UT (Tax & Chancery) UT/2022/000155 - [2025] UKUT 00003 (TCC)

It follows from the Tribunal Rules that while a legal representative may notify the Tribunal of its own appointment, a party appointing a non-legal representative^[1] must notify the Tribunal of that appointment. I was not shown any evidence that, at or around the time Aquarius Consultants sent the 2013 Appeals to the Tribunal, Aquarius sent written notification of the appointment of Aquarius Consultants as a non-legal representative. It follows that I have concluded that, by 3 December 2013, Aquarius Consultants had not been validly appointed as Aquarius’s representative under Rule 11 of the Tribunal Rules and, accordingly, there was no question of the Tribunal being obliged to send correspondence to Aquarius Consultants under Rule 11(4).

Ms Nathan argued that even if Aquarius Consultants had been validly appointed as a representative, the Tribunal’s letter of 3 December 2013 was still validly served on Aquarius since it had been sent to Aquarius at the address that Aquarius gave on its Notice of Appeal and it was not suggested that Aquarius had not received it. Therefore, Ms Nathan argued that, when Aquarius received the letter of 3 December 2013 it “receiv[ed] notice that the case had been allocated as a Complex case” for the purposes of the Tribunal Rules and the deadline for opting out expired 28 days later.

I do not need to determine whether Ms Nathan’s argument is correct given the findings that I have made at [22].  I will say, however, that I regard the point as debatable. Rule 11(4) of the Tribunal Rules is in mandatory terms: it requires “a person” who receives due notice of a representative’s appointment to send documents to that representative. It is not absolutely clear whether the Tribunal is a “person” who is required to comply with this rule and there are other parts of the Tribunal Rules that make it absolutely clear when rules that the Tribunal must itself follow are set out (see for example Rule 13). However, it would be odd indeed if Rule 11(4) was envisaging that parties had to communicate with representatives whereas the Tribunal was entitled to communicate only with the parties themselves and I doubt that such a practice would contribute to the efficient conduct of litigation. Therefore, I consider it likely that Rule 11(4) does apply to the Tribunal and, if Aquarius Consultants had been validly appointed as a representative, the question would be what consequence should follow if the Tribunal did not comply with that rule. The effect of Ms Nathan’s argument would be that no consequence at all should flow from a failure to send a highly important document to a representative (who might be presumed to be in a good position to realise the importance of that document). Having said that, Mr Smith accepted that Aquarius had received the Tribunal’s letters of 3 December 2013 and it would be odd if the Tribunal Rules had the effect that documents that plainly were received were to be treated as if they were not received. If I had to express a conclusion on this issue (which I do not) I would probably have concluded that, even if Aquarius Consultants had been duly appointed as a representative, the letters of 3 December 2013 were still validly served on Aquarius. However, in such a circumstance, the Tribunal would need to take into account the fact that the letters were not sent to Aquarius’s representative in deciding whether to exercise the discretion to extend time referred to below.

Finally, I note that even if the letters of 3 December 2013 were not properly served on Aquarius, on 3 May 2016 the Tribunal sent Mr Smith, Aquarius’s duly appointed representative, a copy of letters that confirmed the 2013 Appeals were categorised as “complex”. Therefore, on any view, the time limit set out in Rule 10(1)(c)(ii) expired 28 days after Mr Smith received those letters.  Mr Smith only sent his letter purporting to opt-out of the costs-shifting regime on 9 June 2016 therefore, even on Aquarius’s arguments, that opt-out would still be out of time…