UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

Mr Cherry submitted that there is little ‘ordinary’ about the Authority’s conduct from the perspective of the Applicant. The Applicant’s conduct was under investigation by the Authority from the initial supervisory visit to her premises in 2017. The Authority persists in its refusal to acknowledge that it was investigating the Applicant's conduct prior to it informing her that she was under investigation by it in September 2021. The Authority took seven years to investigate the conduct of the Applicant, four of which occurred before it notified her she was being investigated and then three years once it did.

He argued that during the investigation there have been various other procedural irregularities raised by the Applicant’s legal representatives with the Authority, including matters of particular concern to the current applications and the context of whether publication of the Decision Notices would promote public understanding or create confusion. In this regard the Applicant refers to the Authority’s recent correspondence relating to the issue of the Grant Thornton File Review team members, on which the entirety of the file review process relies, and which feeds the allegations of incompetence against the Applicant. The related failings of the Authority in respect of its approach to disclosure of materials relating to Dr Purdon and the significance of Dr Purdon’s part in the investigation is also relevant and leads to the serious possibility of unsafe outcomes being presented in the Decision Notices.

In relation the Grant Thornton review, Mr Cherry contended that the Authority has provided no update on the issue of conflict checks to the Applicant. This is significant because there is currently no evidence that the basic requirements of ensuring that the Grant Thornton file reviewers were conflict-free nor that the conflict checks were ever done, as the Authority has asserted is the case. In the absence of such checks being evidenced, this calls into question the veracity of the evidence generated because of any file reviews undertaken by Grant Thornton. This point is raised not to be argued or determined in this forum at this time, but as an example of the conduct of the Authority during its investigations and dealings with the Applicant, which exacerbate the mental health impact visited upon her by the Authority.

In addition to this aspect, he submitted that it is evident that the Applicant is convinced of the correctness of her position that the file review process itself was significantly flawed. A key aspect of this belief relates to the view that incorrect criteria were applied in the DBAAT file review process, including requirements that were not in place at the time the Applicant was preparing the advice which is the subject of the file reviews, and which form the basis of a significant proportion of the matters outlined in the Decision Notices.

Mr Cherry accepted that the ultimate finding on that issue is one for the substantive hearing in due course, although the Applicant’s belief in the flawed process is relevant to the Privacy Applications. This is so because it is a contributing factor to the matters described in the Applicant’s Personal Statement (B/21) at [14, 15, and 18] relating to the pride in her work as discussed earlier. This is then connected to the characteristics of the Applicant, in terms of her anxiety, depression and ASD personality traits also discussed earlier. In combination, these issues contribute to her evidence of an adverse mental health impact flowing from publication of the Decision Notices.

He argued that a connected issue then is the involvement of Dr Purdon. The Authority only revealed the existence of Dr Purdon as part of the RDC process. The Authority (despite being in correspondence with Dr Purdon in the months leading up to the RDC Meetings) gave last-second disclosure relating to Dr Purdon on the eve of the Applicant’s RDC meeting. When disclosure was given, it was incomplete and there were exchanges of correspondence between the Authority and the Applicant’s legal representatives on this topic.

Mr Cherry contended that there is a risk of real unfairness to the Applicant by publishing the Decision Notices that goes beyond the mere assertion of disagreement with the findings. At present, the Authority cannot demonstrate that its belief as to the conflict-free nature of the reviews is anything other than a mere assertion that this is the case. The public upon reading the Decision Notices will know that the facts are disputed, but they will not know that there are fundamental issues that go to the very core of the substance of the allegations and whether the Authority has discharged its functions fairly. This makes the publication of the Decision Notices inappropriate. These facts sustain the argument that they are “cogent evidence of how unfairness may arise and how [the Applicant] would suffer a disproportionate level of damage” if publication were not prohibited.

He argued that the disproportionality here is linked to the mental health of the Applicant, in that she knows that these irregularities exist and the strident criticisms of her reached as the result of an apparently flawed process, where those flaws were known and apparent to the Authority had it looked sooner, but where these flaws are unable to be effectively communicated to the public in the event the Decision Notices are published.