UT/2024/000117 - [2024] UKUT 00435 (TCC)

It is common ground that the delay here was serious and significant. It is accepted the FTT’s permission decision was sent to Mr Eveleigh and it can be inferred from the contents of the e-mail of 31 August 2024 which he sent to HMRC (detailed in the paragraph below) that he had been sent it by at least that date. On the basis the decision was sent some time between 27 July 2023 and 31 August 2023, the latest date for filing with the UT would have been 30 September 2023. The notice was not filed until just over 11 months later on 13 September 2024.

The limited set of e-mail exchanges that took place in relation to the appeal as referred to me by the parties is set out below. From the further correspondence which took place subsequent to the FTTs’ grant of permission detailed below it can be inferred that some time in late July, or during August 2023, Mr Eveleigh had a telephone conversation with an HMRC official working in HMRC’s debt management operation in relation to the assessment. On 31 August 2023 Mr Eveleigh e-mailed the official explaining:

“…Following up our recent telephone conversation, I was advised by my solicitor that the case is still open due to my appeal against the decision which has been accepted and is now going to the upper tier tribunal.”

The following year, on 20 June 2024, HMRC debt management e-mailed Mr Eveleigh asking:

“Can you please contact HMRC on [telephone number] to discuss you [sic] outstanding liability and potential appeal? Please contact us by 24/06/24 to prevent further enforcement?”

Mr Eveleigh responded on 19 July 2024 saying he had tried to telephone HMRC but was always put on hold; he confirmed:

“Yes I have been contact with my barrister Harriet Brown. She is contacting the tribunal for the next step…I will be in contact the minute I hear from Harriet Brown.”

The notice of appeal form was then filed with the UT on 13 September 2024.

The principal reason advanced on behalf of Mr Eveleigh, for the delay is that the FTT did not copy Ms Brown in and that the FTT should have done as it was clearly aware Mr Eveleigh was being represented pro bono). (Ms Brown and Ms Sheldon set out in their skeleton that they did not recollect (either from memory or from searching their records) having been made aware of the grant of permission decision. It was explained they did not have instructions to follow up on the permission application to the FTT that counsel had drafted; Ms Brown indicated at the hearing their instructions were on an “aspect by aspect” basis).

It is further argued that although Mr Eveleigh had received the document and guidance explaining the need to notify his appeal, his e-mail of 31 August 2023 indicated he had clearly misunderstood that notification requirement. Ms Brown highlights the FTT had previously identified Mr Eveleigh as requiring assistance to present his case and also referred to the FTT’s finding that he was vulnerable (the FTT had noted at [21] of its decision that “at the time of the offence, for reasons that do not have to be articulated here, the appellant was vulnerable and was “used” by the owner of the tobacco”).

In relation to the argument that the FTT ought to have sent the permission grant to Ms Brown, I raised with the parties at the hearing the provisions of Rule 11(2) of the FTT Rules (Footnote: ²) pursuant to which a legal representative, if a party has appointed one, must send or deliver to the Tribunal and to each other party to the proceedings written notice of the representative’s name and address. Under Rule 11(4) a person who received such notice:

“(a)

must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and

(b)

may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.”

Accordingly, if the FTT had received notification Ms Brown was Mr Eveleigh’s legal representative then by the application of Rule 11(4)(a), or else by analogy with the obligation it imposes on persons, the FTT ought to have sent Ms Brown, as the legal representative on record, a copy of the FTT permission decision (which was required to be sent to the parties under Rule 40(3) of the FTT Rules). In the absence of documentary evidence, and given Ms Brown, as counsel, was not giving oral evidence on what had been filed, I do not make a finding that a notification was filed.

Ms Brown referred to the fact the FTT Decision and its grant of permission decision mentioned multiple times that Mr Eveleigh was represented pro bono at the substantive FTT hearing. Although Ms Brown’s submissions did not venture this far, for the sake of completeness I rule out those mentions could be taken to indicate there had been due notification. Rule 11(5) provides that “At a hearing a party may be accompanied by another person who, with the permission of the Tribunal, may act as a representative or otherwise assist in presenting the party's case at the hearing.” The fact a party is represented by another person at a hearing does not necessarily mean that person is appointed as their representative, legal or otherwise, for Rule 11(4) purposes.

Returning to Ms Brown’s original point (made without reliance on Rule 11) she argues that the FTT ought, given the mention of counsel’s pro bono representation in the FTT’s decisions, to have sent the grant of permission decision to her. I do not agree such omission represented a failure on the FTT’s part. The fact Rule 11 sets up a clear process for representatives coming on and off record, and distinguishes that from situations where a person, who is otherwise unrepresented, can be represented at the hearing, reflects a purpose of the rules in establishing a system which is administratively workable. That envisages the receipt of clear written forms of authorisation, not examination of the content of the FTT’s decisions to see who is referred to there and in what capacity. This is so that the FTT administration and other parties can straightforwardly determine who to send documents to, who to expect receipt of them from, and for parties and representatives to similarly know where the lines of communication with the FTT and other parties will lie. Without such due specific appointment as representative under Rule 11(4) (and as already mentioned attending as someone’s representative at the hearing would not in itself constitute such wider appointment) I cannot see what basis the FTT was obliged to send Mr Eveleigh’s grant of permission decision to someone not on record.

The other element advanced by way of explanation for the delay concerns Mr Eveleigh’s lack of understanding of the requirement to file the notice. Ms Brown argues that the fact Mr Eveleigh’s 31 August 2023 email set out that he believed the case was proceeding (despite it not having been notified it to the UT) demonstrates his confusion. She also argues that he clearly had not understood the requirement to file within one month.

As Mr Davies, appearing for HMRC, points out, there is no oral evidence from Mr Eveleigh to help us on his understanding at the time. Nor is there is any evidence to throw light on the solicitor Mr Eveleigh referred to having received advice from. Irrespective of any advice received there is nothing to suggest that such solicitor notified the FTT or the UT that they represented Mr Eveleigh or make any filing on his behalf. However, taking the contents of the 31 August 2023 e-mail as they stand, those are consistent with Mr Eveleigh believing an appeal was proceeding to the UT and believing also that there was nothing that needed to be done in respect of notifying the appeal to the UT on his part.

As mentioned above Ms Brown also relied on two other matters as being relevant to Mr Eveleigh’s lack of understanding of the process. The FTT previously identified that Mr Eveleigh required assistance (at the time of the strike out hearing). It also later referred to his vulnerability in its substantive decision. Neither point however assists in establishing facts that throw any material light on his lack of understanding during the period relevant to the delay under consideration. As Mr Davies pointed out, the FTT’s encouragement to seek pro bono legal representation reflected that the arguments identified by the FTT principally concerned issues which required an understanding of the law. The finding of vulnerability was made in relation to the time of the offence i.e. in June 2017. Mr Davies also rightly points out that no evidence has been provided linking the vulnerability mentioned that was in regard to the circumstances concerning the seizure and Mr Eveleigh’s capacity to conduct his appeal during the relevant period of delay from July/August 2023 to September 2024.