 in civil proceedings (whilst recognising that there is no equivalent jurisdiction in the FTT Rules to summary judgment under Part 24). The tribunal must consider whether there is a realistic, as opposed to a fanciful (in the sense of it being entirely without substance), prospect of succeeding on the issue at a full hearing, see Swain v Hillman [2001] 1 All ER 91 and Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at para 95 per Lord Hope of Craighead. A ‘realistic’ prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472. The tribunal must avoid conducting a ‘mini-trial’. As Lord Hope observed in Three Rivers, the strike-out procedure is to deal with cases that are not fit for a full hearing at all.”

For completeness, I note that in The First De Sales Ltd Partnership v HMRC [2019] 4 WLR 21, the Upper Tribunal said that although the above summary in Fairford was “very helpful”, it preferred to apply a more detailed statement of principles, as set out in that case at paragraph 33.