[2025] UKUT 00377 (TCC)

I refuse permission to appeal in respect of this ground of appeal as it holds no realistic prospects of success and does not raise any arguably material error of law in the FTT’s Decision.

It was recorded by the FTT in the Decision that the Applicant was living in South Africa and could not travel to the United Kingdom to attend the hearing in January 2025 in person. At [(2)] of the Decision, the FTT explained that prior to late 2024 the Tribunal: “was unable to take evidence from a witness in South Africa remotely (either by video or telephone hearing).” In light of that restriction, the FTT had issued earlier directions for a decision on the papers (on 29 February 2024). Those directions provided for written questions to be exchanged between the parties in lieu of cross-examination, and for the exchange of position statements and skeleton arguments.

The FCDO guidance later changed, permitting individuals to give evidence from South Africa by videolink in UK administrative tribunals. On 12 December 2024 the FTT wrote to the Applicant offering him the opportunity to request a video hearing instead of a paper hearing in the following terms:

“…In view of this change it is appropriate to reappraise whether it is in the interests of

justice that this appeal be formally listed to be heard by way of a video hearing rather

than determined on the papers. Given that Judge Brown proposed to begin

consideration of the papers on 2 January 2025 the parties are now directed to

indicate no later than 5pm on 16 December 2024 with reasons their preference for

the forum of the hearing. A video hearing would facilitate cross examination of

witnesses and the ability to orally present legal arguments with greater judicial

exploration and engagement as appropriate; however, a video hearing would require

all parties to have a stable internet signal for the duration of the listed hearing and

will delay final determination of the appeal. If the parties agree that a video haring is

appropriate the Tribunal will issue directions for its listing. If they are agreed, that the

appeal be determined on the papers Judge Brown will proceed to begin

consideration of the papers already submitted (no further papers will be admitted

whether the hearing is on the papers or by video). Should the parties disagree Judge Brown will determine the most appropriate forum by reference to the representations of the parties and communicate her decision in that regard before 2 January 2025….”

On 16 December 2024 the Applicant replied by email including the following:

“…I did have a hearing several years ago. The Judge at the time could not hear me and would not allow me to question HMRC, and the hearing was ended after a few minutes. In 2022, it was agreed to have a further video conference hearing with family members present and Judge Sinfield presiding. The hearing was cancelled again at the last minute on the advice of the Home Office. The investigation has been ongoing since March 2016, nearly nine years ago, with HMRC deliberately changing investigators, delaying and wasting time to ensure maximum cost, resulting in injustice and witnesses not being available.

I am happy to proceed with paperwork or some form of mobile connection, as we do not have stable internet service in our area. The key witness, my brother Mohamed, is incapacitated, in his eighties, and hard of hearing from Covid. The bank Irish Nationwide took instructions from him (bundle evidence). The British justice system provides no access to justice or proper counsel representation to the unrepresented in this complex case. I see no merit in questioning Mr. Gareth Leese, the fourth HMRC investigator who has a biased agenda, questions directed to him not relevant, and is trained to lie and misrepresent Tribunals by escalating cases and making untrue statements to Judges knowing old bank statements from twenty-five years ago are impossible to defend…”

[emphasis added]

On 17 December 2024 the FTT responded to the Applicant including the following:

“The Tribunal acknowledges receipt of the parties’ responses regarding forum of the

hearing following the change in position from the Foreign, Commonwealth and

Development Office.

In view of the responses received Judge Brown KC has decided that the matter is

best determined on the papers. It appears a video hearing remains impossible

because of internet signal and a telephone hearing would not be in the interests of

justice. As HMRC note that matter has been prepared to facilitate a paper determination.”

On 29 December 2024 the Applicant responded to the FTT as follows:

“I refer to the Tribunal's directions dated 17th December 2024. I am available at all times on 0027 … … … to clarify matters relating to my former business. I have not been able to reach my bookkeeper, Mrs. Anne Shulak. The business accounts were reconciled by her and audited by the accountants from the beginning until closure. We have always submitted and paid the correct taxes yearly with truth and honesty. I have lost everything and suffered greatly as a result of the investigation.”

