Bradley Strauss v The Commissioners for HMRC

for the year 2002/03 to the year 2013/14 (February 2003 to October 2013), he was not in the UK and was not actually responsible for the income derived;

for the years 2013/14 and 2014/15, he was not in the UK but records still existed through a UK company which was still in existence;

the income derived was the responsibility of another party – a limited company based in Greece, which had made proper representations to the relevant tax authority, and the income was not applicable to him;

that company had been put into liquidation in early 2017 and the evidence that he required in order to progress the appeals was no longer available to him;

the documentation relating to the income did not belong to him and therefore under the Taxes Management Act 1970 and existing case law, he was not required to keep it as it was not under his control and ownership;

the time taken by HMRC to deal with outstanding matters had been time-sensitive in this respect; and

he had not been able to know HMRC’s case against him until HMRC served their statement of case in November 2017.

Direction 1, which stipulated that, by no later than 14 days from the date of the directions, Mr Strauss was required to send or deliver to the FTT certain documents – namely, a document stating his address and his grounds of appeal against HMRC’s decision compulsorily to register him for VAT and a copy of that decision – or provide written confirmation that he no longer wished to pursue that appeal;

Direction 2, which stipulated that, by no later than 14 days from the date of the directions, Mr Strauss was required to send to the FTT either (i) a copy of two notices of appeal against VAT penalty determinations which he claimed to have sent to the FTT previously, together with an acknowledgement of those notices by the FTT, or (ii) new appeals against those penalty determinations or (iii) written confirmation that he no longer wished to pursue those appeals;

Direction 4, which stipulated that, by no later than 3 August 2018, Mr Strauss was required to send to the FTT and HMRC a list of documents on which he intended to rely at the substantive hearing and send to HMRC a copy of any document on that list which had not already been provided to them, and confirm to the FTT that he done so;

Direction 6, which stipulated that, by no later than 31 August 2018, each party was required to deliver its witness statements to the other party and notify the FTT that it had done so; and

Direction 7, which stipulated that, by no later than 7 September 2018, each party was required to send to the FTT and the other party certain information in relation to the substantive hearing such as the expected number of attendees, the names of all witnesses, the anticipated duration of the hearing and dates to avoid.

he apologised for the delays which had occurred in the provision of information which had been required by the directions of 22 May 2018 and said that “this was mainly due to a severe illness suffered by the Appellant over the past 6 months, during which time the Appellant was in no state to deal with this matter”;

he provided certain information;

he stated in relation to his outstanding witness statement that “[it] is expected to be finalised and issued with [sic] 28 days of this application”;

he asked for an extension of time in order to comply with those directions in respect of which he had not yet complied;

he asked for “all determinations issued” by HMRC to be struck out on the basis that they had been issued out of time;

he stated his belief that a proper appeal had now been submitted in relation to the compulsory registration for VAT;

he notified the FTT that he was expecting to undergo a procedure in early March and would be unable to travel for 8 weeks after that date and that the 8-week period might need to be extended; and

he provided his dates to avoid for the hearing but the dates when he was available all coincided with the dates which HMRC had previously notified the FTT that they were not available for and which had been already notified to Mr Strauss.

Mr Strauss had made no attempt to comply with Directions 1 and 2 of the Directions of 22 May 2018 – compliance with which was required on or before 5 June 2018 – until September 2018;

Mr Strauss had given ill-health as the reason for his non-compliance but had not explained the nature of, or evidenced, his ill-health and that his ill-health had not prevented him from filing his application for permission to appeal on 17 July 2018;

Mr Strauss had not yet complied with Direction 1(a) or Direction 2, or taken steps to comply with Direction 1(b);

HMRC were not out of time to comply with Direction 3 as the non-compliance by Mr Strauss with the above Directions meant that time had not yet started to run in relation to that Direction;

Given Mr Strauss’s failure to comply with Directions 1 and 2, “compliance with directions 4-9 is suspended for the time being” and the FTT had been wrong in its letter of 15 September 2018 to require compliance with Directions 4, 6 and 7; and

unless Mr Strauss complied with Direction 1(a), and took steps to comply with Direction 1(b), by 24 October 2018, his appeal against the compulsory VAT registration would be struck out and, unless Mr Strauss complied with Direction 2 by 24 October 2018, the FTT would not accept that the various appeals lodged by him included an appeal against HMRC’s decision of 6 September 2016, with the result that Mr Strauss would be able to pursue such appeal only by lodging a new notice of appeal with an application for permission to appeal out of time, which application would be unlikely to succeed.

that he had assumed that, when he had applied for permission to appeal the decision of Judge Bailey of 22 May 2018, that application “would automatically set aside the directions awaiting the outcome of the appeal”;

as regards the comments made in relation to his ill-health, he explained in detail the nature of his ill-health and said that he “would in future be more informative as to illness issues” and that he had managed to submit his application for permission to appeal despite being bedridden and unwell only by “a major amount of willpower” because the application was so time-sensitive;

that, in his view, HMRC had been insufficiently forthcoming in relation to the nature of their case against him and that the “Law of Natural Justice” and human rights law meant that he was entitled to know their case before outlining his own; and

that he was appealing against the decision to refuse his application made on 17 July 2018.

it was prepared to accept that Mr Strauss had now provided a copy of the VAT registration against which he had appealed and that he had attempted to provide the grounds of appeal;

although one of those grounds was unsatisfactorily expressed, it was prepared to overlook its doubts on that score as long as HMRC did not object and therefore to allow the appeal against the compulsory VAT registration to proceed;

it noted that Mr Strauss now appeared to accept that he needed to lodge applications with the FTT to be allowed to appeal the VAT penalties out of time;

it rejected Mr Strauss’s application to appeal against the VAT penalty determinations out of time – it did so on the basis that the application was inadequate as it did not enclose copies of the determinations dated 5 September 2016 against which Mr Strauss was appealing, it did not explain his grounds of appeal and it did not explain why the appeal had been made late;

it pointed out that, if Mr Strauss wished to lodge another application to appeal out of time against the VAT penalty determinations, he should rectify the omissions set out above and ensure that his application had a cross-reference to the appeal numbers for the existing proceedings;

it directed that, unless either party objected within 14 days, the appeals which were currently outstanding (and which it set out) would be consolidated;

it directed HMRC to comply with Direction 3 in the Directions of 22 May 2018 within 14 days and suggested that they might wish to amend their statement of case to deal with recent changes to the outstanding appeals;

it directed, amongst other things, that:

it said that it did not accept that the evidence which had hitherto been provided by Mr Strauss in relation to his ill-health served to justify his earlier failure to comply with the Directions because no medical evidence had been produced despite the suggestion from the FTT that it should be produced and was inconsistent with Mr Strauss’s ability to file his permission to appeal application during the period in question and stated

“This may count against the Appellant if there are further failures of compliance and the Appellant is on notice that he should comply with all tribunal directions no later than the due date. Further lenience on this may not be granted”; and

it said that it interpreted Mr Strauss’s letter of 12 October 2018 as containing an application to appeal against the refusal of his application for summary judgment in his favour in respect of all his appeals and it refused permission to appeal on the basis that Mr Strauss had not provided any arguments to suggest that there was an arguable error of law in that decision.

Mr Strauss had failed to submit his witness statement despite the terms of the unless order made on 1 March 2019;

he had not written to the FTT to explain why he had failed to do so or provided any response whatsoever to the FTT in respect of the unless order; and

in any event, the FTT (Judge Mosedale) had concerns about Mr Strauss’s intentions to progress this appeal,

as he had previously informed the FTT and HMRC, he underwent a procedure in early March and therefore was too ill to attend to his emails for a little over eight weeks after that; and

over this same period, his email programme failed.

Direction 3: Not later than 17 June 2022, the parties shall make any applications to the Tribunal for permission to file additional or amended witness statements that they consider to be appropriate.

Direction 4: Not later than 17 June 2022, the parties shall provide to the Tribunal and each other their listing information for a listing period from 1 July 2022 to 31 October 2022.

Direction 5: HMRC shall provide to the Appellant and the Tribunal an electronic document bundle including all the documents on which the parties intend to rely and witness statements not later than 30 days before the re-scheduled hearing date.

dismiss the application made by Mr Strauss on 2 February 2023;

determine the application made by Mr Strauss on 6 June 2022 on the papers; and

re-issue updated directions 3, 4 and 5 of the Directions of 22 May 2022 to bring matters to a substantive hearing.

The parties are not to copy or send any emails or other correspondence relating to any complaints by the Appellant about the Respondents’ conduct to the Tribunal as the Tribunal is not part of HMRC or their complaints procedure and has no jurisdiction in relation to matters of the Respondents’ conduct.

Within 14 days of the date of this letter, the Respondents shall provide to the Tribunal and the Appellant a draft timetable setting out what matters will be dealt with on each of the 10 days (broken into separate periods as necessary) that they say is required for the hearing of this appeal.

