UT/2024/000008 - [2025] UKUT 00100 (TCC)

The evidence before the FTT included witness evidence of Mr Joshua Ryan, who had been Bolt’s UK and Ireland Country Manager since March 2022. The FTT found Mr Ryan to be a “straightforward and credible witness” and took his evidence into account in its findings of fact. The FTT made the following specific findings based on Mr Ryan’s evidence (at FTT [92]):

There was a dispute about the status of Mr Ryan’s evidence, or at least part of it. We will decide the dispute. For reasons we give below, we do not in the end think it is very important, but the issues canvassed in relation to it shine a light on the substance of the appeal, for reasons also given below.

At FTT [95], the FTT referred to its decision to exclude certain materials produced by HMRC about the nature of services that certain putative tour operators or travel agents provided to their customers and certain “similar evidence” produced by Bolt.

There is no dispute that the FTT excluded HMRC’s schedule on the basis stated. Bolt had also put in a similar schedule (once again, not supported by a witness statement). There is no dispute that that, too, was excluded by the FTT. However, HMRC submitted that the FTT’s decision went further, and also excluded Mr Ryan’s witness statement, at least in part, on the basis that that was also “any similar evidence produced by Bolt”; similar, HMRC submitted, in that it concerned services provided by putative tour operators or travel agents in the UK.

The argument over this before the FTT was short and Judge Sinfield simply stated his decision in the course of discussions with Counsel. FTT [95] was only included in the FTT Decision at HMRC’s request after sight of the draft of the decision, with Bolt unsuccessfully arguing that it should not be included because it went beyond a mere typographical correction. We think it was unobjectionable, and certainly reasonable and normal, for the FTT to include, following a comment on the draft, a point which it had in fact decided but had not initially included in the FTT Decision.

We were taken to the two passages of the transcript of the argument before the FTT where this issue was canvassed. In our view, it is clear that Judge Sinfield excluded the parties’ schedules which were not supported by a witness statement because of that lack of support and because, as a result, they could not be tested. The evidence of Mr Ryan (including the exhibits to his witness statement) was clearly in a different category because it was supported by a witness statement. It would be a very different matter to exclude such evidence, not least because a decision to do so would need to be clear about what was being excluded, and plainly much of Mr Ryan’s evidence was not excluded, because Judge Sinfield referred to and relied on it in the FTT Decision.

We accept that in the second transcript passage to which we were referred (page 358 to 359) Judge Sinfield expressed reservations about an exhibit to Mr Ryan’s statement and the weight to be given to it, but that is not the same as excluding it.

We conclude that the parties’ respective schedules were excluded by the FTT, but Mr Ryan’s evidence (including the exhibits) was not. We do so on the basis that that is what FTT [95], construed in the context of the oral arguments, means.

The main reason this might matter is because Bolt relies significantly on an exhibit to Mr Ryan’s witness statement (JR28) showing that a number of travel agents (Corporate Travel Services, Baldwins Travel, Hays Travel) provide cars, transfers, business taxis, chauffeur services and the like. This evidence is arguably relevant to the question of the comparability of Bolt’s services to those of travel agents and tour operators. We address that question later in this decision notice.