[2024] UKUT 00436 (TCC)

In the conclusion to his speaking note and in his oral submissions the Applicant also concentrated upon fresh evidence that he sought to admit in support of his appeal to the UT accepting that it was evidence which he had not provided to the FTT. The fresh evidence consisted of short statements or letters to the effect that the Applicant had only worked at the New Tyke Inn between 2008 and 2011 and not thereafter.

The fresh evidence he sought to rely upon (which I requested him to email during the hearing as it was not provided in advance) consisted of three statements from three witnesses whom the Applicant described as independent as they were not from friends or family. They consisted of one handwritten statement (Michael Simmon dated 15 December 2024) and two typed statements (Gordon Lamonby and Ryan Blyth both dated 12 December 2024). The describe the Applicant not being seen in the pub outside the 2008-2011 time period despite their frequently the pub before, during and after these times. The statements are not professionally prepared and the wording of the statement of truth is not one that is in line with the standard wording in civil proceedings. Nonetheless that does not render them inadmissible as they may be admissible pursuant to Rules 2 and 15 of the FTT or UT procedural rules. However, it may undermine their cogency.

The Applicant also referred during the hearing to further statements from friends and family which he had previously obtained but had not sought to provide to the UT because they were not from ‘independent’ witnesses so he had been advised they would be given less weight by the UT.

I nonetheless permitted him to provide the statements from friends and family that he also after the hearing. This he did as attachments to further emails sent after the hearing on 16 December 2024. There were handwritten or typed letters or statements from: Christopher Hague (brother, undated), stating he would be willing to give oral evidence as a witness; Paul Hague (uncle and owner of the pub) dated 7 May 2024, Brian Hague (father) dated 3 May 2024, Rebecca Hague (relative) undated, Albert Muff (uncle) dated 1 May 2024 and Michael Simmon (referring to May 2024, who subsequently provided the December statement). These letters or statements give written evidence on the same topic as the three ‘independent’ witnesses– the Applicant only working at the New Tyke Inn pub between 2008 and 2011. These witnesses (the statement makers or letter writers) variously described the family dispute resulting in the Applicant not working in the pub after 2011.

. I take into account the tests for admitting fresh evidence set out in Ladd v Marshall [1954] 1 WLR 1489 as explained as applying to the UT in Donald Graham Ketley v Revenue and Customs [2021] UKUT 218 (‘Ketley’) at [52]-[54] but ultimately must apply the tests under Rules 2 and 15 of the Tribunal Procedure Rules to decide if it is just and fair to admit the new evidence. I reject the application to admit the fresh evidence. I have decided that it is not just and fair nor in the interests of justice to admit any of the fresh evidence for the following reasons.

First, the application to admit fresh evidence before the UT was made on the day of the hearing before me on 16 December 2024. The evidence itself could and should have been obtained reasonably at an earlier time. The FTT’s decision was handed down in February 2024. If the Applicant wanted to challenge the FTT’s findings by way of admitting fresh evidence it should reasonably have obtained these statements at an earlier time. It is noteworthy that he did not even provide them to the FTT on his application for permission to appeal to the UT, or to me on the earlier application made on the papers in October 2024. They are only provided at the last moment. There is substantial delay in obtaining and serving all these statements. The application to admit and rely upon the fresh evidence could and reasonably should have been made at an earlier time – at least in May 2024 at a time when the Applicant said he had instructed lawyers (whom he subsequently dispensed with) and obtained the statements from family and friends.

Second, I reject the explanation for why the evidence was not provided to the FTT in time for the hearing itself and why they were not part of the FTT proceedings. The Applicant suggests that the main issue in the appeal was whether his winnings were from gambling and he did not know in advance of the FTT hearing that it would be in issue that he was only working between 2008 and 2011 at the pub. Hence he did not previously seek to provide any of this evidence.

I am satisfied that the evidence should have been reasonably available to the Applicant before the FTT hearing as the evidence could and should reasonably have been obtained and served at an earlier time.

