[2023] UKUT 190 (LC)

In his grounds of appeal, Dr Van Dellen advanced a variety of points: the FTT had been wrong to suggest that it did not have jurisdiction; it had been wrong to say that the appellant had not provided a good reason, as his non-receipt of the notices was such a reason; the notices were not provided until 29 July 2022, so time for bringing an appeal should start from that date; no prejudice had been caused to the respondent; the FTT had failed adequately to have regard to the amount at stake or the underlying merits of the appeal.

This is an appeal against the exercise by the FTT of a discretion whether to allow the appeal to proceed or to strike it out. The limits of an appellate tribunal’s role when asked to review such an exercise of discretion are well-known. They were explained by Lord Neuberger PSC in BPP Holdings Limited v Commissioner for Her Majesty’s Revenue and Customs [2017] UKSC 55 (a case about non-compliance with procedures in the FTT Tax Chamber) at [33]:

“However, the issue whether to make a debarring order on certain facts is very much one for the tribunal making that decision, and an appellate Judge should only interfere where the decision is not merely different from that which the appellate Judge would have made, but is a decision which the appellate Judge considers cannot be justified. In the words of Lawrence Collins LJ in Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 para 33:

“An appellate Judge should not interfere with case management decisions by a Judge who has applied the correct principles and who has taken into account matters that should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the Judge.”

In other words, before they can interfere, appellate Judges must not merely disagree with the decision. They must consider that it is unjustifiable”.

Of course, those observations emphasise the respect which is due to a discretionary decision made by a Judge “who has applied the correct principles”. That prompts the question: what are the correct principles when an appellant claims not to have received a final penalty notice and relies on that fact as justifying the bringing of an appeal long after the 28 day time limit imposed by rule 27(2)?

The Judge considered that the relevant principles were those applicable to a decision to strike out proceedings either because the FTT lacks jurisdiction (a mandatory ground under rule 9(2)(a)) or because the proceedings are an abuse of process (a discretionary ground under rule 9(3)(d)).

For his part, Dr Van Dellen argued that the appropriate principles should be borrowed from the civil courts and were to be found in the decision of the Court of Appeal in Denton v White [2014] EWCA Civ 906. In that case the Court of Appeal gave guidance on the application of CPR rule 3.9, which is concerned with relief from sanctions. It commended a three-stage assessment. The first stage was to identify and assess the seriousness or significance of the failure to comply with the particular rule, practice direction or order which had been breached. The second stage was to consider why the failure or default had occurred. The third stage was then to consider all the circumstances of the case, so as to enable the court to deal justly with the application. Dr van Dellen submitted that the FTT had failed to give proper consideration to the third of these stages.