The FTT determined the appeal on the papers after refusing the Appellant’s alternative offer of a telephone hearing, stating at [(3)] of the Decision:

“Although taking evidence virtually from South Africa is now permitted, the Appellant confirmed that a video hearing was unlikely to be achieved as a consequence of instability of internet connection. The parties indicated that they remained content that the matter be determined on the papers. The Appellant offered the alternative that the appeal be heard by telephone hearing and/or that I telephone him in order to clarify any uncertainties in the papers. I do not consider it in accordance with the overriding objective to conduct the matter by way of telephone hearing due to the length of the hearing and the volume of papers to be considered.I also note that it would be totally inappropriate for me to call one party (absent the other) to clarify any points of uncertainty as all communication between the Tribunal and the parties would need to be open to the other party. In any event there was no matter on which I required any additional information in coming to my conclusions.”

The FTT stated further at [26] of the Decision that it had a bundle of 3,929 pages, including: “a witness statement from Officer Leese, the statement of facts prepared by the Appellant, their respective position papers and the questions and answers provided in lieu of cross-examination.” She confirmed that she had “looked at every page in the bundle” and “read thoroughly all those to which either party specifically referred.”

At [28] the FTT added: “I have the benefit of the questions put and answered by both sides, but it is not a comparable substitute to live cross examination which is responsive and dynamic.”

I do not accept that the FTT arguably erred in proceeding to a paper determination without conducting an oral hearing by telephone.

The FTT made a case management decision and I would not interfere with it unless it was arguably wrong or in error of law – a high threshold. The FTT’s decision to determine an appeal without a hearing is an exercise of the FTT’s case management discretion. In Broughton v Kop Football (Cayman) Limited and others [2012] EWCA Civ 1743 at [51], Lewison LJ explained:

“…The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into

account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge.

The question is whether the judge's decision was wrong in the sense that I have explained.”

Under Rule 29(1)(a) & (b), the Tribunal may proceed to decide an appeal without a hearing only if each party has consented and “the Tribunal considers that it is able to decide the matter without a hearing.”

Ms Duncan submits that while the Applicant did not expressly object to a paper determination, his response was ambiguous and his proposals in emails of 16 and 29 December 2024 suggesting that the hearing take place by telephone demonstrated a wish to participate.

I do not accept this argument gives rise to an arguable error of law.

The FTT was entitled to find as a matter of fact that the parties had agreed to a paper determination i.e the Applicant had consented to proceeding on the papers without a hearing. The Applicant’s emails of 16 and 29 December 2024 make references to an alternative offer of a telephone hearing or being asked questions by telephone but do not undermine the FTT’s finding that he consented to a paper determination by virtue of the plain words in the email of 16 December 2024 (‘I am happy to proceed with paperwork’). This was supported by the wider context of the email as a whole. The FTT was entitled to find that the Applicant’s consent to proceeding without a hearing was given even if he offered a telephone hearing as an alternative.

I do not accept the submission that there was an error in the FTT’s finding because the consent was conditional or that the offer to engage by phone if the FTT would like undermined that consent. If the Applicant had wished to participate by telephone only and insist on there being a telephone hearing he could have refused to consent to a paper determination.

There is no arguable error of law in the FTT’s application of Rule 29(1)(b) nor the overriding objective, Rule 2, in deciding it was able to decide the matter without a hearing and just to do so for the reasons set out at [(3)] above and in [(2)]:

“Prior to late 2024 this Tribunal was unable to take evidence from a witness in South Africa remotely (either by video or telephone hearing). Accordingly, I on 29 February 2024 I made directions for the management of the appeal facilitating a decision on the papers including directions that the parties prepare and have answered questions they would have wished to put to witnesses had there been a hearing. The directions also provided for the exchange of position statements/skeleton arguments.”

I am not satisfied that the exercise of the discretion to proceed without a hearing was arguably contrary to the overriding objective nor took into account irrelevant matters nor failed to take into account relevant matters. It was not arguably procedurally unfair nor in error of law. The FTT obviously took into account the fairness of the proceedings in [(2)], [(3)] and [28] in the absence of oral evidence but made a decision to proceed as being fair in light of the procedures adopted in writing for answering questions put by the other party and considering written submissions and evidence. It explained that it did not require any additional information from the parties.

The Applicant accepts that the FTT endeavoured to manage the procedural limitations arising from residing in South Africa (and FCDO restrictions on giving evidence from abroad). However, Ms Duncan submits that the fact that the Tribunal could not lawfully and/or technically take evidence from South Africa at the time did not remove its continuing obligation to ensure fairness under Rule 2(1) and Rule 2(2)(c) the FTT Rules 2009 which provide respectively:

“The overriding objective of these Rules is to enable the Tribunal to deal with the cases

fairly and justly”; and

“Dealing with a case fairly and justly includes... (c) ensuring, so far as practicable,

that the parties are able to participate fully in the proceedings.”