As, on enquiry by the Tribunal, it appears that the Government of the Republic of Peru has not given permission for a person to give evidence in tribunal proceedings by video from its territory, the Appellant shall, within 14 days of the date of this letter, provide to the Tribunal and the Respondents the dates in the period 1 April 2024 to 30 November 2024 when he will be available to attend a hearing of up to 10 days in the United Kingdom.

I refer to Tribunal’s letter of 17/5/24 and Judge Sinfield’s comment. I am somewhat surprised and concerned regarding the response and I would apologise because it seems that my previous email has been completely misunderstood. I appreciate that may be because of the manner by which I responded, but I assumed that my email would have conveyed that (1) I was quite prepared to provide a detail of the dates, (2) I was clearly under the impression I had complied and (3) that I was able to provide the report.

I would therefore like to clarify my previous response as follows;

It is evident that I have been ill with covid on a number of occasions and, to progress this case, I even undertook a hearing, whilst being quite ill with Long covid, as I considered that delay due to my illness could be viewed as me trying to delay and so I made sure that, despite my illness I attended. I hope that conveys my commitment.

I would also point out that it is the case that standard covid, that puts one to bed, with severe conditions, on a number of occasions, no longer exists and has not existed for some years now, because the strain is now virtually a flu at it’s worst. Therefore for me to be continually coming down with covid can only mean one thing, that it is Long covid, it is clear that is my ailment and has been for some time.

I have been diagnosed with it, but it was 2 years ago, I am still suffering, I know what it is and why, so I don’t need it re-diagnosed regularly and I have expressed to Tribunal that it is covid and, I apologise because perhaps I could have explained that it was Long Covid (because that is what it really is) but I thought it easier to say it was covid, because that was easily understandable. That was a mistake by me, in assuming that the connection would be made, which I accept and, in my last email, I felt it right to fully explain my issues and fully intended to provide a report to show that.

I would also advise that I am representing myself and do not have extensive knowledge and understanding as to how Tribunal works and sometimes I say things in a manner that I consider is appropriate but which a Judge may not. That is purely my inexperience at dealing with matters and I would ask that, where a Judge considers that I am not saying things in the right way, that they give me a bit of leeway on the basis that I am not a legal representative and sometimes cannot properly understand and appreciate how matters should be represented.

I reiterate, that does not mean I am trying to delay, all it means is that my wording may not be the right wording, because of inexperience and I apologise for that, but there is little I can do about it. All I ask is that any Judge reviewing my paperwork, takes that into account.

I have a medical report, but it is 2 years old. I was trying to get a more up to date report and also one which was signed (my original report wasn’t).

That is taking time and I accept that sometimes we can’t always get what we want when we want it.

There are 3 reasons why I have not yet provided the medical report.

I have tried to contact my doctor to get an updated and signed report. At present I have been unable to contact my Doctor (he was based in Thailand, but seems to no longer be in Thailand so I am trying to locate him). All I have is my original medical report from 2022, which I will now be sending under separate cover, but it contains (1) information that I do not want anyone to see and has no relevance to this case and (2) I was hoping to get an updated report from my Doctor, which I would ask him to put in purely the matters relating to Long Covid.

I was also unaware of the timescale that this was required in. I appreciate that I had to get it, but (a) I can’t get another report at present and have no idea when that will change, so what am I supposed to do and (b) I was waiting for that report and was hoping to get it fairly quickly, but it hasn’t arrived.

I have been extremely unwell again, because of my (Long) covid.

I have therefore decided to use the old report, from 2 years ago, that was sent to me, by my Doctor, that report was for me alone and to assist me in dealing with another separate matter, but I have decided, considering the length of time it is taking for me to get another report, to use that one and I will send it under separate cover. I trust this now resolves that issue, please confirm.

Travel to the UK

Firstly, I would comment that I am not ‘unable to travel to the UK’ and have not made that claim. What I have stated is that such a trip would be extremely difficult for me to do in one go. That is entirely true. I am quite prepared to go to the UK to undertake this procedure but it will have to be done in stages and that will take me time. That will, in my opinion, put an unfair burden upon me, either I will have to travel in one trip, in which case, I will probably not be able to attend the hearing because I will be too tired and ill to do so, in which case that is completely counter productive, as the hearing would be adjourned or alternatively, I will have to travel in stages, in which case, that will put an unfair burden upon me. That was my point, not that I couldn’t travel but that asking me to travel to the UK was an unfair burden and there were other ways to deal with the matter.

I also asked if this Tribunal could be delayed until after I had completed my contract in June 2026, considering that is only 6 months after the period in which Judge Sinfield wanted me to attend and this matter having been ongoing for over 10 years now, an additional six months, to achieve the proper outcome, in my opinion, does not constitute an unreasonable request. I apologise to Judge Sinfield if, in his eyes it did, it was never intended in that manner.

I also considered that I made an application that could solve the problem and issue. I now appreciate, due to Judge Sinfield’s comments, that my wording within the application was incorrect and I thank him for pointing that out and appreciate that the application was wrongly made. That was purely down to inexperience on my part and I again apologise for my inexperience.

The application was made purely to speed up the process, not to slow it down. That was my reasoning for making it and, although Judge Sinfield has determined that the wording is clearly wrong, the intentions behind the wording are, in my opinion, valid and in compliance with one of the main tenets of Tribunal. Again I apologise for using the wrong wording.

My understanding of that application was that, if what I said in my last representation is true, that would actually resolve this whole case very quickly, the relevant Judge would issue the appeals and the case would finalise. That was my goal, it is still my goal, a speedy resolution and (obviously) a decision my direction.

Giving dates

Again I apologise, maybe I didn’t make my position properly clear on this point. I am quite prepared to provide dates and indeed have done so below. All I was waiting for was the relevant country to which I could travel to arrange a proper hearing. That has now been supplied, so I can now provide dates. I clearly didn’t make that clear to the understanding of Judge Sinfield, so I trust that he now understands, my comments were not made to delay, but to find out which country I could access and that would dictate the dates I could choose. I have now advised of the dates, so I am now assuming that I am in compliance, albeit I appreciate later than he would have wanted, but I do consider there was a reasonable reason for that as I needed to understand where to go so in order to set the dates.

I would also point out that this hasn’t delayed anything, there is now plenty of time between now and the dates I have suggested that mean that (1) I am now in compliance and (2) that there is no delay in that compliance or hearing.

Again I apologise, it was my own inexperience that meant that I didn’t make it clear that I was waiting for Tribunal to confirm which country I could attend to undertake a Zoom hearing, so I would again ask that some accommodation of that inexperience is allowed.

I am happy to proceed in that manner and that would mean that my long covid wouldn’t be any effect, as the travel wouldn’t be as extensive. I now try to travel mainly by train (sleeper if possible) which means I can rest as I travel and I find train travel to be so much less wearing on me, so it is certainly the best type of travel that I can undertake and that is my preferred method of travel considering my condition.

I now appreciate that my previous application was wrongly made, as Judge Sinfield has pointed out. I am therefore withdrawing that application accordingly, so that there can be no doubt of my commitment to resolving this issue in a speedy manner.

As to my comment regarding the application in my email of 2/2/24, in my response to that email, I was responding to points made in a letter to me regarding the case, I wasn’t making an application. The application as actually made, by me, in my mind, was made as a quick resolution and, although I appreciate that Judge Sinfield has determined that the wording was wrong and I have withdrawn it for that reason, I don’t still don’t consider that the meaning behind it (of speeding up the process and reaching a quicker resolution) was in any way a wrong consideration.

Confirmation of dates

I have again discussed the matter with my employers and they have determined that they will extend my contract until 31/7/26, but allow me to take off the whole of December 2025 (this is a slow month anyway for them, so I am actually doing them a favour in taking off that month). Now that the US has been confirmed as a suitable country, I am therefore confirming that I can travel to the US, undertake a Zoom hearing for the period 8/12/25 (Monday) to 19/12/25 (Friday) to allow 10 days of hearing, in order to progress this matter and in compliance with Judge Sinfield’s determination. I will spend the week beforehand travelling and recovering in order to be in the best condition to undertake the hearing as I am sure no party wants a further delay.

I would add that this has really inconvenienced me, as it will now mean that I cannot spend my birthday in 2026 (on 14th July) with my family, because of the extension of the contract, showing my commitment to resolving this issue within Judge Sinfield’s determined timescale.

I was waiting for the detail as to where I was required to travel in order to ensure compliance and I would point out to all parties that this email trail has not delayed anything from what Judge Sinfield has determined previously. Considering that I am now in 100% compliance with Judge Sinfield’s determinations and that I was purely waiting for that information (which country it was OK to give evidence from) on the basis this is now 100% compliance with Judge Sinfield’s determinations and has not delayed anything, I would therefore respectfully ask that the case be reinstated.