I reject this explanation because the Applicant should reasonably have known that it was in issue whether the assessed income was his taxable earnings were from the pub (as HMRC had suggested) or non taxable income from gambling and loan repayments (as he suggested). The burden was upon the Applicant to prove the assessed income, the unexplained credits, were not taxable. If he wanted to establish that none of his earnings were from the pub after 2011 because he did not work there then he should have placed this evidence before the FTT. It was clear from the HMRC correspondence that they assessed him on the basis the income was taxable earnings. HMRC asserted that he had received undisclosed earnings and income from the pub between 2007 and 2016. The Applicant should have known that the duration of his work and extent of his earnings from working at the pub was highly relevant evidence. Indeed Mr Lorriman raised the assertion that the Applicant only worked there between 2008 and 2011 in correspondence with HMRC in 2020 as part of the enquiry / assessment process.

Furthermore, I am satisfied the Applicant knew it was a relevant issue on which he could have called or provided evidence in support. He himself gave this very evidence in the appeal to the FTT: that he was only working at the pub between 2008 and 2011(as set out in various parts of the Decision including [36(1)]). He should reasonably have known that if this was a relevant part of his case that he should provide evidence in support of this from other sources if it was available to him. He could reasonably have approached all these witnesses at an earlier time and does not suggest they were unavailable to him.

Third, I am not satisfied that the evidence is so cogent or reliable that it would have a significant impact on the appeal to the FTT or UT. First, is the form in which the statements are produced is set out above – they are either letters or if they are statements, they do not contain formal statements of truth and they are mostly from family members. While the Applicant is no longer legally advised or represented, although assisted by Mr Lorriman, the statements could reasonably have been accompanied by formal statements of truth. Very few of the witnesses suggest that they are available for cross examination or to give oral evidence (in which case the written evidence, while admissible, would be afforded less weight). Second the contents of those witnesses who are said to be independent and not family members, are based upon some observations of those who attend the pub at relevant times. None of the independent witnesses suggest that they were in the pub on all days during the relevant period from 2011 to 2016. Third, the evidence relies upon memories of events taking place some 13 to 16 year before the letters / statements were written. There is no cotemporaneous documentary evidence provided in support. Again, this reduces its potential weight. I am satisfied, that even if it were to be admitted, the evidence would not significantly undermine the factual finding that the Applicant was likely to have received taxable earnings for working in the pub from 2007 onwards and in particular from, 2011-2016.

For the same reasons, I likewise refuse to admit the written evidence of the Applicant contained in the Speaking note in relation to the further facts he relies on. Not only have I found that he was not unfairly prevented from raising this evidence before the FTT, but he could and reasonably should have put this in a written statement to the FTT if he wanted to rely upon it.

In light of refusing to admit this evidence, I reject this ground as unarguable.

The first of the grounds of appeal set out in the conclusion to the speaking note challenges the FTT’s factual findings and treatment of written evidence by suggesting that the FTT failed to give sufficient weight to the template letters and third party witnesses. I reject this as not raising an arguable error of law in the FTT’s findings of fact. I had addressed the position of the third party witnesses above. Matters concerning the weight to be given to evidence are for the FTT to determine and it gave reasons within the Decision for explaining why it found this written evidence not to be of assistance or reliable.

I reject the second ground in the conclusion to the speaking note for the reasons set out above. The FTT was entitled to reject the Applicant’s case on the facts for the reasons it gave – it did not apply assumptions but found that the Applicant to discharge his burden of proof to establish that the unexplained credits were not taxable.

I also reject the third and fourth grounds in the conclusion to the speaking note for the same reasons as rejecting the application to admit fresh evidence.

In relation to the fifth grounds in the conclusion, I am satisfied there was no procedural unfairness relating to the bundles or other evidence before the FTT.

I reject this ground as unarguable for the reasons set out above. All relevant evidence was before the FTT as was available to the Applicant throughout the hearing so there was no arguable procedural unfairness. To the extent that the meeting notes or interview notes were said to be unreliable, the Applicant had the opportunity to give evidence and make submissions about these during the hearing. The FTT was entitled to find the written evidence on behalf of HMRC to be reliable as well as finding the Applicant’s evidence to be unreliable for the reasons it gave in the Decision. Findings of fact and the weight to be given to evidence are matters for the FTT and do not give rise to arguable errors of law as is explained above.