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

An appeal to the UT from a decision of the FTT can only be made on a point of law: section 11 Tribunals, Courts and Enforcement Act 2007. HMRC must demonstrate that it is arguable that the FTT made an error of law in reaching its decision which was material to that decision. “Arguable” means an argument which carries a realistic as opposed to fanciful prospect of success.

The approach to be taken where an appeal is made against a case management decision has been addressed extensively, with the appellate courts emphasising the need for “extreme caution” (Goldman Sachs International v HMRC [2009] UKUT 290 (TCC) ([23] to [24]).

In HMRC v Dettori [2024] UKUT 12 (TCC), the UT said:

“An appeal against a case management decision

16.

An appeal to this Tribunal lies only on a point of law…In addition, the direction under appeal resulted from an exercise by the FTT of its case management powers. In the decision of the Supreme Court in BPP Holdingsv HMRC [2017] UKSC 55 (“BPP”) Lord Neuberger, delivering the judgment of the Court, said this, at [33]:

In the words of Lawrence Collins LJ in Walbrook Trustee (Jersey) Ltd vFattal [2008] EWCA Civ 427, para 33:

“[A]n appellate court should not interfere with case management decisions by a judge who has not applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

In other words, before they can interfere, appellate judges must not merely disagree with the decision: they must consider that it is unjustifiable.

17.

Earlier in his judgment, at [21], Lord Neuberger said:

However, it would nonetheless be appropriate for an appellate court to interfere with [the FTT’s decision], if it could be shown that irrelevant material was taken into account, relevant material was ignored (unless the appellate court was quite satisfied that the error made no difference to the decision), there had been a failure to apply the right principles, or if the decision was one which no reasonable tribunal could have reached.”

We have applied these principles in reaching our decision.