Upper Tribunal Tax and Chancery Chamber

UT/2023/00014 - 17 - [2025] UKUT 00197 (TCC)

Fecha: 11-Mar-2025

General principles

General principles

15.

Rule 5(3)(d) of The Tribunal Procedure (Upper Tribunal) Rules 2008 provides the Tribunal with the following case management power:

(3)

In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper

Tribunal may …

(d)

permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;

16.

The jurisdiction to issue a witness summons appears in Rule 16:

Summoning or citation of witnesses and orders to answer questions or produce documents

16(1) On the application of a party or on its own initiative, the Upper Tribunal may —

(a)

by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation …

(2)

A summons or citation under paragraph (1)(a) must—

(a)

give the person required to attend 14 days’ notice of the hearing or such shorter period as the Upper Tribunal may direct; and

(b)

where the person is not a party, make provision for the person’s necessary expenses of attendance to be paid, and state who is to pay them.

(3)

No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are due to be determined.

(4)

A person who receives a summons, citation or order may apply to the Upper Tribunal for it to be varied or set aside if they did not have an opportunity to object to it before it was made or issued.

17.

Mr Weller correctly submitted that just because a person can give relevant evidence does not mean that the Tribunal must hear from that witness. Rule 15 provides that the Tribunal can limit the evidence it hears as a matter of case management.

18.

There was no dispute between the parties as to the principles I should apply in determining whether to issue a witness summons to Mr Weller. I can summarise the principles as follows:

(1)

There is a burden on the party seeking a witness summons to justify the need for it (see Morris v Hatch [2017] EWHC 1448 (Ch)).

(2)

A witness summons will be justified only if there is a real likelihood that the witness will give evidence that will materially assist the Tribunal in its determination of an issue or issues in the proceedings (see Ford and Owen v FCA [2017] UKUT 147 (TCC) at [12]).

(3)

The grounds on which a potential witness can oppose the issue of a witness summons include where it would be unfair and oppressive for the Tribunal to issue a witness summons (see Barclays Plc v FCA [2024] UKUT 00214 (TCC) at [47] and [48]).

(4)

There is a burden on the potential witness to establish that a witness summons would be unfair and oppressive (see Barclays Plc v FCA at [51]).

(5)

What is unfair and oppressive is extremely fact-sensitive. It involves a balancing exercise taking into account all the circumstances including any unfairness to the potential witness, the materiality of the evidence and the consequences for the fairness of the proceedings if the potential witness is not required to give evidence (see Barclays Plc v FCA at [48]).

19.

Mr Weller submitted that if a potential witness can show some basis for saying that it would be unfair and oppressive to require the witness to give evidence, essentially a prima facie case, then the Tribunal goes on to balance all relevant factors. I do not consider that is the correct approach. The question is whether in all the circumstances it would be unfair and oppressive to require the witness to give evidence. That is the approach I intend to take, although both approaches ought to give the same result.