UT (Tax & Chancery) UT/2022/000100 and UT/2022/000107 - [2024] UKUT 00156 (TCC)

The Authority has applied to amend (in the case of Mr Burdett to further amend) its Statement of Case in both references. As against Mr Burdett, the main changes are: (a) to introduce an alternative allegation that Mr Burdett failed to act with due skill, care and diligence (which by way of shorthand I refer to as an allegation of negligence), if he is not found to lack integrity; (b) the Authority no longer alleges that Mr Burdett instructed an advisor at Synergy not to consider the suitability of the investments within a client’s SIPP; and (c) the Authority no longer alleges that Mr Burdett misled others at SWUK as to the contents of the Model Portfolios. As against Mr Goodchild, the main changes are: (a) to introduce an alternative allegation that Mr Burdett acted in breach of Statement of Principle 2 (acting with due skill, care and diligence, which again I refer to as negligence by way of shorthand), if he is not found to lack integrity; and (b) the Authority no longer relies on an email dated 26 February 2016, which it previously asserted referred to 50% of the Model Portfolios being invested in a TRG investment. The draft Re-Amended Statement of Case (in Mr Burdett’s case) and draft Amended Statement of Case (in Mr Goodchild’s case) are in the Hearing Bundle with the proposed changes marked in green (in Mr Burdett’s case) and red (in Mr Goodchild’s)

The main proposed amendment in both references is to include an alternative allegation of negligence if either Applicant is not found to have lacked integrity. Both Applicants oppose the proposed amendments.

In relation to this amendment, there are two issues to consider. The first (the “Jurisdiction Issue”) is whether the matter referred in each case includes the alternative allegation. If it does not, then the Authority cannot amend its Statement of Case to include the alternative allegation as it is not part of the matter before the Tribunal. The second issue (the “Discretion Issue”) only arises if the matter referred includes the alternative allegation, and in that case the Discretion Issue is whether the Tribunal should exercise its power under rule 5(3)(c) of the Rules to allow the Authority to amend its Statement of Case.