UT/2024/000087 - [2025] UKUT 00287 (TCC)

The Respondents were seeking to prove deliberate error, and the lack of records for test purchases were a key part of that. Therefore, it was procedurally unfair to allow such an important part of their case to be produced during the hearing preventing the Appellant’s witness from dealing with it adequately. The taxpayer’s representative was not a lawyer. Accountants regularly represent taxpayers in the FTT and can be expected to explain the taxpayer’s case as a matter of the taxing provisions. However, on matters of procedural fairness and the approach to evidence, it matters whether or not the taxpayer is legally represented. The courts have acknowledged that non-legal representatives cannot be expected to deal with evidential and procedural matters in the same way that lawyers would be: see the Court of Appeal in Serene Construction v Barclays Bank [2016] EWCA Civ 1379 at [32] and [38], and the Equal Treatment Bench Book at 124-126.

It was confirmed at the hearing before me by Ms Hickey that the documents handed up contained 5 sheets that had been omitted from the bundle of documents that should have been included behind the first page that was included in the bundle. These sheets that contained a detailed analysis - referred to as the meal ticket analysis. Mr Doshi informed me that the primary issue that he took issue with was the lack of documents underlying the analysis. The detailed analysis of the whole days’ takings was new data. There was an objection made in written submissions made following conclusion of the hearing. Ms Hickey referred to her notes of the hearing which noted that the FTT Judge checked with the Appellant’s representative regarding the admission of the evidence and that no objection was raised by the representative. In light of that information Mr Chacko agreed that the admission of the evidence was not properly objected to. The meal ticket analysis was provided to the Appellant during a meeting in 2018. Mr Chacko argued that the witness would not have been able to remember detail from so long ago.