UT/2024/000070 - [2025] UKUT 00210 (TCC)

It is common ground that no single document incontrovertibly proves that the goods were removed from the UK. The Appellant argues, however, that the FTT failed to consider whether the documents, taken together, established its case.

At the outset it should not be overlooked that the issue of whether the evidence which complied with VAT Notice 725 was sufficient to show removal, is a matter of evaluative fact. While under other grounds the Appellant argues the FTT erred in matters of legal principle, under this ground Mr Southern rightly accepted the legal principles that findings (involving evaluation) of fact are matters which an appellate court or tribunal will be slow to interfere with. The Appellant is thus correct to puts its challenge to the FTT’s conclusion in terms of the high threshold of having to show that it was one that the FTT was not entitled to reach. Although the appellant has framed this challenge by reference to the fact of removal, we shall consider it in relation to sufficiency of evidence.

To address the arguments that the FTT failed to consider the evidence as a whole, and that it could only have concluded the goods were removed (or that there was sufficient evidence to prove this) it is helpful first to outline the Appellant’s arguments about the individual categories of evidence, and how the FTT then assessed those.

In respect of the various categories the Appellant makes the following points: (1) The fact the payments to the Appellant were from a Belgian bank account. That is a “very strong indication” of export, as a buyer would not continue to pay for goods not received. In particular, the Appellant’s written submissions contend that the FTT gave no reasons for not accepting that the Appellant’s Barclays bank statements evidenced the export of the scrap metal. It is said that the inference from payments, especially in a sequence of transactions, is that the goods were received, and that this strongly indicates removal from the UK. The Appellant questions why this does not confirm who received the goods or where they were received, noting that there was no contrary evidence. (2) The fact Sales invoices were issued to a Belgian-registered company, with an undisputed Belgian VAT registration. (3) The Weighbridge tickets were consistent with the other documents, show the consignments left the Ashford yard and show the customer as a business based in Belgium. (4) The CMRs, which the Appellant submits were issued in triplicate, show an intention for cross-border movement. (5) The Annex VII documents are only used in cross-border waste shipments. (6) The P&O boarding cards, which were excluded due to timing support export. (7) Emails and WhatsApp messages link to consignments showing a Belgian address. (8) There is consistency in load weights across documents, indicating they relate to the same consignment.

The FTT addressed all of these items as follows,: (1) On payments, at [130]–[131], it found that the bank statements only evidenced receipt of payment. Although it was accepted on the back of those statements that payments were received by the Appellant from Recyclink’s Belgian bank account it did not follow the loads were received by it in Belgium; payment did not confirm “who received the goods nor where the goods were delivered”. (2) On sales invoices, at [130], it stated: “Despite the sales invoice confirming the sale to a purchaser who is a Belgian registered company it does not automatically follow nor can it be inferred that the address of the purchaser is the same address as the destination that the goods were sent to.” (3) On weighbridge tickets, at [133], it explained those were issued whether the load was being exported or sold a UK buyer and that they merely confirmed what was apparent – a consignment to a Belgian based and VAT registered company that was collected by a UK registered vehicle (and where the UK registration did not appear in any subsequent documents provided as evidence) (4) On CMRs, at [136], it noted that none of the CMRs were fully completed by the haulier and receiving consignee. The fact the load was sold to Belgian registered company did not mean the loads were exported. (5) On Annex VII documents, at [138], the FTT did not accept that they evidenced export: none of the them had the box for “Signature upon receipt of the waste by the consignee” completed and the fact they stated the UK as the export destination and other dates meant they could not be relied on. (6) On P&O boarding cards, at [140], it found that even if the timing issue were set aside, they did not evidence export; they did not have any identifying features such that they could be matched with any of the disputed consignments. (7) On emails and WhatsApp messages ([142] and [147]) the FTT noted the e-mails were obtained outside the three-month time limit and at their highest showed a request for the carrier to collect and deliver to a Belgian carrier abroad. The WhatsApp messages showed Mr Callewaert “acting as a middleman and buying on behalf of unidentified third parties”. They did not identify the clients or the destination for the loads (8) As regards the load weights, the FTT did not find these persuasive as evidence of export noting at [141] that load weight of in the region of 43.00 tonnes would invariably be arrived at from the standard 25.00 tonnes for a fully laden lorry when added to the standard are of 18.00 tonnes.

