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

Under this ground the Appellant argues the significant delay impaired the fact-finding function of the tribunal and represented an addition supporting the errors made under the other grounds.

The hearing was held from 28 November to 1 December 2022 yet the decision was not released until 1 year and 2 months later on 7 February 2024. Although HMRC point out there was a period or so when directions (further to the Appellant’s request) for the parties submissions were made and the submissions awaited (13 February 2023 to 10 April 2023) that still leaves a significant period of delay between the hearing and the issue of the decision dismissing the appellant’s appeal.

The Upper Tribunal in HMRC v Marlborough DP Ltd [2024] UKUT 98 (TCC) explained at [45] that it was:

“…quite clear from the authorities that delay alone will be insufficient to afford a ground for setting a judgment aside. However, the delay will be an important factor to be taken into account when an appellate court is considering the trial judge’s findings and treatment of the evidence.”

As to whether the delay impaired the findings and treatment of the evidence, we note this is a case where the Appellant’s challenge has focussed not on the primary facts found but on the inferences to be drawn from them. As has been explored under Ground 3 and as Ms Rao pointed out, it involved examination of the documents advanced and reaching a view on the sufficiency of that material at a particular time. It was not a case which turned on FTT taking a view on the oral evidence of a witness, resolving conflicting accounts where witness reliability or credibility was in issue.

Although the delay in issuing the decision was regrettable, it did not manifest in any error of law in that it did not lead to any impairment in the treatment by the FTT of the evidence and arguments before it. The FTT made findings from the documentary evidence, and it drew inferences taking account of its views on the competing submissions. It dealt carefully and in appropriate detail with the findings it needed to make.

We therefore reject this ground. In the particular circumstances of this case there was no error of law arising out of the delay, whether independently or as a reason which supported the other errors (which for the reasons discussed above are not made out).