UT (Tax & Chancery) UT/2023/000103 - [2025] UKUT 00102 (TCC)

In Proctor and Gamble UK v R&C Comrs [2009] EWCA Civ 407, [2009] STC 1990 (“Proctor and Gamble”), Jacob LJ said at [9]:

“Often a statutory test will require a multi-factorial assessment based on a number of primary facts. Where that it so, an appeal court (whether first or second) should be slow to interfere with that overall assessment— what is commonly called a value-judgment.”

Jacob LJ went on to summarise earlier authorities, including his own decision in Rockwater v Technip [2004] EWCA (Civ) 381, [2005] IP & Tribunal 304 (“Rockwater”), where he had said at [73]:

“It is important here to appreciate the kind of issue to which the principle applies. It was expressed this way by Lord Hoffmann in Designers Guild:

‘Secondly, because the decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, I think that this falls within the class of case in which an appellate court should not reverse a judge's decision unless he has erred in principle.'”

In Perrin, the UT similarly said at [71] that in deciding whether a person has a reasonable excuse, the FTT was:

“making a value judgment which, assuming it has (a) found facts capable of being supported by the evidence, (b) applied the correct legal test and come to a conclusion which is within the range of reasonable conclusions, no appellate tribunal or court can interfere with.”

Whether or not MLT “reasonably believed” that the unauthorised payments made to Ballards, Criticall and Gannon were not scheme chargeable payments is exactly the sort of multi-factorial value judgment referred to by the authorities set out above, and we should only interfere with that judgment if the threshold set out above is met.