UT/2023/000084 - [2024] UKUT 00382 (TCC)

Under this ground it is argued that the FTT was wrong to reject an important piece of evidence given by Mr Griffiths about the phone calls. This was as follows:

“1.

18th August 2015 I was out on the road meeting two of our customers, I received a phone call from Jack. He talked through a possible sale that our friend Ritesh had called him about earlier that day. Due to the high turnover, I questioned Jack quite vehemently over his take on its legitimacy and overall security. Jack gave me some confidence by detailing his thoughts, and also Ritesh’s affirmation and assurances.

2.

18th August – 19th August At various times Jack and I went go back and forth over the pros and cons of the potential sale. We eventually came to a mutual agreement to proceed, largely due he faith we had in our friend of 20 years, Ritesh.

3.

At some point over this time, I don’t recall the exact date(s), I also called Ritesh to ask him myself about the sale. The specific details of the call(s) I cannot recollect, however I do know that after the call(s) I felt reassured enough to proceed.”

The FTT said at [244]:

“Finally, we do not find Mr Griffiths’ evidence reliable to the extent that he sought to assert that he had spoken to Patel on a few occasions to reassure himself. He was unable to give any particulars as to what he tried to ascertain with Patel to reassure himself, and his evidence in this respect would seem to be at odds with what HMRC were given to understand during the first two visits as highlighted in Officer Redman’s [sic] witness statement (see §174(1) (Footnote: ⁴)).

Mr Brown made two challenges to the findings in this passage. He first noted that the FTT had stated at [242] that it had no issue with Mr Griffiths’ credibility, and went on to submit that it was therefore wrong of the FTT to find at [244] that his evidence was unreliable.

We agree with Mr Brown that courts and tribunals normally use the term “credibility” in the way described by Lord Pearce in Onassis v Vergottis[1968] 2 Lloyds Rep 403 at p 431:

“Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others?”

As commonly understood, therefore, honesty is one of several elements falling within the overall umbrella term of “credibility”, so a finding that a witness is “credible” includes a finding that he is both honest and reliable.

However, in Phipson on Evidence at 45-17, the learned authors say (our emphasis):

“It is often hard to distinguish between the credibility and reliability of witnesses. That said where there are conflicting accounts of witnesses, the issue of credibility in the sense of honesty may need to be confronted.”

An example of this narrower usage can be seen in Laing O’Rourke v HMRC [2021] UKFTT 211(TC), where Judge Bowler said at [34]-[35]:

“In summary, I found Mr Waller to be a credible witness: he did not dissemble, attempt to obfuscate, or otherwise give any indication of dishonesty [but] [s]ome of the statements in his Witness Statement are inaccurate.”

Reading the FTT’s judgment as a whole, it seems to us that when the FTT said at [242] that it “had no issue with Mr Griffiths’ credibility as a witness” it was considering “the issue of credibility in the sense of honesty”, and taking that approach it found Mr Griffiths to be an honestwitness, ie one who was not seeking to mislead or deliberately give partial or incorrect evidence. We came to that conclusion because the FTT say only two paragraphs later that it did not find parts of his evidence to be “reliable”. It seems to us very unlikely that the FTT would have made that finding had it just used the term “credibility” as encompassing reliability.

Plainly, evidence given by an honest witness can be found to be inaccurate and so unreliable, for instance because of the fallibility of the witness’s memory and/or its inconsistency with contemporaneous documentary evidence.

For the above reason, the FTT made no error of law in finding that Mr Griffiths was both credible (in the sense of honest) and yet not reliable.

Mr Brown also challenged the FTT’s finding that Mr Griffiths was not reliable. He points out that Mr Griffiths was being asked to recall the specifics of a telephone conversation or conversations that had occurred eight years previously.

We share some of the appellant’s reservations about the FTTs’ reasoning here. Mr Griffiths had given honest evidence that (a) the conversations had taken place, and (b) he drew comfort from them. The FTT rejected that evidence as unreliable because Mr Griffiths could not remember the details of the calls. However, it does not necessarily follow from the fact that Mr Griffiths could not remember the detail, that he had given unreliable evidence about the calls having taken place, or about the comfort he drew from them.

The FTT did however provide further justification for its conclusion on reliability: it referred to HMRC Officer Rehman’s visit report, which had noted that Mr Orton did not mention that Mr Griffiths had looked into the deal. That further justification was not challenged by the appellant.

We also rejected Mr Brown’s depiction of Mr Griffiths’ evidence as “an important piece of corroborative evidence” in support of the appellant’s case that Mr Patel had already set up the deals. The fact that conversations took place about a “possible” or “potential” sale, and that Mr Griffiths was reassured by those conversations was equally consistent with Mr Patel having simply introduced ODL and HVT to Beigebell, as the FTT found was the position. Thus, although the FTT’s rejection of Mr Griffiths’ evidence as being unreliable was an error of law, it was not a material error that warrants setting aside the FTT Decision.

We therefore dismiss this ground of appeal.