[2024] UKUT 00321 (TCC)

In the case of Martland it was decided that a balancing exercise needs to be carried out which assesses the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission; recognises the particular importance of the need for litigation to be conducted efficiently and at proportionate cost and for statutory time limits to be respected; and has regard to any obvious strength or weakness of the case.

Given that the delay in appealing was found by the FTT to be serious and significant and there were no good reasons found to have existed for that delay, the obvious merits of the case would need to be substantial to outweigh the other elements in the balancing exercise. Whether that very substantial categorisation should be identified as “compelling” or by some other term, the sense was correctly conveyed by the FTT that the obvious merits of the Applicant’s case would have to be significantly more than the “just arguable” level suggested by the Application.

At the hearing before me the Applicant sought to argue that the delay was not as substantial as the FTT had found it to be. However, the Applicant failed to address the findings of fact made by the FTT as to what correspondence was sent to him and when. The Applicant has not identified evidence which the FTT failed to consider or any other basis to challenge the findings made by the FTT. At the hearing he also said that he had received correspondence from HMRC via the Lithuanian authorities in December 2019 and then directly from HMRC in April 2020, although these dates were not in the evidence before the FTT. However, the FTT considered the possibility that the delay was in fact from January 2021 and found that the delay between from that date until the submission of the appeal in August 2021 was still serious and substantial and without any explanation. The Applicant’s evidence at the hearing before me that he had received a letter from HMRC in April 2020 therefore does not call into question those conclusions of the FTT.

Accordingly, I refuse permission to appeal on the basis of Ground 2 or on the basis that the FTT’s finding regarding the seriousness of the delay was wrong.