I would add that the reason why I waiting for confirmation of which country could be used was because I had no idea whether any of them would be suitable. A closer country would allow for a quicker travel and an earlier hearing, but as the most distant country has now been confirmed as being the only country allowable, I need more time and that means I need to negotiate with my employers the timescale, which I have now done and confirmed. I apologise for not making this clear in my last email, but I trust that all parties appreciate and understand my methodology and thought process and that I was working towards the dates rather than trying not to comply with them and this was a process that needed confirmation before I could do so.

Response time

I am concerned regarding the timetable of these matters as stated in Judge Sinfield’s response. I refer to his 2nd paragraph of the 2nd page of the letter. It seems to me that someone is not properly informing Judge Sinfield of the facts and perhaps this paragraph has clouded his judgement, I too would be pretty annoyed if I expected someone to respond by 16/4/24 and they responded on 22/4/24. The only issue is that I actually responded on 15/4/24 (not 22/4/24) and I have a receipt to prove it, which is attached. So I complied entirely with Judge Sinfield’s timescale of response of 14 days (in fact I was a day early), so my illness actually didn’t stop my compliance as seems to be suggested, I actually complied with the timescale, despite the fact that I was ill and, as I complied I didn’t consider I needed to tell Tribunal why I wasn’t complying or ask for more time to comply, as has been suggested.

Furthermore, I do not consider that I needed to provide any evidence of reasons for non compliance with a response timescale nor any request for additional time when I have complied with it, my comments were purely as to why I complied within 13 days and not within 2, but I would respectfully point out that either timescale was compliance.

I now consider that I have complied with all of the determinations and timescales, so I would therefore ask Tribunal and Judge Sinfield to reinstate the appeal accordingly.

As to the balance of the letter, I would comment as follows;

Long covid

That was my mistake and I apologise to Tribunal for it. I (wrongly) considered that it should have been evident that I was and am suffering from Long Covid. My Doctor’s report shows that to be the case. I will try not to make that mistake in future.

I would also suggest that this also is somewhat inexperience on my part. I was under the impression that when I advised the Tribunal of the truth and that truth was unchallenged that I had time to provide further evidence. I also had reasons as to why I didn’t want to provide the original report, it was my mistake in assuming I would be able to obtain a newer report within a very short timescale. However, I was trying to comply in all aspects.

I did make it clear, in my last email, that I was intending of getting hold of evidence, I just haven’t been able to, but I have every intention of doing so and will be sending my original report as evidence now.

Website

As to the website, it states that the recommendation should be to travel by air ambulance. I cannot do that and I am unable to travel extensively and not feel very ill afterwards. That I cannot help, but I trust this email shows my commitment to this case and its speedy resolution.

Credibility

As to Judge Sinfield’s comments regarding credibility, I would comment that I know my own body, I know what I can do and what I cannot.

I know exactly what I am capable of and that is because I have done it, I have seen the consequences, I have undertaken the kind of trip that was being expected and been very ill afterwards for weeks. It’s not something I would ever consider doing again.

My offer of 2026 was to take away all issues, I would have travelled to the UK to undertake a hearing, but as that is now not required, I won’t need to do it.

I trust that Judge Sinfield now understands my reasoning for writing as I did and I would add that it seems that Judge Sinfield’s views of my previous email was that it was written as delaying tactics and I trust that he now appreciates why I wrote in that fashion and that it certainly was the complete opposite, I wanted a quick resolution, rather than a delayed one.

I therefore also trust that Judge Sinfield will now appreciate that I am never writing emails to delay anything, all I am looking for is for a quick resolution and a way to take matters forward speedily, so as to comply with Tribunal Directions, that has always been my objective and I appreciate that he may consider otherwise, but I trust I have now shown that to be the case and explained myself fully and I apologise for not making such position clear enough previously, which has clearly resulted in him considering that my email was a delaying tactic and incompliant and I would again ask that he view my emails as always trying to take matters forward and that if, in the future, they come across as anything else, that is purely down to my inexperience in this procedure and my using of a manner of words that may not be conveying the true message, rather than an assumption that I am trying to delay anything.

Reinstating

The decision as to whether to reinstate is, in my opinion, taking into account the above, a decision that has to be made in the circumstances, I appreciate that is a decision for Judge Sinfield, but I trust my emails explains sufficiently as to why the previous email was written as it was written and that it was never written to delay or be non-compliant and I also trust that Judge Sinfield appreciates that his determinations are now complied with.

If Judge Sinfield requires any further information in order for him to conclude that reinstatement is the most just course, then I am happy to provide it and he can detail to me what he wants to know and I will comply accordingly.

I therefore make formal application to have the appeal reinstated.

Further to the Tribunal’s request of 3 July 2024, these are the Respondents’ submissions on:

The Appellant’s application for reinstatement of the appeal, and;

The Appellant’s proposed hearing dates.

Chronology

In a letter of 2 April 2024 the Tribunal directed that the proceedings would be struck out without further reference to the parties unless, within 14 days, the Appellant met one of three conditions, which were to:

Confirm he would attend the Tribunal in London for a 10 day hearing on dates specified by him, in the period between 3 June 2024 and 19 December 2025, or;

Consent without reservation for the appeal to be dealt with on the papers, or;

Provide an alternative practical way to bring the proceedings to a conclusion. (“The Directions”).

The Appellant replied to this letter in an email dated 15 April 2024 (“The Response Email”) which was within the 14 day deadline given by The Directions.

The Tribunal informed the Appellant that the appeal had been struck out in a letter dated 17 May 2024 (“The Strike Out Letter”).

The Appellant made an application for the appeal to be reinstated in an email dated 22 May 2024 (“The Application Email”).

Preliminary

The Respondents note that in The Response Email and The Application Email the Appellant covers a range of issues. In these submissions the Respondents focus on the particular matters set out in paragraph 1

The Respondents hope that this is within the spirit of the sentiments expressed by Judge Sinfield at the hearing on 15 September 2023. However, for the avoidance of doubt, where HMRC have not directly addressed assertions made by the Appellant this should not be taken as agreement with them.

Appellant’s application for reinstatement of the appeal

Did the Appellant comply with The Directions?

The Appellant has not confirmed he will attend a hearing in London, and he has not consented without reservation for the appeal to be dealt with on the papers. Therefore he did not meet condition one or two of The Directions.

The Respondents submit that the Appellant also did not meet the third condition, as he did not provide “…an alternative practical way to bring the proceedings to a conclusion” by 16 April 2024.

In The Response Email the Appellant made an application, referred to in that email as Application 2, for the Tribunal to accept the contents of his witness statement as fact and allow his appeal. As noted in The Strike Out Letter, this would constitute a conditional acceptance of the proposal to hear the appeal on the papers, and therefore does not meet the third condition of The Directions.

In The Response Email, the Appellant asks about his ability to give evidence via video from four locations. He states that, once he has received an answer, he can enter into logistical discussions with his employer and his witnesses. As also noted in The Strike Out Letter, this does not meet the third condition of The Directions.

Therefore, although The Response Email was submitted in time, its contents did not comply with The Directions.

Application for reinstatement

From The Application Email the Respondents understand that the Appellant submits that the appeal should be reinstated because:

As an unrepresented Appellant he does “…not have extensive knowledge and understanding as to how Tribunal works and sometimes I say things in a manner that I consider is appropriate but which a Judge may not.”;

“I was clearly under the impression that I had complied”;

“I was quite prepared to provide a detail of the dates”;

Following his The Application Email he has now fully complied with The Directions, and;

None of his actions were intended to cause a delay to proceedings and, if the hearing is listed for December 2025, have not caused any delay.

[HMRC set out the approach to an application for reinstatement derived from Martland v HMRC [2018] UKUT 0178 (TCC) (‘Martland’) and Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) (‘Chappell’)

The Respondents will now address the Appellant’s grounds of appeal in turn.

Ground a – the Appellant is unrepresented

The Respondents submit that The Directions were perfectly clear. It is agreed that the Appellant has not met the first two conditions, which leaves the third condition to consider. This condition was that the Appellant “provides an alternative practical way to bring the proceedings to a conclusion.”

The Respondents submit that this is not a direction which requires legal knowledge or experience to understand. It is written in clear and plain English. Likewise, the timeline for compliance was plain from the directions.

Therefore, the fact that the Appellant is unrepresented should have caused no impediment to complying with The Directions.

The Respondents submit that the Appellant should also have been well aware of the consequences of not complying with The Directions. As detailed below at paragraphs 47 to 53 this appeal has previously been struck out and, following an appeal by the Appellant, reinstated. Therefore the Appellant cannot claim that, as an unrepresented applicant, he was unaware of the need to comply with directions from the Tribunal, or of the consequences should he decide not to comply.

Ground b – the Appellant believed that The Response Email complied fully with The Directions

Rather than providing a practical way to bring the proceedings to a conclusion, in The Response Email the Appellant states:

That he is in the process of agreeing to a period of leave in 2025 with his employers;

That during this unspecified period he will travel to one of four locations;

That in that location, he will stay in a hotel, where he could attend a hearing via video dial in.

