Burton Skip Hire Limited v The Commissioners for HMRC

This is an application (the “Application”) by the Appellant, Burton Skip Hire Limited (“Burton”), for a direction, pursuant to Rule 15(2)(b) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, debarring the Respondents (“HMRC”) from relying on any documents not disclosed on their List of Documents (“LOD”). HMRC oppose the Application and have made a cross-application (the “Cross-Application”) for a direction that those documents (the “Disputed Documents”) be admitted.

With the consent of the parties, the form of the hearing was video using the Microsoft Teams platform. I was referred to an agreed Hearing Bundle comprising 446 pages, an agreed Authorities Bundle and skeleton arguments on behalf of both parties. Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.

Christopher McNall appeared for Burton. HMRC were represented by James Abernethy. I am most grateful for their helpful submissions, both written and oral, and have taken all of these into account together with the materials to which I was referred and authorities cited, even if not mentioned in this decision.

On 15 May 2024 Burton appealed to the Tribunal against an assessment to Landfill Tax in the sum of £112,596 relating to material deposited at a site in Derbyshire (the “Site”) operated by Liberty Construction Limited (“Liberty”). HMRC filed and served their statement of case on 11 November 2024. The parties exchanged their LOD, pursuant to Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, by 23 December 2024.

On 29 January 2025 the Tribunal issued case management directions (the “Directions”) to progress the appeal to a hearing. Directions 1 and 2 of the Directions, which are relevant to the Application, provide:

“List of documents

1.

Not later than 14 March 2025 each party shall:

(1)

send or deliver to the other party and the Tribunal a list of documents in its possession or control which that party intends to rely upon or produce in connection with the appeal (“documents list”); and

(2)

send or deliver to the other party copies of any documents on that documents list which have not already been provided to the other party and confirm to the Tribunal that they have done so.

Witness statements

2.

Not later than 11 April 2025 each party shall send or deliver to the other party statements from all witnesses on whose evidence they intend to rely at the hearing setting out what that evidence will be (“witness statements”) and shall notify the Tribunal that they have done so.”

Direction 3 of the Directions concerns the provision of the Hearing Bundle by the Appellant to the Respondents specifying what should be included in it. Direction 4 states:

“The Appellant shall ensure that the copy in the documents bundle of the witnesses’ statements shall, where there is a reference to an exhibit in the text, include a hyperlink to that exhibit in the documents bundle …”

Burton filed and served an amended LOD on 14 March 2025. HMRC confirmed that they would rely on the LOD previously served.

On 25 April 2025, each party, having been granted an extension of time to do so, provided the other with their witness statements. It is common ground that the Disputed Documents, which it is accepted are relevant, were not included on HMRC’s LOD but were exhibited to the statements of HMRC’s witnesses, Moses Tettey, an officer of HMRC, and Jason Relf, an officer of the Environment Agency (“EA”).

The following Disputed Documents were exhibited to Officer Tettey’s statement:

The Disputed Documents exhibited to Mr Relf’s statement were:

An email, of 6 June 2025, from Burton to HMRC raised the issue of the Disputed Documents, it stated:

“… It has come to our attention during the process of reviewing the Revenue’s Witness statements/Bundle preparation that several of the exhibits contain documents that were neither listed in the Respondents’ List of Documents nor previously disclosed to us.

As you know, and in accordance with the Tribunal’s Directions, all documents that a party wishes to rely on or produce in connection with the appeal were to be listed and provided to the other party. That has not been done. You cannot rely on documents unless they are in your LOD. You cannot introduce documents for the first time by way of exhibiting them to a witness statement. You could apply to amend your LOD, but you will need permission and/or an EOT. We would object because it is not fair. You will be aware of the decision in BPP Holdings.

This affects:

MT3 - MT7 (inclusive)

JR1, JR5, and JR6.

How do you propose to deal with this? Can you please revert asap as we are supposed to serve/lodge the Bundle by today. In our view, guided by counsel, the simplest way would be for the offending exhibits to be removed, and the witness statements edited appropriately/redacted to remove reference to the contentious exhibits [ie the Disputed Documents].”

Although the parties sought to resolve the issues regarding the Disputed Documents through correspondence, they were unable to do so. On 20 June 2025 Burton made the Application.

HMRC, in their response to the Application, dated 9 July 2025, have stated that the Disputed Documents had been exhibited to the witness statements of Mr Relf and Officer Tettey because they were either not in HMRC’s possession at the time the LOD was produced (in relation to the Disputed Documents exhibited to Mr Relf’s statement as JR5 and JR6) or their relevance only became apparent in the light of the evidence contained in Mr Relf’s and Officer Tettey’s witness statements (in relation to the Disputed Documents exhibited to Mr Relf’s statement as JR1 and exhibited to Officer Tettey’s statement as MT3 – MT7 (inclusive)).

