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Conclusions
the disclosure application
NGN applies for access to the following documents, which we will refer to as Categories (1), (2) and (3):
The transcript of the hearing before the FTT on 19 July 2021 “and any other transcripts of the preliminary proceedings”.
The appeal papers, including the Taxpayer’s substantive notice of appeal to the FTT in relation to the substantive decision against which he appealed.
The decision of the FTT dated 15 September 2021 referred to in the Decision.
The principles to be applied in determining such an application are uncontroversial. They are set out in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 and R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420, and can be summarised as follows:
The default position should be that access should be permitted on the open justice principle.
This extends not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing.
An applicant has no right to be granted access; it is for the applicant to explain why they seek access and how granting access will advance the open justice principle.
The open justice principle must be balanced against other factors, including the practicality and proportionality of granting access and possible harm to the maintenance of an effective judicial process and the legitimate interests of others.
HMRC supported the Disclosure Application. Mr Firth objected to it, on the ground that the documents in question were not necessary to understand the Decision, as contrasted with the substantive appeal to the FTT. Mr Firth also submitted that NGN had not put forward “credible evidence” as to why access was needed. Mr Bunting objected that these points should properly have been made before the hearing.
Having applied the principles summarised above, our decision in relation to the Disclosure Application is as follows:
Category (1): most of this transcript concerns issues other than those which were the subject matter of the appeal to the Upper Tribunal, and, in our opinion, access to the full transcript is not necessary to understand the Decision, as contrasted to the circumstances of the underlying substantive appeal. We have considered whether to provide access to the sections of the transcript which are relevant to an understanding of the Decision, but we have decided not to do so for the reason that all relevant sections are quoted in the Decision. There are no other transcripts of preliminary proceedings which are relevant to an understanding of the Decision.
Category (2): these documents were not considered by or before the Upper Tribunal in reaching the Decision, and so we decline to direct access to them.
Category (3): this document deals largely with the issue of a stay of the underlying appeal, which was not an issue dealt with in the Decision. Insofar as it relates to the application for anonymity, which was the subject of the Decision, access is necessary under the open justice principle and it is proportionate to grant access. Therefore, we grant access to the document, redacted to remove the reference to the identity of the Taxpayer and the sections dealing with the stay application.
We therefore decline to grant access to the documents in Categories (1) and (2), and grant access to the document in Category (3) on the basis of the redactions we have described.
As we pointed out to Mr Bunting in the hearing, NGN are able to apply to the FTT for access to documents relating to proceedings before the FTT.
In the Disclosure Application, NGN also apply for permission to report the contents of the documents in the documents bundle for this hearing. Such permission is granted, but the decision we set out below relating to anonymity during appeal rights should be borne in mind in reporting on any documents.
anonymisation during appeal rights
We have considered whether, as Mr Firth requested in his skeleton argument, we should anonymise this decision and/or preserve anonymity in relation to the Decision pending appeal processes, and if so on what terms.
Solely in order to “hold the ring” in relation to anonymity for the period of the appeal rights, this decision will initially be published in anonymised form and the Decision will remain anonymised. Thereafter:
This decision and the Decision will remain in anonymised form if permission to appeal the decision to refuse the Anonymity Application is granted by either this Tribunal or the Court of Appeal, subject to paragraph (2).
If (i) time for applying to the Court of Appeal for permission to appeal expires without any such application having been made, or (ii) both the Tribunal and the Court of Appeal refuse permission to appeal, then this decision and the Decision will be republished without anonymising the identity of the Taxpayer.
right of appeal
In relation to any application to this Tribunal for permission to appeal this decision, it is directed that the time limit applicable under Rule 44(4) of the Rules is reduced from one month to 21 days. This direction is made pursuant to the power which is included in Rule 5(3)(a) of the Rules to shorten the time for complying with any rule. We consider that in order to reduce any further delay, and taking into account the risk of further uninformed speculation as to the identity of the Taxpayer, it is expedient to reduce the usual time limit in this way.
MR JUSTICE MILES
JUDGE THOMAS SCOTT
Release date: 09 December 2024