In recent years the First-tier Tribunal (Tax) has become more open. The publication of hearing lists made accessing hearings easier. In his latest monthly column for Tax Journal, Victor Cramer considers the issue of third party access to pleadings.

The First-tier Tribunal’s decision in Hastings Insurance Services v HMRC [2018] UKFTT 478 (TC) confirmed that the tribunal has, and generally ought to exercise, inherent jurisdiction to allow non-party access to pleadings and orders.

The recent procedural decision in Cider of Sweden Ltd [CoS] v HMRC & Ernst & Young [2022] UKFTT 76 (TC) highlights the limits of the tribunal’s jurisdiction, and raises a question as to whether it should be modified in the context of tax disputes.

Cider of Sweden’s claim

The underlying issue in that case relates to the UK’s excise duty post-duty point dilution regime. Even the acronym is unwieldy.

CoS is bringing two actions against the UK, arguing that it was unlawfully discriminated against by the operation of the regime. One action is in the High Court, and one is in the tribunal. The High Court documents are public, and their content is reasonably easy to guess: a Francovich claim for damages.

The tribunal claim is more of a mystery. Some creative thinking has gone into that.

CoS’s claim is of relatively narrow impact. It should interest overseas manufacturers who export finished product to the UK, which competes with wine and made wine products. For those affected, the values will be relatively significant. They have a clear interest in understanding the basis of the claims.

EY applied for copies of the pleadings in the CoS tribunal case. Initially, the tribunal was inclined to grant access, but invited submissions. HMRC and CoS objected. Both argued that there must be some form of judicial involvement in the case before the principle of open justice is engaged. The tribunal accepted these submissions, and denied access.

If this sounds odd, it is because ‘open justice’ doesn’t quite mean what you think. It has a dual purpose, namely:

• allowing scrutiny of judicial decision making; and
• enabling the public to understand how the justice system works.

The case was at an early stage. There was no judicial involvement to scrutinise, so the principle was not engaged. That’s fine in so far as it goes, but does it go far enough?

Progress of the case

The High Court case appears to be proceeding; a defence has been filed and a variety of orders made. This typically will mean that the tribunal case is stayed. There may be no judicial intervention in the tribunal case for the best part of three or four years (although we must return to this).

CoS is complaining that its competitors benefited from an unfair tax advantage. It is suing to obtain a similar advantage, and arguing that the basis on which it does so should not be made public – presumably in case it loses an advantage over its competitors.

Irony is not a sound principle of jurisprudence, but perhaps it should serve as a sense check.

Conclusions

CoS’s rights are not realistically infringed by publication of the basis of their appeal. The interests of justice and rule of law suggest that when HMRC is being challenged, the basis of that challenge should be public at least where there is scope for the outcome to have wider impact.

Finally, a point of circularity. The tribunal applied its general principles (at para 47). In the absence of a hearing, imminent hearing or interim hearing, there was no way in which release of the pleadings could assist scrutiny of the tribunal’s decision-making process. Prior to the tribunal’s decision, there was no decision to scrutinise.

Well, OK. Is there then an interim application that a third party could make, which would require the tribunal to consider the grounds of appeal? Loopholes are not generally there to be exploited. But in this case…

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