UT (Tax & Chancery) UT/2025/000047 - [2025] UKUT 00362 (TCC)

Since this was a “high-value complex dispute” the starting proposition was that HMRC should disclose relevant documents to Mr McCabe unless there was a good reason not to ([22]).

The FTT must exercise its discretion to order additional disclosure so as to give effect to the overriding objective. That objective of dealing with a case fairly and justly includes dealing with it in a way which is proportionate ([23]).

The FTT has power to order the production of any document in a person’s possession or control which relates to an issue in the proceedings ([24]). In E Buyer, one of the issues was whether it was an error of law by the FTT not to have displaced Rule 27 with broader CPR-style disclosure. In determining that the FTT had not so erred, Sir Geoffrey Vos C stated at [94]:

“It is true that this is an important case, but the 2009 Rules were made for important as well as simple cases. The plain fact is that the procedure is different in the F-tT.”

Relevance is to be assessed by reference to the issues in the case and the positions of the parties, citing Smart Price CA at [40]:

“Disclosure of documents is not an end in itself but a means to an end, namely to ensure that the tribunal has before it all the information which the parties reasonably require the tribunal to consider in determining the appeal. It is only one step in the overall management of the case which should, as the appeal progresses towards a substantive hearing, identify and if possible narrow the issues between the parties. The scope of the issues in contention at the trial depends in part on the legal test to be applied by the tribunal and in part on the parties’ respective positions as to which elements of that test are in contention.”

A degree of caution must be exercised in drawing from the decision of Sales J in Ingenious Games principles of general application regarding disclosure; whereas the guidance in the subsequent Court of Appeal decisions in E Buyer and Smart Price CA was of broader general application ([28]).

In considering an application for disclosure the test of whether a document is potentially probative of one of the issues is a sensible approach. As the Court of Appeal observed in Smart Price CA, the test must be applied by reference to the issues in the case. This does not mean the issues in some abstract or generalised sense, but the issues and asserted facts as identified from each party’s pleaded case ([33]).

The starting point in the FTT in a complex, high-value case may be that a document which is relevant (in the broadest sense) should be disclosed unless there are good reasons to the contrary, but that is only a starting point. On an application for disclosure, the tribunal will need to consider the degree of potential relevance of the document and whether there is a need for disclosure in order to enable a fair determination of the issues to take place. Further, in taking into account the overriding objective, what might amount to “good reasons” for refusing to order disclosure of documents that are relevant are likely to differ depending on whether a document is materially adverse to a party’s case or merely a background document or one which might lead to a train of enquiry ([37]).