UT/2023/000023 - [2024] UKUT 00096 (TCC)

Shortly after the hearing, Mr Fraser requested permission to file a brief note with the tribunal providing further detail in response to various queries we had raised during the hearing in the course of counsels’ submissions. He considered he had not had the opportunity to respond fully to these in the course of the hearing through Cozy Pet’s counsel. In general, the proper time to make such points, or to make a request for further time to address them, is at the hearing. The hearing is listed as a final hearing and should be treated as such. We were conscious however of the fact that Mr Fraser and Cozy Pet’s counsel may not have had the same immediacy and ease of communication as they might have had in a physical hearing as the hearing was (contrary to Cozy Pet’s preference) heard remotely. (The hearing had been listed remotely because of concerns the usual court premises would not be available due to electrical power problems at the court building.) We allowed Mr Fraser to put in his note but indicated we would decide when making our decision whether to take it into account. We directed the note should meet various conditions including that it should be restricted to matters in response to the panel’s questions to counsel, that it should not repeat matters already raised, and that it should only refer to materials that were in the Hearing Bundle (which had set out the materials before the FTT). HMRC were given the opportunity to make representations in response.

We agree with HMRC (whose primary position was that the opportunity for further submissions should not be allowed), that the response Mr Fraser prepared did not meet the specified conditions. The points largely raised matters which had been raised previously (e.g. the essential role of wood to the structure of the cat trees as opposed to the cat tree’s covering). They also did not address the tribunal panel’s questions, or if they did, did so by reference to evidence that was not before the FTT (for instance in relation to the diameter of the frame around the heavy-duty panels). To the extent the points raised new matters these were points that could and should have been raised below in the FTT. In the circumstances we did not consider it in the interests of justice to take account of the points in Mr Fraser’s post-hearing submissions and accordingly did not do so.