I accept that the assessment of fairness, justice and practicable participation in proceedings are questions required to be reviewed on an ongoing basis. Once the Tribunal recorded that remote evidence from South Africa became feasible in late 2024 (at [(2)]), it was still required to reconsider whether oral participation was necessary to ensure fairness. The time difference between South Africa (UTC +2) and the UK (UTC + 1) is approximately 1 hour and would not have prevented practical scheduling of a telephone hearing.

Ms Duncan submits that in treating the Applicant’s location and the impracticality of conducting a hearing over telephone due to the length of the hearing and volume of papers as purported reasons to deny oral participation, the FTT failed to apply Rule 2 and took into account irrelevant matters. Further she argues that the FTT’s statement that a telephone hearing would have been inconsistent with the overriding objective was a misdirection as to the purpose of that objective. The overriding objective exists to secure fairness, not to avoid administrative burden or complexity, particularly where issues and conduct were central to the outcome.

She contends that the FTT treated administrative difficulty as a reason to curtail the Applicant’s participation, and it failed to revisit the assessment as to the proper form of hearing once the FCDO restrictions on giving evidence from South Africa had been lifted. The Applicant was therefore denied any opportunity to respond to serious allegations of deliberately filing inaccurate returns. She submitted that the Decision resulted from an unfair hearing was ‘written in the water’ per Lord Reed at paragraph 49 of Serafin v Malkiewicz [2020] UKSC 23.

I do not accept that there was an arguable error of law. The FTT took into account the fairness to the Applicant of proceeding without a telephone hearing at [(2)], [(3)] and [28] finding that the Applicant had received a reasonable opportunity to put his case in writing and there was no additional information the Judge required in order to make the decision and it would be unfair to call one party by telephone and not the other. This was a permissible exercise of discretion and did not take into account irrelevant matters.

Likewise, the FTT was entitled to take into account practical matters in exercising its discretion and when proceeding without a telephone hearing by virtue of Rule 2(2)(a), proportionality to the importance and complexity of the issues, (b), flexibility and (e) avoiding delay so far as compatible with proper consideration of the issues.

In the light of considering of Rule 2(2) (a)-(e), it is apparent that the submission that the FTT cannot take into account administrative and practical considerations when making its decision is not arguable. Even if one were to limit themselves to Rule 2(2)(c), the requirement is to ensure participation in the proceedings only extends “so far as practicable”. The use of “practicable” as opposed to a different word such as “possible” is an indication that administrative burdens, challenges and complexities fall within the ambit of the overriding objective of dealing with cases fairly and justly and can be taken into account as a relevant matter when deciding the form of the hearing. It was not the only the matter the FTT took into account – it also balanced and considered fairness as set out above. This was against the further background where the FTT was entitled to find that the Appellant had consented to a paper determination.

The Applicant had stated he was unable to travel to the UK to attend a hearing in person. The parties were invited to make submissions on the form of the hearing in December 2024 and the Applicant stated, ‘I am happy to proceed with paperwork or some form of mobile connection, as we do not have a stable internet service in our area.’ He therefore did not request a telephone hearing but consented to a paper hearing while offering telephone as an alternative. The FTT was entitled to decide that a telephone hearing would not be just and fair (in accordance with the overriding objective) for the reasons it gave (including the length of the hearing and volume of papers). Furthermore, the FTT adopted a written procedure by which evidence could be tested by way of written questions and answers being given in respect of the witnesses’ evidence. This procedure was to provide a fair hearing in accordance with the principles of natural justice.

I am also satisfied that the Applicant was given a reasonable opportunity to attend a hearing in person or by video but declined it. The procedure adopted was just and fair. It was clear that the Applicant did not require a telephone hearing even if he raised the potential as an alternative. Most importantly, and in any event, he consented to a paper determination without a hearing. It was fair for the FTT to proceed on the papers without a telephone hearing for reasons it gave. The procedure was fair to both parties because the FTT had to decide the reliability and credibility of all witnesses and the weight to be given to their evidence based on written statements and written answers to the questions. This was the closest to cross examination that could be adopted without an oral hearing. The FTT made a case management decision that was rational and it took into account material matters when exercising its discretion.

In conclusion, the general complaint of procedural unfairness based upon proceeding to determine the appeal on the papers without a hearing, does not give rise to an arguably material error of law in the FTT’s Decision. I agree with the matters relied upon by the FTT at paragraph 6 of the PTA Decision. The FTT therefore applied Rules 29 and 2 without arguable error of law.

I refuse permission on Ground 1a.