UT/2024/000060 - [2024] UKUT 00315 (TCC)

A fundamental point the claimant now raises, following production of Ms Murphy’s witness statement in the weeks preceding this disclosure hearing, are the inconsistencies between that and the terms of the 5 January 2024 letter. Looking at the statement and the terms of the letter I agree that Mr Firth is right to identify the difficulties that he does in in relation to a factual awareness test being adopted and whether the alternative condition in paragraph 10 was considered. I should emphasise that I make no findings of fact on what is said in the evidence but simply observe the inconsistencies Mr Firth raises as between the statement and letter are ones which are ones which are apparent from the face of those of two documents.

Mr Firth then argues it is sufficient that the apparent inconsistencies undermine the premise that the 5 January 2024 letter is a full record of the decision and that therefore and order for the disclosure sought is appropriate. It is suggested that this must follow as a matter of law. In support, Mr Firth relies on the discussion in Tweed (at [56]) which explained that while previous case-law had required it to be shown that there was an inconsistency, contradiction or incompleteness in the public authority’s evidence before disclosure will be ordered, the time had come to do away with that and apply “a more flexible and less prescriptive principle”. Mr Firth argues that ex hypothesi disclosure should be ordered if it can be shown the decision letter is inadequate or incorrect. I do not agree that necessarily follows. As made clear in the remainder of the extract relied on in Tweed, applying the “flexible and less prescriptive principle” meant “leaving the judge to decide upon the need for disclosure depending on the facts of each individual case.” That does not suggest any automatic order for disclosure where inconsistencies were shown but reinforces the fact sensitive nature of the question of whether disclosure is necessary for the fair and just resolution of the matter in question. The fact there is an inconsistency would not remove the need to explain, why in the light of any inconsistency the disclosure sought would be necessary. It must also be recognised that, here, the statement on which it is said the decision is incomplete is one which the claimant has indicated it has concerns over and one which HMRC acknowledge is not admissible as regards the reasoning for HMRC’s decision. Those circumstances are not ones which suggest to me disclosure should be ordered without further inquiry into whether the particular disclosure sought is necessary to resolve matters fairly and justly.That will require identification of the matter in question and analysis of what is in issue between parties as revealed by the parties’ respective positions on the judicial review grounds (detailed above).