In the same email, the Appellant asks the Tribunal about his ability to give evidence from four countries.

The Respondents submit that this information, and this question, is not a way to bring the proceedings to a conclusion. No specialist legal knowledge or experience is necessary to know that the limited information provided and the question asked do not constitute a practical way to bring the proceedings to a conclusion.

In The Application Email the Appellant explains that the questions to the Tribunal and third parties were to enable him to make some decisions. These, in turn, allowed him to make the proposal that he attend a hearing via video, while in a hotel room in the USA. This proposed alternate way to proceed was not provided until The Application Email.

The Appellant was, by his own admission, unable to make that proposal until he had received the Tribunal’s response to his question. This means that, prior to receiving that answer, he was not in a position to make the proposal. Therefore he must have known that The Response Email, which posed the question, did not comply with The Directions. Again, no specialist legal knowledge or experience is needed to be aware that, if you need answers to questions in order to make a suggestion, the question(s) cannot constitute that suggestion.

The Respondents therefore submit that the Appellant cannot have been under the impression that he had complied with The Directions when he sent The Response Email.

Ground c – the Appellant was prepared to supply dates for a hearing

The third condition of The Directions does not direct that hearing dates must be provided, although they do not preclude the Appellant from supplying them as part of bringing proceedings to a conclusion. In the Application Email the Appellant states that he was “… quite prepared to provide a detail of the dates” in “…my previous email” (The Response Email). In fact, dates were not provided until The Application Email. The Respondents submit that it is what the Appellant did, rather than what he was prepared to do, which is relevant.

In The Application Email the Appellant states that he needed a confirmation of which country or countries he could give evidence from in order to provide dates on which he could attend a hearing. In his own words: “A closer country would allow for a quicker travel and an earlier hearing, but as the most distant country has now been confirmed as the only country allowable, I need more time and that means I need to negotiate with my employers the timescale, which I have now done and confirmed.”

From this statement, it would seem clear that, on 15 April, the Appellant was not prepared to provide dates, as he could only provide dates after receiving information from the Tribunal and the subsequent discussions with his employers.

Ground d – the Appellant has now complied with The Directions

In The Application Email, the Appellant has stated that, having now provided a proposed way to proceed along with a potential hearing date, he has now complied with The Directions. However, he did not make an application for an extension to comply with the directions, nor does he provide an explanation for the delay in complying.

In addition, for the reasons given below when addressing the Appellant’s proposed hearing dates, the Respondents submit that the Appellant has still not provided a practical way to bring proceedings to a conclusion, and has therefore not complied with The Directions.

He states that his delay in providing his available dates for a hearing was due to needing to wait for the Tribunal’s answer to his question.

From the Appellant’s statement in The Application Email he contends that as the USA was the furthest potential destination it would result in the longest travelling time and the latest hearing window. Therefore, had he so wished, the Appellant could have spoken to his employers prior to sending The Response Email and provided dates for attendance from the USA in The Response Email. While he may have been able to later provide additional, earlier, dates depending on the Tribunal’s answer, there should not have been a barrier to providing the ‘furthest and latest’ dates. In addition, the third condition of The Directions did not specify that dates needed to be provided, just a practical way to bring proceedings to a conclusion.

This also does not address the fact that, in addition to not providing potential hearing dates, the Appellant failed to provide a practical way to bring the proceedings to a conclusion in The Response Email.

The Respondents do not accept that the Appellant has now complied with the Directions and, even if he had, this does not excuse his initial failure to do so.

Ground e – the Appellant has not caused a delay to proceedings

The Appellant has contended that, following The Application Email, he has now complied with the directions, and that if the hearing is to be listed in December 2025, there will have been no material delay to proceedings caused by his initial failure to comply.

As detailed below, the Respondents do not believe that providing a single window of availability, at the end of a listing period, for a hearing in over 17 months’ time, and without confirming that all witnesses for the Appellant are able to attend, is a practical way to bring the proceedings to a conclusion, or at least not one within a reasonable time frame.

That aside, the fact that the Appellant contends that he has now complied with the directions – which the Respondents do not accept - would not excuse his initial failure to comply. The Respondents submit that compliance with Tribunal directions is an important part of the Tribunal process, and the Appellant has offered no reason for his failure to comply.

Applying the three stage process

Rule 8(1) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (‘The Rules’) states that proceedings will be struck out if the appellant fails to comply with a direction that stated that failure to comply would lead to the striking out of the proceedings. The severity of this sanction reflects the severity of the failure.

For the reasons set out above, the Respondents submit that the Appellant failed to comply with The Directions, and that this failure to comply is both serious and significant.

The Respondents do not agree that the Appellant has rectified this failure, and submit that his failure to comply is ongoing.

The Respondents submit that the Appellant has failed to give a reason for this serious and significant failure to comply.

For the reasons set out above, the Respondents submit that the Appellant’s lack of representation was not a reason for his failure to comply, and that he could not have believed that he had complied with The Directions when he submitted The Response Email.

The Respondents note that this appeal has been struck out previously as a result of the Appellant’s failure to comply with Tribunal directions.

In his decision dated 21 February 2020 (“The Decision”) Judge Beare found (paragraph 18) the Appellant’s “…defaults to be both serious and significant, both in terms of number and in terms of the period over which they occurred” and noted that, in addition to the failures which were being considered in The Decision “the Applicant has repeatedly failed to comply with various procedural aspects of the appeal.”

The Respondents submit that the Appellant’s failure to comply with The Directions is the latest in a series of failures to comply.

The Respondents submit that these repeated failures to comply, demonstrated throughout the litigation process, are both important and relevant when considering the circumstances of the case.

The Appellant’s failure to comply is serious and significant, no reason for his failure has been provided, and the circumstances of this case show that this is part of an ongoing pattern of behaviour.

When considering reinstatement, the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with The Rules and directions issued by the Tribunal are both important considerations.

The Decision ultimately granted reinstatement of the appeal due to specific circumstances surrounding the Appellant’s submission of his witness statement. Judge Beare stated that, in the absence of those specific circumstances, he would have decided to “dismiss the application for reinstatement.” The Decision was issued on 1 February 2020. It is now July of 2024, and the Appellant has stated he cannot attend a hearing before December of 2025.

The Respondents have incurred considerable costs between February of 2020 and now, and anticipate that further costs will be incurred between now and a hearing should the appeal be reinstated.

The Respondents submit that a delay of five years between the issue of The Decision and a potential hearing date is not an efficient progression of matters. 57. In addition, as this latest failure to comply with directions shows, the Appellant continues not to follow the Tribunal rules or respect the directions issued by the Tribunal.

The Respondents therefore submit that the Appellant’s application for reinstatement should not be granted.

The Appellant’s proposed hearing dates

The Respondents’ position remains as set out in their email of 4 March 2024.

The Respondents submit that the Appellant’s suggestion that a hearing can only be listed in the period 8 - 19 December 2025 is not a practical way to bring the proceedings to a conclusion.

The Respondents’ note that this appeal dates back to 2015, with decisions dating back to the tax year ended 5 April 1998 in respect to direct tax, and the 05/95 period in respect to VAT.

The Respondents submit that they, and the Appellant, are entitled to finality in this matter. In line with the overriding objective to deal with issues fairly and justly, and specifically in line with Rule 2 (2)(e) of The Rules it is important to avoid delay in so far as is possible and practical.

The Respondents respectfully submit that waiting 17 months for a hearing date constitutes a significant delay.

The Respondents understand that the Appellant has cited both health and jurisdictional reasons for his very limited availability. However, the Respondents submit that, as he has declined to have the appeal heard on the papers, it is the Appellant’s responsibility to make himself available to attend a hearing. While it may be inconvenient for the Appellant to travel and attend a hearing, and while he may have conflicting work commitments, these are not an exceptional circumstance.

The Respondents note that the Appellant has not, to date, provided any evidence to support his assertions that:

He is currently in Peru;

His current employer refuses to allow him to take any time away from work in the 17 months between now and December 2025, or;

He is suffering from diagnosed, ongoing long covid and that it is the opinion of a qualified physician that he is currently unable to travel to the UK for health reasons, and will continue to be unable to travel to the UK until on or after June 2026.

The Respondents respectfully request that, unless and until evidence to support these assertions is provided, no further delays to proceedings on the basis of these assertions and their consequences are allowed.

Rule 30 of The Rules states:

“Subject to rules 19 (proceedings without notice to a respondent) and 32(4) (exclusion from a hearing), each party to proceedings is entitled to attend a hearing.”

The Respondents submit that the entitlement to attend the hearing granted by rule 30 does not grant any party the right to decide the hearing date, nor does it constitute a right to have the hearing only occur in the presence of all parties.

