Upper Tribunal Tax and Chancery Chamber

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

Fecha: 04-Jul-2025

Jurisdiction of the Upper Tribunal

Jurisdiction of the Upper Tribunal

An appeal to the Upper Tribunal lies only on ‘any point of law arising from a decision’ of the First-tier Tribunal (section 11(1) of the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’)). A party’s right of appeal may be exercised only with permission (section 11(3) of the 2007 Act). The Upper Tribunal will generally give permission to appeal if there is a realistic prospect of success in demonstrating that the First-tier Tribunal materially erred in law in making its decision, in other words that it is arguable that the decision was wrong in law. A material error in the decision means that any error must have had the potential to change the outcome of the case.

Normally, findings of fact by the FTT cannot be the subject of an appeal. Findings of fact, whether primary facts or factual inferences, can be an error of law where the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal (Lord Radcliffe in Edwards v Bairstow [1956] AC 14 at 36). If, in making its factual finding, the FTT ignored relevant considerations, took into account irrelevant considerations, or came to a conclusion that could not be supported by the available evidence, its determination can be set aside.

The approach to this kind of appeal is a well-trodden path. The following principles (See Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) are well-settled:

an appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong,

ii)

the adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)

an appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable

Further the weight to be attributed to evidence is matter for the FTT and the evaluation of the reliability of witness evidence is the quintessential function of the First-tier Tribunal judge who has seen and heard the witnesses.