UT (Tax & Chancery) UT-2023-000064 - [2024] UKUT 00394 (TCC)

If a proposed amendment falls within the jurisdictional gateway described above because it is part of the subject matter of the reference, the Tribunal has wide case management powers permitting or requiring a party to amend the document: see Rule 5(3) (c) of the Rules. In exercising that power, the Tribunal must have regard to the overriding objective set out in Rule 2 of the Rules. This requires the Tribunal to deal with cases fairly and justly.

Popplewell LJ commented on this case management power at [132] of BlueCrest as follows:

“It is to be noted that the general jurisdiction of the Upper Tribunal may be narrowed in any individual case either by the parties, or by the Upper Tribunal itself exercising its case management powers. It may be narrowed by the firm in framing the issues in its reference notice or reply. It may be narrowed by the FCA in framing its statement of case. It may be narrowed by the Upper Tribunal exercising its powers in Rule 5(3)(c) to require the respondent to amend its statement of case to remove allegations which it would not be in accordance with the overriding objective to permit it to pursue; or the applicant to amend the reply on similar grounds. It was common ground between the parties that this would allow it not merely to refuse amendments as a matter of discretion, but to impose deletions for the same discretionary reasons. By this means the Upper Tribunal's jurisdiction contains a wide discretion to refuse to allow the FCA to pursue allegations in the reference if it would not be fair and just to allow it to do so, notwithstanding that they fell within its gateway jurisdiction of "the matter" referred. Defining the scope of that gateway jurisdiction is not, therefore, the only means of limiting the scope of what the Upper Tribunal may decide upon, or even the primary means of so limiting it: whatever the scope of the gateway jurisdiction, the Upper Tribunal retains the ability to restrict it by reference to what is just and fair in relation to each individual case applying its powers flexibly.”

In BlueCrest the Court of Appeal considered that the Upper Tribunal had exercised its discretion correctly in permitting one particular amendment on the basis of this principle set out at [80] and [81] of its decision in that case ( [2023] UKUT 00140 (TCC)):

“80.

Pursuant to Rule 5(3)(c) of the UT Rules, the Tribunal has power to “permit or require a party to amend a document”, including a party’s statement of case.

81.

The Tribunal must exercise that power: (1) in accordance with the overriding objective (as set out in Rule 2 which includes consideration of what is just and fair); and (2) with regard to the well-established principles that apply to amendments to statements of case under the Civil Procedure Rules. These principles include those explained in Bittar v Financial Conduct Authority [2017] UKUT 0082 (TCC) (“Bittar”) at [53]-[55]:

(1)

that the proposed amendments have real (as opposed to “fanciful”) prospects of success;

(2)

“the timing and circumstances in which the proposed amendments are advanced”;

(3)

“whether there is a good reason why the relevant allegations were not advanced

sooner”; and

(4)

“whether the proposed amendments have been formulated with sufficient clarity and particularity.”