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

I have concluded that the alternative allegation is not part of the matter referred and so I will refuse the Authority permission to amend its statements of case to include that allegation.

In addition to the principal amendment sought by the Authority, it seeks to amend the two statements of case in some other, more minor regards. I will deal first with the proposed amendments to the statement of case relating to Mr Burdett. Leaving aside minor corrections, the first significant change is at paragraph 57, where the Authority seeks to change its submission that Mr Burdett gave instructions to Mr O’Donovan. Their focus is now on Mr Burdett’s role in establishing the structure, rather than giving detailed instructions to Mr O’Donovan. This change results from new evidence received from Mr Burdett and, Mr Temple submits, the statement of case should reflect the (different and potentially less serious) allegations the Authority now considers it should make. The same points arise in relation to paragraph 63A and 67, which put more focus on Mr Burdett’s role in establishing the overall structure, rather than giving instructions to Mr O’Donovan (who is no longer available as a witness). The Authority has also withdrawn its submission (in paragraphs 100 et seq) that Mr Burdett provided misleading information to others at SWUK and Synergy. Mr Burdett is, understandably, annoyed that the Authority appears to be changing its case and, in particular, that it has started proceedings against him and, at least as far as these points are concerned, has now “watered down” the allegations made against him. Mr Temple’s response to this is to point to the large tracts of the statement of case which remain unamended and to make the points that these amendments are not prejudicial to Mr Burdett and that it makes sense for the statement of case to reflect the position the Authority now adopts in the light of evidence subsequently presented to it.

Turning now to Mr Goodchild’s statement of case, the only change proposed here (beyond those consequential on the introduction of the alternative allegation) is to remove the Authority’s reference to an email which the Authority now accepts relates to a different pension scheme not under consideration here. I can see no prejudice to Mr Goodchild in removing this paragraph.

So, whilst I can understand Mr Burdett’s exasperation, I consider that neither Applicant is adversely affected (indeed to some extent they are assisted) by the Authority’s proposed changes, which result from a consideration by the Authority of material subsequently provided to it, and accordingly I give permission for the Authority to amend (in Mr Burdett’s case further amend) its statements of case to that extent.

Finally, I should consider Mr Temple’s suggestion that, if I consider myself bound to conclude that I should not allow the statements of case to be amended on the basis that the Tribunal does not have jurisdiction to admit the alternative allegation, I should consider adjourning consideration of this question until the Court of Appeal has given its decision in the Authority’s appeal in Bluecrest.

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I have decided that the way forward which is most consistent with the overriding objective would be to refuse the Authority permission to amend its statements of case to introduce the alternative allegation of lack of due skill and care at this time, but to give it permission to renew that application at any time no later than three months before the first scheduled day of the substantive hearing if at that time the Court of Appeal has given its judgment in Bluecrest and it has become clear that that decision will not be the subject of an appeal. (I have selected a period of three months to allow a month to consider the Authority’s application and two months for the Applicants to prepare for the substantive hearing in light of the amended statements of case if the Authority is allowed to make the amendments it seeks.)

In the Schedule to this decision notice, I set out directions for the future conduct of the references up to the substantive hearing. These were largely uncontentious.

In conclusion, for the reasons set out above:

The substantive hearing of the references shall be listed commencing on, or as soon as possible after, 6 January 2025 with a time estimate of up to 8 days.

Each party shall be deemed to admit the authenticity of a document referred to on the lists of documents unless he or it serves a notice on the relevant party that he or it wishes the document to be proved at trial. A notice to prove a document must be served not later than 28 days after receipt of a list or 19 April 2024, whichever is later. If thereafter further documents are added to the lists of documents, an appropriate deadline for any further notice to prove a document shall be agreed.

The Applicants and the Authority shall serve and file with the Tribunal the statements of all witnesses upon whom they intend to rely by 21 June 2024.

If a party considers that there are additional persons (“Potential Witnesses”) whose evidence would assist the Tribunal, he/it must notify the other parties and the Tribunal by 12 July 2024 and the Tribunal will convene a case management conference to consider whether any further directions should be made in relation to the Potential Witnesses.

Each party shall serve and file with the Tribunal any supplemental witness statements in response to the statements served pursuant to paragraph 3 above by 13 September 2024.

The parties may not (unless otherwise directed) call a witness unless a signed written statement of the evidence of that witness has been served in accordance with paragraphs 3 and 5.

The witness statements served in accordance with paragraphs 3 and 5 shall stand as evidence in chief.

Each party shall confirm by no later than 4 weeks prior to the substantive hearing the identity of those witnesses whose witness statements have been served in accordance with these Directions and whose attendance is required for the purpose of cross examination.

The parties have permission to rely on expert evidence in relation to the risks, and risk level, of the TRG Investments and Model Portfolios (as defined in the Authority’s Statements of Case). Such evidence shall be exchanged as follows:

Should the Applicants make an application for any disclosure accompanied by detailed written reasons, the Authority must respond in writing 14 days thereafter.

If the Applicants remain of the view that they consider an oral hearing is needed in relation to disclosure, they should specify this in their application. Determination of any disputed disclosure application for which the Applicants seek a hearing is to be listed for half a day for the first available and convenient date after receipt of all written submissions on the issue.

Each party shall provide to the Tribunal an updated time estimate for the trial by 13 December 2024.

The Authority shall prepare and serve the Applicants with a paginated draft electronic hearing bundle index no later than 8 weeks before the first day of the substantive hearing.

The Applicants shall reply to the Authority in respect of the draft hearing bundle index no later than 6 weeks before the first day of the substantive hearing.

The parties shall agree a final paginated electronic hearing bundle index no later than 4 weeks before the first day of the substantive hearing including any additional documents upon which any of the parties rely.

No later than 1 week before the first day of the substantive hearing, the Authority shall prepare and provide to the Applicants and the Tribunal the final paginated electronic hearing bundle.

The Authority shall serve on each Applicant a written skeleton argument (including a suggested reading list for the Tribunal) no later than 10 clear days prior to the substantive hearing.

Each Applicant shall serve on the Authority and the other Applicant a written skeleton argument (including a suggested reading list for the Tribunal) no later than 5 clear days prior to the substantive hearing.

No later than 2 clear days prior to the substantive hearing, the Authority shall prepare and provide to the Applicants and the Tribunal a paginated electronic authorities bundle containing copies of all legislation and authorities referred to by the parties in their skeleton arguments.

If the Tribunal notifies the parties on or before 2 clear days prior to the substantive hearing, by no later than 5 pm on 1 clear day prior to the substantive hearing, the Authority shall provide to the Tribunal by email an electronic copy of a Core Bundle which shall comprise, unless otherwise directed:

If the Tribunal notifies the parties that it will in addition to the electronic hearing and authorities bundles, require a hard copy of the Core Bundle and / or the hearing bundle and/or the authorities bundle, the Authority shall place in court no later than 9.30am on the first day of the hearing such number of copies of the hearing bundle and the Core Bundle, and the bundle of authorities as the Tribunal shall notify is required.

There be liberty to all parties to apply to vary or for further directions.