Rule 33 of The Rules, in fact, explicitly allows the Tribunal to proceed with a hearing in the absence of any party to the proceedings:

“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

considers that it is in the interests of justice to proceed with the hearing.”

The Respondents submit that, again, there is nothing in rule 33 that grants a party the right to decide the hearing date.

From his correspondence, the Appellant has made it clear that he is capable of attending a hearing in the UK, but will not make himself available to do so until after June 2026 at the earliest. The Respondents submit that this position is at odds with the overriding objective of the Tribunal.

The Respondents submit that appellants regularly have to travel to attend hearings, they often have to arrange to be absent from work or otherwise rearrange existing commitments in order to attend, and appellants suffering from chronic health conditions attend Tribunal hearings.

The Respondents submit that the Appellant’s unwillingness to do this, and his insistence that he will only attend a hearing in a single period or when his current contract has expired, is unreasonable, and is creating an unreasonable delay.

This delay is material, and has a prejudicial impact on the Respondents.

This appeal considers matters which occurred many years ago. Should the hearing be held in December 2025, some of the decisions will be over 30 years old. This is a considerable length of time. The length of time the appeal process has already taken has meant that some of the Respondents’ witnesses, and others involved in the litigation process, have retired. Further delay will only exacerbate this problem.

In addition, the more time that passes, the further back witnesses for both parties will have to recall, and the less reliable their memories and their testimony will be.

[HMRC then refer Pittack v HMRC [2014] UKFTT 670 (TC) which describes how the FTT dealt with delays caused by ill health in a particular case and make submissions.]

If the Tribunal decides to reinstate this appeal, then the Respondents request that, when reinstating the appeal, the Tribunal issue directions which:

confirm the draft directions issued on 19 September 2023;

Update direction 4 to allow the Appellant to request a video (subject to the Appellant and his witnesses being able to meet the appropriate attendance requirements) or a face to face hearing;

Update direction 4 (7) to a listing period commencing 2 months after and ending 6 months after the decision to reinstate;

Specify that a hearing date will be fixed by the Tribunal in line with direction 5, taking into account the parties availability but not being subject to the parties’ availability, and even if a party has not provided their dates for a hearing or dates to avoid.

The Respondents submit that this will allow for an earlier listing period, and a reduction in further delay to the proceedings.

Conclusion

The Respondents object to the Appellant’s application on the basis that:

The Appellant failed to comply with The Directions;

The Appellant’s failure to comply was serious and significant;

The Respondents’ do not agree that the Appellant’s proposed hearing dates provide a practical way to bring the proceedings to a conclusion and therefore the Appellant has not rectified his failure to comply;

The Appellant’s grounds of appeal do not constitute an explanation for his failure to comply;

The Appellant has demonstrated a pattern of behaviour throughout the litigation process, and this is not his first failure to comply with directions, nor is this the first time his appeal has been struck out due to his non-compliance with directions;

It would not be in line with the overriding objective to reinstate the Appellant’s appeal.

The Respondents therefore respectfully request that the Tribunal dismiss the Appellant’s application to have his appeal reinstated.

Should the Tribunal decide to reinstate the Appellant’s appeal, the Respondents submit that the Appellant’s proposed hearing dates do not provide a practical way to bring the proceedings to a conclusion.

Should the appeal be reinstated, the Respondents respectfully request that new case management directions are issued, as detailed at paragraph 80, above, to allow proceedings to progress in a timely manner.

Overall

The appellant is somewhat surprised by the respondents’ comments. In my opinion, I have always tried to comply with directions and indeed, considered that I had complied. I accept that Judge Sinfield, having been given information regarding the case, which was incorrect, may have considered that I had not complied, in reference to that one response however, there is no doubt in my mind, at that time, that (1) I was compliant and made that abundantly clear within my representations, (2) I was trying to comply with all 4 of the requirements and needed information, from tribunal in order to do so and, as soon as that information was provided, I did comply and (3) I consider (and I appreciate this may not be a consideration by others) that this was simple mistake by me and although I do not criticize Judge Sinfield for the decision he has reached previously, based on the facts that were presented to him, at the time, I consider that (a) he was given incorrect facts, (b) I was clearly always intending to comply, am now compliant and any lack of compliance has not affected the progress of this case, so it would seem somewhat onerous for me to be denied any opportunity to challenge HMRC’s position (I have never been given any opportunity to challenge them properly in an independent and unbiased manner) and for me to effectively be penalized £3m as a penalty (which clearly I am unable to pay anyway) where I have provided clear evidential basis as to why this £3m is improper and incorrect, much of which has not been challenged by the respondents or has been challenged and that challenge found to be faulty.

I trust that the majesty of law here, the fairness and equity of the Tribunals to the appellant, which I would remind the respondents is a prime objective of Tribunal, would allow for what I consider is a mistake to be rectified, in short measure and without any affect to the final outcome.

Therefore, in my opinion, it cannot be fair and equitable, to the appellant, for the appellant to be denied their appeal on the basis of a simple mistake that has now been rectified and did not change the timescale.

If one of the criteria that Tribunal wishes to consider is why I didn’t ask for extra time to respond, it should be noted that I considered that I had complied and therefore additional time to comply would not seem appropriate, that would suggest that I hadn’t complied, so effectively what the respondents are asking for is for me to advise regarding a position I did not believe existed and clearly, one of the main tenets of Tribunal is providing the truth, so if I did not believe a position existed, why would I then provide information regarding it as, in doing so, that would suggest I did believe it.

In reference to the response in specifics;

Point by point

Points 1-7 - No response required.

Agreed.

I disagree that there was no compliance, I was waiting for information, from tribunal to confirm the dates, which I could not confirm until I had that information. Perhaps the respondents would advise how I should respond in that fashion, without asking for that information (which I did). That to me is compliance as it took forward the discussion as to how compliance could take place to reach a conclusion and I do not understand how I could have reached that position without asking for that information. Therefore inherently, the deadline should have been extended as soon as I asked for that information, to allow that information to be provided and for me to confirm final dates. That is not incompliance, that is complying with the order in the only manner that I could.

I would add that we are here discussing a date, which was put onto an order. Such dates are clearly dependent upon the ability of the relevant party to comply, in this case, it was impossible to comply with that part of the order without the information that was requested therefore, in my opinion, that constituted compliance.

I now accept, from Judge Sinfield’s response, that may have been an incorrect opinion to reach, that does not mean I didn’t reach it, that just means I made a mistake in reaching it.

If what is being requested here is an application to have the date of compliance with the order amended to a later date, so as to ensure compliance, I hereby make that application accordingly.

APPLICATION

I hereby apply for the date of the order issued on 2/4/24 for compliance with the directions of Judge Sinfield, to be extended from 16/4/24 to 22/5/24. As this has not, in any way, affected the progress of the case, I would like that application to be heard accordingly and heard on the papers alone if possible, but I appreciate that is entirely a decision for Tribunal to make.

Furthermore, I would point out that I did provide a detail as to conclusion of the case in an alternate manner. Although I appreciate that Judge Sinfield has rejected that alternative, it is clear to me that he rejected such alternative on the basis of the wording used in that application and as far as I can appreciate (and I accept I may be wrong in this) the refusal to allow the application was not on the basis that ‘it would constitute a conditional acceptance of the proposal to hear the appeal on the papers’, but that it was phrased in a manner which suggested that I was leading the Tribunal in a manner which Judge Sinfield considered was improper.

I never asked for a ‘conditional’ consideration of the application to have the appeal determined on a precise point and I do not understand why the appeal cannot be determined in such fashion.

I also do not understand why applications cannot be considered on the papers alone and the main appeal considered in hearing, that has happened previously and is fully allowed in the regulations, so perhaps the respondents would explain why this is inappropriate.

Perhaps Tribunal would clarify this point as one of us is wrong in this, so it would be useful to understand whether the respondents are correct in their comment.

I do not accept that any application that was made by me was conditional acceptance purely on the basis of hearing the appeal on the papers. That application made was clearly never an application to hear the appeal, it was an application of a different nature to consider one part of the evidence supplied and whether consideration of that part alone would be sufficient to allow the appeals to be granted. That application was purely made to expedite matters (in accordance with tribunal tenets) and, in my opinion, had the application been made in a better format, allied with the fact that had Judge Sinfield been aware that I had complied with the response deadline, I would suggest that Judge Sinfield would have approached it with a different outlook.

My comments above suggest that the respondents’ understanding of the rejection of that application is different to mine and perhaps Tribunal could explain the position so that both parties are fully aware.

I also refer to my response above in point 9.

I disagree as explained above.

All agreed.

Points 14-20

In reference to these points, I would make the following comments;

In Dominic Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) the Judge referred to a number of matters and cases, which are relevant here and which I have detailed below the most significant and (in my opinion) relevant.

