UT/2024/000031 - [2025] UKUT 00254 (TCC)

In this appeal the appellant (“Circleplane”) has appealed a decision of Tribunal Judge Fairpo (“the Judge”) sitting in the First-tier Tribunal Tax Chamber (“the FTT”). The hearing before the FTT was listed before the Judge on 3 October 2023. Mr Joseph Howard of counsel was representing Circleplane (“Counsel”). At the start of the FTT hearing, Counsel applied for the Judge to recuse herself on the grounds of a perception of bias. The Judge refused the application but the hearing was vacated because the time spent dealing with the application meant that there was insufficient time to deal with the substantive appeal.

The Judge issued written reasons for refusing the recusal application on 20 November 2023 (“the Recusal Decision”) which is the decision under appeal. The Judge set out the case law on recusal for perception of bias at [5] – [13] of the Recusal Decision. She set out the basis upon which it was alleged there was a perception of bias at [15] to [19]. In brief, and as described by the Judge, the perception of bias (and the Judge’s response) was as follows:

Applying the test for perception of bias, the Judge found that a fair-minded observer in those circumstances would not conclude that there was a real possibility of bias against Circleplane. The application was therefore refused.

Circleplane applied for permission to appeal on 15 January 2024 on the following grounds:

In the application for permission to appeal, Counsel described the dispute in more detail. For present purposes we can simply record that the dispute is said to involve sensitive issues including allegations of discrimination by the management committee and by other members of Chambers not including the Judge. It is also said that emails between Counsel and the management committee were exchanged which were copied in to other members of Chambers, including the Judge. It is said that the Judge was therefore privy to details of the dispute and that the dispute could have directly affected the Judge’s own commercial and financial position. As a member of Chambers at the material time she could be personally liable for any damages awarded against Chambers. It has subsequently been said by Counsel that the dispute is unresolved and could be reignited.

Prior to the application for permission to appeal, the FTT wrote to the parties on 19 December 2023 asking for dates to avoid to relist the substantive appeal. Counsel responded on 2 January 2024 saying that if the matter were to be relisted before the Judge then it could not be effective. If a different judge was allocated, the substantive hearing could be effective and Counsel encouraged the FTT to take that course. In the alternative, he said that the FTT appeal should be stayed pending Circleplane’s appeal against the Recusal Decision.

The Judge granted permission to appeal on all grounds on 28 February 2024.

On 23 May 2024, the FTT sent a notice of hearing with a new hearing date of 18 September 2024. We understand that the hearing took place on that date before a different judge. A different representative appeared on behalf of Circleplane at that hearing because Counsel was not available. The underlying FTT appeal concerned an information notice issued to Circleplane. A decision was released on 19 September 2024 allowing the appeal in part and directing that the information notice should be varied. There is no right of appeal against that decision which is therefore final.

Given that the substantive FTT appeal has been determined, one might have expected that to be an end of the present appeal. However, on 13 January 2025 Circleplane made an application for privacy and anonymity (“the Privacy Application”) in connection with this appeal. There was no indication in the Privacy Application that the FTT appeal had been determined, indeed it was referred to as still continuing. Circleplane sought directions as follows for the Upper Tribunal appeal:

The Privacy Application alleges that, despite what the Judge had said about her lack of knowledge of the dispute between Counsel and Chambers, she would have been aware of full details of the dispute. In support of that allegation, contemporaneous emails referring to the dispute to which the Judge had been copied at the time were annexed to the Privacy Application. The Privacy Application alleges in the alternative that a reasonable observer, with full knowledge of the facts, would regard the Judge’s denial of knowledge of the detail of the dispute as being inconsistent with the evidence, thus heightening the suspicion of bias.

The Privacy Application referred to the sensitive nature of the dispute in Chambers and to certain matters relating to Counsel. It is said that these matters also affect the privacy of third parties, including members of Chambers and former members of Chambers. The Privacy Application included an application that if it was dismissed, the fact of the application should remain private and anonymised.

On 4 February 2025, HMRC applied for the Upper Tribunal to dispose of the appeal and the Privacy Application on the basis that the underlying proceedings had been determined by the FTT. As such, the appeal served no purpose and should be discontinued. Essentially, this was an application to strike out the appeal (“the Strike Out Application”).

Circleplane served an objection to the Strike Out Application on 20 February 2025. It contended that there was no basis for HMRC to ask for the appeal to be discontinued and that there is no jurisdiction for the Upper Tribunal to strike out an appeal where permission to appeal has been granted. The notice of objection also included cross-applications by the Appellant as follows (“the Cross-Applications”):

The Upper Tribunal gave directions on 10 March 2025 for a hearing of the Privacy Application, the Strike Out Application and the Cross-Applications to take place on 13 May 2025. It also directed that the hearing should be in private. No direction was given in relation to the anonymisation of any decision following the hearing. The Tribunal also gave the FTT and Chambers an opportunity to make representations and to appear at the hearing. The then President of the FTT Tax Chamber informed the Tribunal that the FTT did not wish to attend the hearing or make representations. Chambers informed the Tribunal that it did not wish to appear at the hearing. It made clear its position that the allegations being made by Counsel were factually inaccurate and vigorously disputed.

At the outset of the hearing, we made clear to Mr Eissa KC, who appeared for the Appellant, that if the Privacy Application was not successful then we were not at that stage persuaded that our decision and the names of parties including Counsel should be anonymised. We would however be sensitive as to what was necessary to record in our decision. Having taken instructions, Circleplane maintained the Privacy Application and the Cross-Applications and objected to the Strike Out Application.

HMRC’s position is that it maintains the Strike Out Application. In the event that the Strike Out Application is rejected, it does not oppose the Cross-Applications and is neutral on the Privacy Application.

There was some discussion as to the order in which we should deal with the various applications. The Strike Out Application and the Cross-Applications are inextricably linked. It was common ground that an appeal against the Recusal Decision would be academic as between the existing parties. Mr Eissa did not seek to persuade us that the appeal should go forward with the existing parties, although the point was not formally conceded. By replacing those parties pursuant to the Cross-Applications, Counsel and the Company seek to achieve what they say is an important objective, namely certainty in relation to future cases listed before the Judge in the FTT where Counsel is instructed. In the circumstances we decided to hear the Strike Out Application and the Cross-Applications together. We then heard the Privacy Application separately.

We adopt the same approach in this decision.