[2025] UKUT 00031 (TCC)

The challenged findings refer to the following:

Laurence Supply argues the FTT was wrong to find as it did because all the handbags in the report of Professor Bush (the appellant’s expert) were in fact at the FTT, but the judge had refused to allow them as evidence, even though the appellant was previously directed by the FTT to bring them to the hearing.

In response to the points made in my refusal on the papers that the allegation above was unevidenced, Laurence Supply provided a witness statement from Mr Mark Gordon. This attached the FTT direction requiring the exhibits to be brought and set out Mr Gordon’s account of what happened; in summary that he brought the samples in as directed but the appellant and HMRC refused to let him show them.

Mr Brown submitted that Mr Gordon, as a litigant in person expected to be able to show the samples and tell the tribunal the link between those bags and the C18 imports (he accepted this was not covered in the written witness statements that were before the FTT). Mr Brown said in oral reply that on instructions that Mr Laurence Gordon recollected during the applicant’s opening attempting to show the judge the samples that had been brought to the tribunal but that the judge refusing saying something one the lines of “You cant show those” with which HMRC agreed. No note was taken of the hearing and the applicant had not asked for the tribunal panel’s notes. (As mentioned above this ground was not raised with the FTT when permission was sought before it so the FTT has not had the opportunity to provide its account of what happened.)

While HMRC challenge the above account, Ms Vicary, who as mentioned did appear for HMRC below, made clear she was not giving evidence. HMRC’s overall submission was that when Laurence Supply’s account was put in the surrounding context it did not help the applicant to establish any arguable error of law on the part of the FTT. That context was that the only item HMRC considered relevant to the imported goods (i.e. the imports from China between 6 May 2014 and 4 May 2017 on the C18) was Item C which its officer had uplifted on her 1 February 2017 visit to the applicant’s premises. HMRC was satisfied, having had the chance to examine it before the hearing, that Item C corresponded to the item C referred to the sample exhibited with Professor Bush’s report. As HMRC had not uplifted any other items there was no similar issue of correspondence between items accepted to be representative of the C18 imports and the samples exhibited to Professor Bush’s report. The other samples that had been exhibited were therefore not relevant.

Taking Mr Mark Gordon’s account and Mr Laurence Gordon’s account at face value the FTT had directed the exhibits to Professor Bush’s report were to be brought to tribunal (which they were) but that the FTT did not allow them to be looked at.

It is in my view possible however to read the paragraph references to sample unavailability as speaking to the evidence that was before the tribunal in the sense of evidence that was adjudged to be relevant to the scope of the case. In other words the FTT was referring not to what had physically been brought to the tribunal but what the FTT to be considered to be within the scope of the appeal as argued for by the parties. That is also consistent with Laurence Supply’s argument in its latest application (that the purchase orders were not adduced before - because the focus on Item C). I will address the further point as to whether any error arose in the FTT not looking at the case more widely than Item C given Laurence Supply’s lack of representation the hearing below.

However, even if it were to assumed that the FTT was referring to what samples were physically available to the tribunal (and therefore that the FTT wrongly according to Laurence Supply’s account recorded the non-availability of such samples) this would not ultimately help the applicant succeed in its appeal. In particular it would not address the gap the FTT identified in showing the make up of the goods which were within the C18. That gap would remain even if the FTT considered the other samples had been made available to the FTT given the lack of evidence showing the exhibit samples were in fact representative of the goods encompassed by the C18. To the extent Mr Brown submits that Mr Gordon would have covered that in his oral evidence if given the chance then I do not think that would provide an answer. Even to the extent the applicant’s case was that its other goods were similar to Item C (the sample that was before the FTT, and in respect of which the applicant sought to show the leatherette in such other goods were typical of Item C by means of photographic evidence) the applicant was unsuccessful in persuading the FTT that those were the same as or made from the same material as Item C for all the reasons it set out at [79].

Nor would the River Island purchase orders, now sought to be adduced assist in this regard. As Ms Vicary identified they do not help on the “naked eye” test and it has not been established the orders link to the imported goods referred to on the C18.