[2024] UKUT 287 (AAC)

We can refer to this issue very briefly, since the parties were agreed that it only arose if we concluded that the FTT was correct in adopting a limb (ii) approach to the ability to combine the EMV Data with data that identified the cardholders. We have explained under Issue 1 why that was an error of law.

This part of Ground 1 was based on the proposition that it was unfair of the FTT to adopt the limb (ii) approach without giving the parties an indication that this was under consideration and without giving them an opportunity to address this. We have already noted that it is a fundamental principle of fairness that each party to a judicial process has an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when reaching its determination (paragraph 92 above). In this instance, contrary to that well-established principle, the parties were not made aware before receiving the FTT’s decision that it was intending to take a limb (ii) approach. Although we do not need to address Ground 3 in detail, we consider it important to emphasise this.