Upper Tribunal Tax and Chancery Chamber

UT/2024/000037 - [2024] UKUT 00322 (TCC)

Fecha: 09-Oct-2024

Discussion

Discussion

As set out at 11.2.2 of the Administrative Court Judicial Review guide 2024 (which in agreement with HMRC I see no reason not to apply to the current tribunal proceedings):

“…oral evidence is permitted at a judicial review hearing only exceptionally. Permission will be given only where oral evidence is necessary to dispose of the claim fairly and justly.”

That statement reflects the principles applied in cases such as R (oao Bancoult v Secretary of State for Foreign and Commonwealth Affairs) [2012] EWHC 2115 (Admin) (Stanley Burnton LJ) which have explained cross-examination is exceptional in judicial review “…largely because the primary facts are often not in dispute…” but that the court retains a discretion to order or permit cross examination where that is necessary for fair and just determination of the claim.

10.

In my judgment the circumstances here do mean that limited cross-examination is necessary to dispose of the claim fairly and justly:

(1)

The fact in question (the test the decision maker applied) is clearly a material fact on which a finding needs to be reached in order to resolve the claim. The claimants say the misapplication of the test constituted an error of law; HMRC’s defence disputes that. In agreement with the claimants, the fact that HMRC raise the defence that the outcome would not be substantially different if the decision maker had not applied the incorrect test does not mean the tribunal would not first have to decide whether the test was misapplied. If the claimants were unsuccessful in making out its allegations of unlawfulness, the need to consider the defence would not arise.

(2)

I also agree with the claimants that there is an apparent conflict between the letter, insofar as it suggests an erroneous test of “clear indication” was applied and the witness statement which disagrees such test was applied. As well as the relevant fact (what test the decision maker applied) being disputed, the evidence on the fact relied on by the parties apparently points in different directions. I would not regard it as sufficient for the claimants only to be able to make submissions on the relevance and weight of the witness statement. Where, in line with their grounds, the claimants seek the finding from the tribunal that the test applied was one of “clear indication” (that finding being contrary to the evidence in the decision maker’s statement that such test was not applied), and where such statement is relied on by HMRC, the claimants ought fairly to be able to test and challenge HMRC’s evidence on the point.

11.

I accordingly give permission for limited cross-examination. The claimants’ application indicated the cross-examination was not expected to take more than 30 mins. I would have thought that the outer limit of what was required but the duration and timetabling of the cross-examination will best be determined by the panel dealing with the substantive hearing. For the avoidance of doubt, the scope of the cross-examination topic permitted by this decision is limited to the issue of what test the decision maker applied in relation to the “reasonable disclosure” issue when making her decision.