In British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] 1 WLR 4530 the court explained that this was justified because an “unless” order does not stand on its own. It observed at [38] that the court usually only makes an “unless” order against a party which is already in breach. It went on to say at [38] and [39]:

“38…. the “unless” order gives that party additional time for compliance with the original obligation and specifies an automatic sanction in default of compliance. It is not possible to look at an “unless” order in isolation. A party who fails to comply with an “unless” order is normally in breach of an original order or rule as well as the “unless” order.

There was no previous order that the appellant was in breach of. Therefore, under this case, the unless order strike out stands on its own and therefore the above case would clearly define that a strike out cannot occur in these circumstances.

Seriousness and significance of the breach

In Dominic Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) the Judge referred to the seriousness and significance of the breach. The seriousness of the breach is a matter of contention, I consider that no serious breach occurred and that will remain my opinion on the matter and I appreciate this is subjective. However, on the point of significance, clearly the fact that I am now compliant, the fact that this compliance means that the case progress has not been hindered in any way and the fact that an application to reinstate does not, in any way hinder the respondents or make their position untenable in any manner, clearly defines that any such breach is clearly insignificant as it has no effect upon anyone to continue with this case in a proper and correct manner.

Furthermore, as soon as I became aware that a breach was considered, I rectified it and that rectification now allows the case to conclude in a proscribed and approved manner and timescale.

Clearly that can only be determined as an insignificant breach. As such, it clearly cannot be determined as a significant breach and therefore Dominic Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) would seem to indicate that reinstatement is the completely correct manner of progression.

The reasons for breaches

In Dominic Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) the reasons for breaches changed and that meant that proper consideration of the breaches could not be reached by Tribunal Judge Herrington, at the time the breach was being considered and this again was put forward as a reason why the appeal should not be reinstated. Clearly, in this case, there has been no change in the reasoning and a proper consideration of the reasoning should now be fully understood. On that basis, this element of why Judge Herrington refused the application does not apply in this case.

Conduct

Judge Herington reached the view that

In view of Mr Chappell’s conduct to date, there could be no guarantee that the subsequent conduct of the proceedings would proceed smoothly in accordance with the further directions that will be necessary to bring the matter to a hearing.

In this case, we have a hearing date that can now be set. That clearly is a clear and consistent fact that subsequent proceedings would proceed smoothly.

Judge Herrington also concluded that a major factor in the decision not to reinstate was as follows;

Furthermore, as I have said, if I were to reinstate the proceedings now on the basis of the Reply as filed, then requests for further and better particulars would inevitably follow in order that TPR is in a position to prepare the necessary evidence. Mr Chappell’s conduct to date suggests that there is a good chance that such requests would not be complied with satisfactorily were the Tribunal to endorse them. Further unless orders may then be necessary. Nothing that Mr Chappell said at the hearing gave me any confidence that his behaviour was likely to change. I could not take seriously his off-the-cuff comment at the hearing that he would immediately resign his job and devote himself entirely to pursuing the reference. It is therefore clear that it is highly likely that there would be significant prejudice to TPR in terms of costs and devotion of resources in preparing for a reference that, ultimately, may not be properly pursued. That is a very strong factor in favour of not reinstating the reference.

There are no further or better particulars to provide in this case, so it cannot be determined that there could be any conduct which suggests that any of such would not be complied with. The appellant has complied with all requests for further and better particulars and always (in his opinion) in a timely manner. The conduct of the appellant in reference to provision of such cannot therefore be determined as being incompliant, in any way or form and as Judge Herrington points out, the conduct and the inability of Judge Herrington to believe that Mr. Chappell would allow the normal progression of this case was a massively important factor in his decision to refuse the application.

The appellant has made no ‘flippant’ comment to Tribunal in respect of the requests for further information and there is certainly no prejudice to the respondents in respect of additional costs to bring this matter to a conclusion than would naturally and normally occur.

Clearly, those consideration do not exist in this case.

Judge Herrington concluded that further ‘unless’ orders may be necessary, none are required here.

Judge Herrington also noted that Chappell had shown a clear indication of a lack of respect for the Tribunal and his behaviour was clearly a defining point to the refusal to reinstate. I trust I have made it clear to Tribunal that I accept my actions were mistaken and have apologized to Tribunal and Judge Sinfield for such, if that is not a prime example of contrition and a clear respect for Tribunal as well as an understanding that the manner of action needed amendment, then I do not know how else to convey this.

Judge Herrington also noted;

Finally, I must give particular weight to the importance of efficient litigation and compliance with rules and orders. Mr Chappell has repeatedly failed to comply with directions culminating with the Unless Order which is also not been complied with. As I have also indicated, he has continued not to comply with the Tribunal’s directions as regards the hearing of his reinstatement application. Unless a deadline is passed, he makes no attempt to respond to correspondence, either from TPR or the Tribunal. As I have repeatedly said, that conduct is unacceptable and demonstrates a fundamental failure to cooperate with TPR and the Tribunal, as required by the Rules. That conduct has undoubtedly impeded the efficient progress of this reference, as illustrated by the fact that very little progress has been made since the reference was filed over 17 months ago. I must therefore give strong weight to this factor in this case.

Clearly this is yet another important aspect to the considerations of Judge Herrington and clearly these considerations do not apply in this case. As far as I am aware, I am compliant with all orders and directions and there are no further requirements that Tribunal is required to obtain except the normal requirements for a case to be heard, which would normally be provided much closer to the case date. There has been no fundamental failure to co-operate with correspondence, in fact the opposite is true, there is a clear fundamental compliance. My conduct cannot be determined as ‘unacceptable’ and there has been no attempt to impede the progress of this case. Full progress has been made and we are literally at the point where a hearing can take place, subject to the normal timescales of provision of court files, which are undertaken by the respondents.

Therefore, instead of suggesting that Dominic Chappell v The Pensions Regulator [2019] UKUT 209 (TCC) would seem to dictate that reinstatement is inapplicable in the circumstances, in fact this very case and the difference in nature between my actions and Mr. Chappell’s would clearly show that reinstatement is entirely appropriate.

I would further point out that Judge Herrington’s consideration here weighed heavily on his mind;

It is undoubtedly the case that there would be significant prejudice to Mr Chappell were I not to reinstate the application. TPR is seeking to impose liability on Mr Chappell for a very large sum of money. If the reference is not reinstated Mr Chappell will be deprived of the ability to challenge the issuing of contribution notices in the sum of about £9.5 million in circumstances where the Tribunal proceedings are the only opportunity for Mr Chappell to challenge TPR’s findings through the judicial process. That is a strong factor in favour of reinstating the reference.

There is not much difference in terms of a ‘very large sum of money’ when one considers £ 9.5m and 3m. Clearly Judge Herrington defined that this was a strong factor in favour of reinstating the case. In my case, I have acted entirely different to Mr. Chappell, I have complied with all orders, albeit I accept that there was one point in the past when I was very ill and wasn’t in a position to respond and, on my recovery I did comply and this latest issue which I now consider is complied with and we are at the point where a case can conclude at hearing, with nothing stopping it from now onwards on reaching that conclusion.

On that basis, rather than this case suggesting that reinstatement is inappropriate, I would strongly contend this case clearly defines that reinstatement is the only option available.

I thank Judge Herrington for his considered and valuable views on the matter.

The respondents submit that the directions were perfectly clear. Clearly that cannot be the case if the appellant didn’t fully understand them. It cannot be a correct statement, where the appellant does not fully understand the directions and considers they have complied with them for those directions to be ‘perfectly clear’ to the appellant. The respondents have experience knowledge and understanding of the legal framework, so cannot comment on how the appellant viewed the directions. This comment is therefore somewhat irrelevant as far as the appellant is concerned, nobody is questioning the understanding of the respondent and the respondent is not in a position to consider the appellant’s understanding or appreciation of the directions.

The appellant certainly considered that they had provided an alternative, that was clearly a misunderstanding and I am confused as to why the respondents would assume that something that I misunderstood was ‘perfectly clear’, that cannot be the case, otherwise I would not have misunderstood them.

Points 22-23. See above.

I was always under the impression I had complied, as clearly stated, it cannot therefore be determined, by a third party, that I was not under that consideration.

All of these machinations provide for compliance with the directions, the only missing factor was a date, which could not be determined until I had detail of the country from which I could represent, which was requested within the response and, as soon as that was provided, the date was provided and full and unequivocal compliance occurred. The only reason full compliance did not occur within the first response was that I could not yet determine a date and, although I accept that, in hindsight and with the knowledge I have today, gratefully received from Judge Sinfield, a request for additional time may well have been appropriate, the failure to ask was merely inexperience, misunderstanding and a lack of Tribunal knowledge. It is clear that, had I asked for more time, that may well have been granted and I have made the application within this response for that additional time, had that additional time been granted and the required information provided, then there would have been full compliance.