The appeal is at a fairly early stage. No date has been fixed for the substantive hearing. Also, immediately after the hearing of the Application I issued directions staying the proceedings for 28 days from the date of issue of this decision. This was to enable the parties to either provide the Tribunal with their joint proposals for the onward progression of the appeal to a hearing or, if agreement was not possible, for each party to provide the Tribunal with their own proposed directions.

The following issues arise:

However, before addressing these issues it is convenient to first set out the relevant procedural rules and some judicial observations on their application and the admission of evidence.

The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the “Rules”) apply to proceedings before the Tribunal (see Rule 1(2)). All subsequent references to Rules, unless otherwise stated, are to the Rules.

Rule 2 provides:

The Tribunal’s case management powers are set out in Rule 5, the relevant parts of which provide:

Rule 7 contains provisions for a failure to comply with the Rules or directions. It states (insofar as applicable):

The material part of Rule 15 provides:

The relevant part of Rule 16 provides:

Rule 27, insofar as applicable, provides:

In BPP Holding Ltd and others v HMRC [2017] UKSC 55 (“BPP”) the Supreme Court, having referred to guidance given to the Tribunal by the Upper Tribunal (“UT”) and Court of Appeal on “the importance” of observing rules in contentious proceedings, observed, at [25]:

“Such guidance to tribunals on tax cases was given by Judge Sinfield in the UT in McCarthy & Stone. In para 43, after referring to differences and similarities between the CPR and the tribunal rules, in that case the Tribunals Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), he accepted that “the CPR do not apply to tribunals” but added that he did not “accept that the UT should adopt a different, ie more relaxed, approach to compliance with rules, directions and orders than the courts that are subject to the CPR”. The same view was expressed by Ryder LJ in paras 37 and 38 in the Court of Appeal in this case, including this: “I can detect no justification for a more relaxed approach to compliance with rules and directions in the tribunals”, and added that “[i]t should not need to be said that a tribunal’s orders, rules and practice directions are to be complied with in like manner to a court’s”.

Although the Tribunal (Judge Greenbank) in Janet Addo v HMRC [2018] UKFTT 530 (TC) (“Addo”) did not address the same issue as in this case (the issue in Addo concerned an application for a direction that HMRC produce documents that were not included in their LOD but referred to in a witness statement by an HMRC Officer), it was noted that the wording of Rule 27 suggested a relatively limited level of disclosure under which:

“57.

… it is open to a party to decide the documents on which it intends to rely or to produce at the hearing whether to support its own case or to disprove the case as put by the other party. If the relevant party chooses not to produce a particular document to which a witness refers that may well reduce the value of the evidence given by the witness and affect the strength of that party’s case overall. That is a matter for the Tribunal to assess and is a risk that the relevant party takes. While I accept [counsel for the Appellant’s] point that, if it is read in this way, the effect of the rule is that the level of disclosure under rule 27 is left largely in the hands of the disclosing party, in my view, on its terms, rule 27 does not require a party to disclose any other documents.

58.

That does not mean, of course, that that is the level of disclosure that a party ought to make. All parties are under a duty “to help the Tribunal to further the overriding objective” to deal with cases fairly and justly (FTR rule 2(4)). This obligation must extend to the level of disclosure made by the parties to other parties and to the Tribunal. However, if the level of disclosure made by a party under rule 27, whilst abiding by the strict terms of the rule falls short of the level that would be required to further the overriding objective, that is a matter that can be addressed by the making of orders or directions under rule 16 or rule 5(3)(d) whether on the application of the other party or by the Tribunal acting on its own initiative.”

In ClarkHill Ltd v HMRC [2018] UKFTT 111 (TC) (“Clark Hill”), the Tribunal (Judge Greenbank) considered an application, made by HMRC and opposed by the Appellant, to introduce new evidence which it was agreed was admissible and relevant. Having considered Rule 15(2)(a) and (b), and observing, at [18] that the case “clearly” fell within Rule 15(2)(b)(i), as the evidence had not been provided within the time allowed by a direction, Judge Greenbank, taking account of the “overriding objective” set out in Rule 2, admitted the new evidence and made an award of costs to the Appellant. At [20] he explained that:

“20.

In dealing with this application “fairly and justly”, I have taken into account the following issues.

(1)

The breach is significant. The initial hearing proceeded on certain assumed facts and the new evidence has been introduced at a very late stage.

(2)

The overriding objective is to deal with the case fairly and justly. That requires me to take account of all the available evidence in order to be able to come to a just and fair result. The form containing the option to tax [ie the new evidence] is clearly probative of an issue before the Tribunal and to exclude it would risk the Tribunal reaching a decision on incorrect facts.