Accordingly, as regards each of these individual categories of evidence, the FTT considered, for the reasons it explained, that they did not evidence the loads were removed outside the UK.

Before us Mr Southern sought to undermine the FTT’s evaluation of some of these categories of document through a series of specific points. For the reasons below none persuade us that the FTT was not entitled to reach the view it did.

It was therefore open to the FTT to take the view that the evidence was insufficient in its evaluation of the individual categories of documents.

Moving on the question of whether the FTT then considered the evidence in combination we should first acknowledge what the FTT itself recorded as regards the need to do this.

From this it is clear the FTT was aware of the need to look at the documents in combination.

For the reasons below we are satisfied the FTT delivered on the task that had been identified and that did it consider the evidence in its totality accordingly.

First and foremost it should not be overlooked that the FTT expressly put its conclusion at [148] in these terms. That specifically referred to having assessed “all documentation … taken as a whole.” Mr Southern argued that was a mere “verbal formula” but it is difficult to see how the FTT could be criticised for saying it was doing, and in as straightforward terms as possible, what both parties had urged it to.

It must also be recognised that the exercise of looking at documentation as a whole involves some measure of overall evaluative impression and judgment which by its nature is not necessarily straightforward to describe in a discrete piece of detailed reasoning. In the circumstances here, where the FTT had carefully dealt with each of the categories of information separately, it is not clear to us what the FTT might usefully have added, beyond stating that it had looked at the documents together as a whole (which is in effect what it did at [148]) in order to demonstrate that it had stood back looked at the documents together.

Moreover, to the extent analysis of how the documents interacted with each other was called for, we can see the FTT did that when evaluating some of the individual categories of documents. At [141] for instance, it considered whether boarding cards could be matched to specific consignments, thus indicating that it was thinking about how the evidence linked together.

In advancing the Appellant’s case that, if the documents were looked at in their totality that would have made a conclusion in the Appellants’ favour inescapable, Mr Southern made a variety of general points and observations. None of them in our view alter the analysis that the FTT was entitled to reject the Appellant’s case.

Mr Southern argued, for instance, that people often make mistakes, fail to fill out standard documentation fully and that, while the fact documentation is incomplete might reduce its evidential value, that did not invalidate it. However, the FTT was not rejecting the documents as invalid but simply came to the view that because of certain significant gaps (e.g. consignee signatures in the case of CMRs) it did not evidence export.

Mr Southern also argued that the Appellant’s business set up of choosing to use experienced staff rather than casual labour lent support to the reliability of the documentation. We do not see that follows. At best it might provide explain why, if such employees were trusted more, information that would otherwise be required for the Appellant’s internal monitoring was not considered as necessary, but it would not help one way or the other on the question of the sufficiency of evidence as regards removal.

Mr Southern also referred to Mr Simon Ripley’s oral evidence that the Ashford yard was chosen for it is proximity to Dover, but such a general point would not address the requirement to show evidence in relation to removal of specific consignments and is not inconsistent with loads being collected from there yet not being removed.

Thus, while the Appellant’s case is that a cumulative assessment would necessarily lead to a finding in its favour, we do not accept that this follows. The Appellant does not persuade us how the various documents, found to be insufficient individually, could when combined provide the necessary evidence in relation to removal as regards the specific identified consignments.

In our judgment nothing in the combination of documents, given the shortcomings identified in them, meant the FTT was compelled to find the evidence was sufficient evidence of removal for the purposes of VAT Notice 725. The evidence was consistent with transactions which, despite involving a sale to Belgian VAT registered company, involved the goods remaining in the UK.

If the framing of the issue by the FTT and by us (as one concerning sufficiency of evidence) were incorrect, so that the question turned on the fact (or not) of export, we would not have accepted that the evidence before the Tribunal compelled a conclusion that the goods had been removed from the UK. Even it could be said the evidence was not inconsistent with removal, it was also the case that it was not inconsistent with the goods remaining in the UK.

We therefore reject this ground of appeal.