Considering the fact that (1) I considered I had complied as best I could, (2) I provided an alterative compliance that I considered was valid, (3) I merely did not supply a date, as I could not supply one at that time, but confirmed all other matters, (4) as soon as I was given the information to progress, I provided a date (5) had I made the application for additional time and it had been granted I would be in full compliance and (6) this has not affected, in any way, the progression of the case in the appropriate timetable, clearly that all points to reinstatement being the appropriate consideration.

Points 26-27

Clearly the evidence shows that this is a practical way of bringing this matter to conclusion, as the Tribunal is now in a position to set a date for a final hearing.

I am at a loss to understand why the respondents have made this comment and refer the respondents to (1) the previous hearing where the issue of provision of evidence was clearly discussed and considered, by Judge Sinfield and (2) my response of 15/4/24 and in particular paragraphs 4-10 of page 4 and paragraphs 1-4 of page 5, which clearly explains the position and were all provided within the response to the directions, sent on 15/4/24 and reiterated in the reinstatement application.

There were 4 considerations within the determinations. I considered that I clearly had complied with the alternative method of resolution by providing the application. I was also considering that providing the date after having received the response would also be classified as compliance. Again the respondents are commenting on what the appellant considered and clearly, as is defined within this response and other documentation, the evidence shows their consideration as wrongly made.

Clearly the respondents cannot make that statement in light of the evidence.

Points 31-33

The respondents are misrepresenting the position here. There is a difference between (1) not being able to provide detail to (2) not being prepared to provide detail that the appellant could provide. The respondent is seemingly claiming the latter (2), the appellant is clearly claiming the former (1). It is confusing to the appellant as to how the respondents can claim the latter when they have no knowledge or appreciation as to what the appellant thought at that time and where the appellant has acted in accordance with point (1) and has claimed that they were acting in accordance with point (1). Clearly the provision of the dates, in a quick timescale, after the information in order to define dates was provided, thereby allowing for a conclusion within the determined timescale, shows a clear appreciation that position (1) applied. It is therefore again confusing as to why the respondents, without any evidence to support their contention is suggesting that their interpretation applies.

I would add that this section also seems to contradict the previous point (28) of the respondents’ responses.

In addition to this point 32 clearly shows that (1) above applied and the respondents are seemingly confused as to the difference.

Point 33 is also disproven by the provision of dates, which clearly shows that the appellant was fully prepared to provide dates. I would also point out that if I was unprepared to provide dates, then that unpreparedness would not have changed and had the issue been that ‘unpreparedness to provide’ rather than an ‘inability to provide’, I would have refused to provide dates even after the information in order to put me in a position to provide dates had been provided by Tribunal. Therefore, the respondents’ points are confused and incorrect.

I have now made the application within this response. I appreciate that application should have been made at the time, that was a mistake by me, I have acknowledged it as a mistake and I apologise for to Tribunal for not making the application for more time earlier, but as it has now been made, I presume this point, by the respondents, is now irrelevant.

I have provided copious explanation as to why it was not provided earlier.

I do not understand how it can be determined, by anyone, that providing dates for a hearing and a manner by which that hearing can take place is, in any way ‘not providing a practical way to bring proceedings to a conclusion’. Perhaps the respondents should provide more detail here, just making a statement that is clearly unfounded cannot be an acceptable response.

Correct.

The respondents point out that I could have provided details of dates assuming America. I would respectfully point out that I had no idea whether even America was an applicable country and indeed I provided 4 countries and 3 were rejected. It is therefore confusing as to why I could have assumed that America would be any different to any other country and indeed, was expecting that either (1) all countries would be applicable or (2) none. It would be rather presumptuous to assume that America would be the only one allowable, I didn’t know and that was why I asked the question. So what the respondent is saying is that I should have anticipated an answer to a question I had no idea what the answer would be and where I expected a different answer, it’s completely nonsensical.

I would comment here that I consider that the appellant is getting utterly confused as to the situation and is making assumptions which are clearly incorrect to make and then inferring, from those incorrect assumptions, a plan of action that clearly could not possibly be undertaken and ultimately inferring from that flawed plan that because I never undertook that flawed plan somehow that suggests that I never intended to undertake anything.

Clearly that is an entirely incorrect approach.

I would add that I made it clear that I needed to appreciate the country so as to work out the timescale so as to agree that timescale with my employers, this is clearly a ‘chicken and egg’ situation in that there is a process to follow and one cannot assume any part of the process. For example, if all 4 countries were unacceptable and I had given dates, as suggested by the respondents, then I would have to have withdrawn those dates and the respondents would then be commenting that I am incompliant, so whatever I did, the respondents would have found issue with it.

I considered I dealt with the matter is the most apposite manner, considering the circumstances, I would suggest that the respondents have misunderstood entirely the whole situation.

This is untrue, I provided a clear method of resolution, just not a set of dates.

I am at a loss to understand how the respondents have come to their first consideration and would ask them to explain how, considering that we now have a date and methodology to reach conclusion. As to their second consideration here, I have provided detail as to the reasons why, so there is an excuse, just one that the respondents find it impossible to accept, although I would add that the respondents seem to approach all of my representations in an identical manner.

This is correct.

I would point out that firstly, this was deemed an acceptable timescale by Judge Sinfield, so are the respondents now criticizing his decisions?

If so can they please explain why?

Secondly, I was not asked to confirm that all my witnesses could attend, but I checked anyway and can confirm that I have made the appropriate enquiries and (3) it is down to me to get my witnesses to attend and is not the responsibility of either (a) the respondents or (b) Tribunal, so it is irrelevant as to the progression of this case to conclusion as to whether I can get all my witnesses to attend or not.

I would add that Judge Sinfield did not ask that question or put such into his directions, so I am confused as to why the respondents seem to suggest that I have not complied with a direction that I was not asked to comply with.

Again this is untrue, I have provided copious reasons for what occurred.

Noted

Points 44-45. The appellant considers otherwise. The Tribunal can now proceed to conclusion, given the dates. The respondents are clearly wrong in their considerations.

I consider I have explained myself fully previously as to my actions. I admit that there were some minor mistakes, this being due to a misunderstanding by me, there is no doubt of that, but I trust I have explained above why that should not be a reasoning for a refusal to reinstate.

Again, I am at a loss to understand how the respondents can know and understand my understanding of the matter better than me. They are making statement after statement saying that my understanding is not as I have represented but they have provided no proper evidence to support their contentions and clearly they have none.

There was a hearing to discuss the case and it was clearly defined, within that hearing, by Judge Beare that I had been unwell and that it was correct and proper to reinstate the case. I can provide a full reasoning as to why (1) the documentation issued by Judge Beare was not complied with, (2) that subsequent documentation was not complied with (both being due to a long standing and very difficult illness) and (3) that the case was clearly reinstated because of that illness. This occurred 6 years ago and it seems rather ‘clutching at straws’ for the respondents to bring up a matter that occurred 6 years ago and where the final conclusion was that there was a perfectly good reason as to why the case should have been reinstated. I see no reason to re-judge that decision and it has no bearing upon this matter. The conditions were entirely different and there were no responses to Tribunal, due to my illness and the fact that I was not in a fit position to answer them for many months, having been bedbound.

I am therefore confused and surprised at the respondents referring to it.

I agree that I had not complied and it was fully accepted that the reason for my non compliance (it was non compliance in entirety) was due to my illness and the application to reinstate was approved. This case is entirely different, I have responded on all occasions and have not claimed illness as the reason for any perceived non-compliance.

That matter therefore has no relevance to this issue.

Untrue. There was a specific reason for that non compliance which has no relevance here. Over a period of 8 years, I have complied with all directions except that one period of illness and this latest issue, which I consider I have complied with but appreciate others may not consider. That is clearly in the main full compliance.

Again untrue, there has been no history of non compliance except that one incident which was explained and dealt with, the case having been reinstated (as it properly should have in the circumstances). Over an 8 year period that is certainly not a history of non compliance as suggested.

There is no current failure and it is certainly not serious or significant as explained previously. This matter can now proceed to its conclusion, in a timescale decided by Judge Sinfield, that cannot be a serious or significant failure.

Agreed. I would remind Tribunal that I do find it rather confusing that the respondents continue to discuss about breaches in Tribunal rules when they were meant to issue a statement of case in 2016, which was eventually issued in November 2018 (2 years later) where they made application for extension, after the provision date had passed and, in hearing, represented to the Judge considering the application, that I had agreed the extension when I had not, this influencing the Tribunal Judge to grant the extension and then they make issue with a date that wasn’t provided for just over a month. It seems the respondents are quite happy to ignore Tribunal rules and determinations and take 2 years to issue a document that should have been issued in 2 months but want them rigorously applied when it comes to the appellant.

This is of absolutely no relevance and again seems to be a criticism, by the respondents, of Judge Sinfield’s decisions. If the respondents consider that Judge Sinfield’s decision of an appropriate timescale is inappropriate, then they have every opportunity to apply for that decision to be amended. I note no such application has been made, so it seems that the respondents are trying to maintain something but not acting in accordance with it. If the respondents consider the timescale as inappropriate, they can apply to have it amended.