(3)

There may be prejudice to [the Appellant] as a result. That prejudice can be mitigated to an extent by an award of costs in relation to the application.”

In relation to the admission of evidence, in R (Mobile Export 365 Ltd) v HMRC [2007] EWHC 1737 (Ch) (“Mobile Export”) Lightman J observed, at [20]:

“… The presumption must be that all relevant evidence should be admitted unless there is a compelling reason to the contrary.”

This observation of Lightman J was cited with approval by the Court of Appeal in Atlantic Electronics Ltd v HMRC [2013] EWCA Civ 651 at [31] (“Atlantic Electronics”). Atlantic Electronics was considered by Nugee J (as he then was) in HMRC v IA Associates Ltd [2013] EWHC 4382 (Ch) in which he said, at [35]:

“… that one starts with asking the question whether the evidence is admissible. It is admissible if it is relevant. It is relevant if it is potentially probative of one of the issues in the case. One then asks, notwithstanding that it is admissible evidence, whether [there] are good reasons why the court (or tribunal in this case) should nevertheless direct that it be excluded. As I have said in relation to the FTT’s powers, that is found in rule 15 which requires the FTT to find that it is unfair to admit the evidence.”

In HMRC v General Motors (UK) Ltd [2015] UKUT 605 (TCC) (“General Motors”) the UT (Henderson J, as he then was, and Judge Sinfield) considered whether the First-tier Tribunal had acted unfairly in admitting and relying upon documents produced during the hearing. Having endorsed the guidance of Lightman J in Mobile Export,at [108]. The UT continued, at [109]:

“We are also anxious to dispel any suggestion that the FTT Procedure Rules envisage a kind of evidential free for all where anything goes. Particularly in heavy and complex cases of the present type, it is important that directions for evidence should be given and adhered to on both sides, and that there should be no dispute about the evidential status of documents placed before the Tribunal. Otherwise, as the present dispute shows, there is much scope for misunderstanding and potential unfairness.”

I now turn to the issues.

I understand that this is the first time that this issue has arisen and the parties have been unable to locate any authority on point.

This could be because it is, in my experience, the usual practice of parties when seeking to rely on additional documents, which have not been included in their LOD, to make an application to do so. Indeed, where a party (frequently an unrepresented appellant) fails to produce a LOD in accordance with directions, the Tribunal will write to them warning that:

“If you do not provide a List of Documents, the Judge at the hearing may not permit you to use in evidence to support your case any documents other than those produced by the other side, and the bundles at the hearing may not include the documents to which you wish to refer.”

However, the issue before me is not whether the parties should have adopted the usual practice, but whether, as a matter of law, a party can rely on documents that have not been included in their LOD.

Mr McNall, for Burton, contends that it is clear from the Directions that the LOD must include all documents that that party intends to rely upon or produce in connection with the appeal.

For HMRC, Mr Abernethy contends that the Disputed Documents, which were properly exhibited to signed witness statements filed and served in accordance with the Directions, are admissible. As such, he says, it would be incompatible with the overriding objective for the scope of a witnesses’ evidence to be restricted only to those documents included in the LOD and exclude evidence that was either not available or the relevance of which was not appreciated at the time the LOD was produced. Additionally, relying on the comments of the Tribunal at [57] in Addo and [20] in Clark Hill,he contends that the exclusion of the Disputed Documents would “reduce the value of evidence” given by the witnesses and risk the Tribunal “reaching a decision on incorrect facts”.

Having considered the Directions, particularly directions 1 and 2, it is clear that it is direction 1 that provides for the production of documents that a party intends to rely upon or produce in connection with the appeal. There is no provision or reference to documents in direction 2 which refers only to the provision of witness statements and does not mention exhibits to those statements. Although direction 4 does refer to exhibits to witness statements, there is nothing in that direction to indicate whether such exhibits can comprise new evidence or whether they should be restricted to the documents in the LOD.

In Addo the Tribunal observed, at [57], that Rule 27 did not require a party to disclose any other documents than those in its LOD and, at [58], that should any further documents be required to further the overriding objective, it could be addressed by making directions under Rule 16 or rule 5(3)(d). Although the Tribunal in Addo referred to such directions being made on the application of the “other party or by the Tribunal acting on its own initiative”, it is clear from Rule 5(3)(d), which provides that the Tribunal may by direction “permit”, ie grant permission to a party to provide documents or information, that a party may make an application to admit new evidence in support of its own case.

As such a party would have already set out the documents upon which it intended to rely or produce in proceedings under Rule 27 in its LOD, Rule 5(3)(d) must refer to additional documents or material, such as that which was not available or the relevance of which was not appreciated when the LOD was prepared. From this I take that before a party can adduce and rely upon new evidence not included in its LOD, it must first obtain a direction to that effect from the Tribunal.

Similarly, for consistency if nothing else, the same must also be the case where the admission and reliance on new evidence is sought where the requirement to provide a LOD is contained in directions. This is particularly so in the present case given the similarity between Direction 2 of the Directions and Rule 27. Both require a party to send or deliver to the other party and the Tribunal a list of documents in its possession or control which that party intends to rely upon or produce in the proceedings.

In the present case, contrary to my conclusion that they were required to do so, HMRC did not apply for a direction to rely on the Disputed Documents but included these as exhibits to the statements of its witnesses. As such, HMRC have failed to comply with the Directions.

Neither Rule 27 nor the Directions contain any provision for a sanction for non-compliance. It is clear from Rule 7(1) that an irregularity resulting from a failure to comply with the Rules or a direction does not of itself render void the proceedings or any step taken in them. Having found that HMRC did, in fact, fail to comply with the Directions, it is necessary to consider what sanction (if any) is appropriate, as the possibilities in Rule 7(2) range from waiving the requirement to comply, restricting a party’s participation in proceedings to striking out a party’s case.

Mr Abernethy contends that, in the absence of any clear statement in the Directions, Rules or any reported authority that it was impermissible for a witness to exhibit documents to their witness statements which had not been included in the LOD, the breach should be waived and the Disputed Documents admitted.

As they failed to comply with the Directions, Mr McNall contends that HMRC should be restricted from relying on the Disputed Documents and any mention of them be removed from the witness statements.

However, it may not be necessary to reach a conclusion on this issue as what action (if any) to be taken as a result of HMRC’s non-compliance with the Directions is clearly subject to the outcome of the Cross-Application.

Mr McNall contends that if HMRC wish to rely on Disputed Documents they should have made an out of time application to amend their LOD, together with reasons explaining why the Tribunal should exercise its discretion for them to be admitted applying the ‘Martland’ criteria. However, I agree with Mr Abernethy that an application, such as the Cross-Application, is sufficient for this purpose and note that there was no application to amend a LOD in Clark Hill, Atlantic Electronics or General Motors.

It is accepted that the Disputed Documents are relevant. Indeed at one point in his submissions Mr McNall referred to them as being “obviously” relevant. As such, they are not only admissible but there is a presumption that, as relevant evidence, they should be admitted “unless there is a compelling reason to the contrary” (see Mobile Export at [20] and Atlantic Electronics at [31]).

Mr McNall accepts that is the case but contends that there are compelling reasons why the documents should not be admitted, including in particular that:

Essentially all the compelling reasons advanced by Mr McNall concern the fairness of proceedings. Something recognised by HMRC in their guidance ARTG8395 – First-tier and Upper Tribunals: preparing for the tribunal: preparation of statement of case which states:

“The purpose of the statement of case is also to tell the customer what HMRC’s case is. So it needs to be comprehensive as the customer will rely on it to prepare their case for the tribunal, including the list of documents. If it is not, HMRC may be depriving the customer of a fair opportunity to assemble evidence in support of their appeal.”

In addition, Mr McNall refers to HMRC’s conduct in relation to these proceedings, which he contends, particularly in the light of HMRC’s own guidance, is unfair. This is, he says, especially the case in relation to Exhibits MT4, MT5, MT6, MT7, JR1, JR5 and JR6 which were not mentioned in HMRC’s statement of case. Mr McNall also contends that there are issues regarding the availability of Exhibits JR5 and JR6 at the time HMRC provided the LOD given the apparent reference to them being exhibited to the witness statements of EA Officer Jacqueline Berry whose witness statement was included as ‘Document 7’ in HMRC’s LOD. Clearly this would be a matter for cross examination at the substantive hearing and, were HMRC found to have acted unreasonably in relation to these exhibits, could result in a possible application for costs by Burton.

However, having carefully considered all of the circumstances of the case; the submissions of the parties; and taken into account the overriding objective, I consider that, provided Burton is given an opportunity to respond to them, HMRC should be permitted to adduce and rely on the Disputed Documents. If not, as Judge Greenbank observed in Clark Hill, it “would risk the Tribunal reaching a decision on incorrect facts”.

In reaching that conclusion I have taken into account that it is accepted that the Disputed Documents are relevant; that the proceedings are at a relatively early stage and no hearing has been listed; and the fact that, as mentioned above (at paragraph 14), directions have been issued staying the proceedings to enable the parties to provide the Tribunal with their agreed proposed case management directions (or, in the absence of agreement, their own proposals) for the further progression of the case which should include provision for Burton to respond to the Disputed Documents.

Notwithstanding HMRC’s failure to comply with the Directions I have, for the reasons above, concluded that the Disputed Documents should be admitted.

The Application is therefore dismissed and the Cross-Application allowed.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.