Those costs are no more than had the case concluded in the normal manner. It cannot be the case that costs which would have to have been spent anyway, had the case concluded be a matter of consideration when clearly such a decision would massively prejudice me (as explained above).

It seems that the respondents are forgetting the ‘elephant in the room’ here. Covid clearly played a role in the delay, this was not down to me in any way. In fact I consider that the respondents have far more responsible for any delays than myself, but this is an argument we can have over and over and will never reach agreement, mainly because the respondents never agree to anything and that I consider is one of the major reasons why this case has been delayed so much.

This is untrue again. Over a period of 8 years, there has been a period of illness and one issue regarding a date. That is not incompliance.

The appellant disagrees entirely and has proven above from the very case quoted by the respondents as to why the only course of action that would arise out of that case is for reinstatement.

Noted

Perhaps rather than just making a statement, the respondents explain why they are unable to comply with those dates. The appellant would further point out that it wasn’t within the realm of the respondents to respond with appropriate dates, that was the requirement of the appellant and that requirement has now been met. The appellant would point out that the respondents are a large organization with a number of members of staff. It would seem inconceivable to the appellant that the respondents would not have sufficient staffing to allocate to a hearing that was 17 months away and perhaps the respondents would explain why.

Agreed and the appellant would remind Tribunal it took the respondents 6 years to issue assessments and, when those assessments were appealed, it took the respondents a further 2 years to issue their statement of case, which should have been issued 2 months after appeals had been made. That is by far the longest and most significant delay in this matter. In light of those delays, to accuse anyone else of delay in this case would seem nonsensical.

Agreed. It would seem utterly inappropriate to delay any further than Judge Sinfield’s determination as to dates and the appellant has agreed to that timescale.

Again, the appellant is confused. This seems to again be a criticism, by the respondents, of Judge Sinfield’s decision. Furthermore, the respondents have every right to apply, for that decision to be changed, perhaps instead of the respondents criticizing Judge Sinfield’s decision, they should make that application instead, to show their intent.

The appellant would also point out that this is not an issue that should be considered when considering reinstatement, Judge Sinfield proposed the dates, so long as those dates are complied with then, as far as the appellant is concerned, this is not an issue that should be considered in respect of this specific matter.

The appellant would respectfully point out that he has made himself available, so the respondents’ point is irrelevant.

The appellant would respectfully advise that he has not been asked and such considerations are irrelevant, if a date has been suggested, by Judge Sinfield and complied with and a suitable machination chosen, then such considerations are irrelevant.

The appellant would point out that there are no further delays. A date has been put forward that has the approval of Judge Sinfield and the parties are now reliant upon Judge Sinfield to approve the date. The appellant confirms he is fully in a position to comply with that date.

Noted.

Noted and nobody has chosen a date yet. Of course the respondents have the right to put forward an earlier date if they so wish however, they need to provide a reason as to why a date chosen by the appellant and (effectively) Judge Sinfield cannot be complied with.

Noted and agreed. However, considering that no actual date has been issued, perhaps the respondents should explain what relevance this point has.

The appellant has not ‘chosen’ a date. The appellant was given a timescale and asked to confirm their availability. The appellant has done so. That is the defining factor here, the actual date of the hearing that is finally decided is not relevant to this issue.

The appellant does not understand this point at all, what is the respondent maintaining here? A date has been put forward, by the appellant but is yet to be set, what is the relevance of discussing a date in 2026?

The appellant was making a point, but that point is now irrelevant and certainly irrelevant to this issue.

The appellant would respectfully point out that each matter has to be considered on its own merits. Where a hearing is taking place near to where the appellant lives and works, then of course the appellant has an onus upon them to attend a hearing in a different manner. Where the appellant would be put to substantial cost, time and indeed, health risk, Tribunal has to make an appropriate consideration. Tribunal has made that appropriate consideration and it is confusing as to why the respondents are continually criticizing Judge Sinfield’s reasonable and responsible handling of the date issue.

The appellant would also point out that any date chosen will suit one party better than the other, that is a natural occurrence, the fact that the respondents consider that a date doesn’t suit them is not a reason for that date to be dismissed.

The appellant would point out that, if the date chosen, by the appellant, had not been within Judge Sinfield’s determinations, then that would be a valid point to make. As the dates chosen are within those dates chosen by Judge Sinfield, the appellant would point out that perhaps the respondents should acknowledge their criticism of Judge Sinfield and be taking the matter up with Tribunal and Judge Sinfield himself rather than using a clearly spurious excuse to refuse a proper application for reinstatement. The appellant would point out that he has no criticism of Judge Sinfield in respect of the dates chosen, so would suggest that, where a Judge and an appellant are both in agreement as to dates and their reasonable nature, why are the respondents not in such agreement?

Perhaps instead of making a statement, that is entirely unexplained, the respondents should be explaining themselves better. It cannot be the case that an organization as large as HMRC, with the resources it has, are incapable of complying with the dates mentioned and perhaps the respondents should explain why they consider otherwise.

This is irrelevant, the only reason why decisions are being made in respect of matters 30 years ago are because HMRC made a decision to revisit issues that occurred 30 years ago. It is confusing, to the appellant that the respondents have the final decision on how they approach such matters, make a decision to approach such matters in a certain manner and then complain that it all happened so long ago. It’s like the man who shoots himself in the foot and then complains why he can’t walk properly.

Agreed, so it was entirely inappropriate to delay the issuance of (1) assessments for 6 years and (2) the statement of case for 2 years. It will come as no surprise that both delays were entirely at the complete control of the respondents. I refer to the analogy above again.

Case noted but there has been no claim of mental illness as a reason for non attendance. Perhaps the respondents would explain the relevance of quoting a case that doesn’t apply.

Nobody has made any comment regarding any inability to attend a hearing, in this case. A set of dates has been advised in accordance with Judge Sinfield’s determinations. If the respondent considered those determinations as wrongly stated (as the representations of the respondents suggest) then the respondents had every right to ask for those determinations to be set aside. In light of the fact that those determinations have not been challenged, in any way, by the respondents, perhaps the respondents would explain why they have any issue with them, if they cannot find it within their remit to challenge them in the proper manner.

I do not understand the inclusion of this case at all, perhaps the respondents would explain further as to its relevance.

The appellant would remind Tribunal that this appeal is 8 years old this year and the review itself is 14 years old. Notwithstanding the fact that the respondents have taken matters back to 1996, a period of 28 years. To say that a further period of 17 months is unacceptable in light of that timescale and the fact that one of the main witnesses for the appellant, Mr. Dunne, is now dead and cannot attend, but would have done so, had this case concluded 5 years ago and with 8 years between the beginning of this review by HMRC (in 2010) and the final issuance of a statement of case (in 2018) that 17 months is unacceptable as a timeframe is somewhat confusing.

In respect of (a), (b) and (c) the appellant has no issue in restatement and clarification.

In respect of point (d) the appellant would point out that he fully agrees with Judge Sinfield as to reasonable date and therefore fully expects that the dates that both he and Judge Sinfield considered were reasonable are stated as the hearing dates, although the appellant does also accept that any final decision on that is at the prerogative of the relevant Judge. The appellant fully accepts that the respondents have the right to apply for a different set of dates should they be dissatisfied with the dates applied and that the respondents accept and acknowledge that, should a different set of dates be chosen, which do not suit the appellant, the appellant has the right to apply for a different set of dates to be chosen.

The appellant would remind the respondents that the overriding objective is to reach the truth and every effort should be made to reach that conclusion. If that means that a hearing date is set for December 2025, in order to properly meet that objective then that is an appropriate and correct set of dates to choose.

The appellant objects to such as being prejudicial to the appellant’s ability to attend.

Conclusion

The respondents’ reasonings for objecting to the reinstatement do not hold water, some are based on incorrect assumptions and do not apply, some are irrelevant and some are just untrue. There is nothing that supports the respondents’ position that reinstatement should not occur and, in fact, the very case quoted by the respondents suggests that reinstatement is appropriate.

On that basis none of the conclusions are validly made.

The appellant continues to apply for reinstatement.

The appellant disagrees and notes that the respondents have provided no detail as to why they cannot comply.

Agreed.

Costa Rica

Guyana

Paraguay

United States of America

names and roles of all persons (including witnesses) who will attend the hearing for that party;

whether any witnesses will attend the entire hearing or only attend to give their evidence; and

a draft trial timetable for approval by the Tribunal.

any notices, assessments or amendments under appeal;

any returns relating to the matters under appeal;

the notices of appeal provided under Tribunal Procedure Rule 20

the statement of case provided under Tribunal Procedure Rule 25;

any documents on the lists of documents which are to be referred to in the hearing;

the witness statements provided as directed above or previously; and

any directions issued by or correspondence with the Tribunal in the appeal which the parties intend to refer to in the hearing.