England and Wales High Court (Administrative Court) Decisions

1. This is an appeal under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Manchester VAT Tribunal made on 16th May 1997. Section 11 allows an appeal to the Court on a point of law only. The Tribunal confirmed assessments to VAT made against the taxpayer in respect of alleged under-declarations of output tax in his business known as the Khayam Restaurant at 13 Vine Street, Evesham.

2. He was registered for VAT as sole proprietor of that restaurant from 1st December 1992 when he acquired it as a going concern, and he de-registered for VAT on 28th November 1994 when he sold it. Some time in 1994 the Commissioners became aware that the taxpayer had also been running, between 29th September 1992 and 15th June 1993, a business known as Robi's Indian Takeaway at 240 Bath Road, Cheltenham, in respect of which he was not registered. That led officers of the Customs to investigate both businesses. During a visit to the taxpayer on 16th November 1994 he admitted that he had not accounted for VAT in respect of the Cheltenham business. He was later assessed to tax on that business, and there was no appeal in respect of that. The officers also inspected the books and records relating to the Evesham business. They took the view that the documents produced were not complete and that full details of the supplies had not been given.

3. Section 73 of the VAT Act 1994 provides that, where it appears to the Commissioners that the VAT returns of a taxpayer are incomplete they may assess the amount of VAT due "to the best of their judgment" This was what the relevant officer, Mrs Stark, purported to do. The Commissioners statement of case to the Tribunal describes her approach as follows:

"During the course of this visit the records for the Khayam restaurant were examined and a drinks to meals ratio was calculated after allowing for wastage and drinks given away. This exercise was made over six weeks covering the weeks ending 5 March 1994, 12 March 1994, 19 March 1994, 26 March 1994, 8 October 1994 and 15 October 1994. These dates were acknowledged by the Appellant, at the time of the visit, to represent normal trading patterns. The percentage of drinks sold to total sales was calculated at 14% (rounded up to be in the Appellant's favour).

4. On 25th November Mrs Stark wrote to the taxpayer's accountants, Winston Fox Nur and Co, enclosing a schedule setting out the calculations which she intended to use as a basis for an assessment. She said:

"I propose to issue the assessment in 28 days' time. If you can provide further information about the proposed assessment or if there are facts which you feel have not been taken fully into account in its preparation, please contact me at the above address to have the position reconsidered."

5. No reply having been received to that letter by 20th January 1995, she sent notice of an assessment in a total of £21,478 for the two businesses, of which £17,249 was attributable to the Evesham restaurant. On 27th February 1995 the accountants replied to the letter of 25th November objecting that the amount assessed was "very high", and in particular that the allowance for wastage was low and no allowance was made for free drinks to staff or customers. Nothing seems to have happened thereafter until 8th January 1996 when a notice of appeal was lodged on the grounds that the amount "was excessive and very high".

6. The appeal came to hearing on 3rd March 1997, before a two-man tribunal consisting of Mr Demack, as Chairman, and Mr Bridge. The appellant was represented by Mr Tafsirullah, the accountant who had been dealing with the earlier correspondence. The Tribunal record that before them the matters in issue had been identified as follows:

"that the assessments under appeal, which were based on an estimated mark-up of drinks purchased, were not made to the Commissioners' best judgment, because:

7. They record that during the course of the hearing the Customs -

"had an opportunity to examine additional documentary evidence produced by the appellant, as the result of which the Commissioners agreed to reduce the tax in dispute by £2,133 to £15,116." (para 1).

8. The decision sets out the background facts which I have summarised, and the relevant law with reference in particular to the case of Van Boeckel -v- Customs and Excise [1981] STC 290, to which I shall need to return. Unfortunately a disagreement developed between the two members of the Tribunal. Mr Bridge took the view that the appeal should be allowed on the grounds that the Commissioners had not exercised "best judgment". His reasoning, in his own words, is set out at paragraphs 17 to 44 of the decision. It is summarised in the concluding paragraph 44 as follows:

"The decision to disallow any stock change, and not bring that decision to the appellant's attention, was not made to best judgment. The calculation of an average mark-up for wines was not made to best judgment. The extraction of the sample of meal bills to establish the sales ratio was not made to best judgment. The calculation of the average sales ratio and its subsequent rounding was not made to best judgment. The appeal should be allowed."

9. The Chairman's reasoning is set out in paragraphs 45ff. He started by referring to two facts which he thought should be borne in mind when considering the events relating to the assessment:

"The first fact is the appellant admitted not declaring his takings from the Cheltenham business for VAT purposes; thus by his own admission he was dishonest. The second is that throughout the period in question the appellant was advised by a firm of chartered accountants one of whose representatives was available to help him deal with any questions raised by Mesdames Stark and Green on their visit to the restaurant on 16th November 1994."

10. The latter point refers to the fact that another Mr Rahman, from Winston Fox, the accountants, was present at the meeting in November, and, as the Chairman accepted, was involved in discussions with Mrs Stark about the mark-up exercise (para 50). The Chairman's conclusions on the "best judgment" issue were set out in paragraph 61:

"It is clear from the judgment of Woolf J in the Van Boeckel case that the Commissioners are required to exercise their power of assessment in such a way that they make a value judgment on the material which is before them. The Chairman is quite satisfied that they did so in the instant case. He is also satisfied that they performed that function honestly and bona fide. There was some material before the Commissioners on which they could base their judgment, albeit of a very limited nature. Finally, the Chairman is satisfied that the Commissioners considered all the material placed before them and, on that material, came to the decision which was reasonable and not arbitrary as to the amount of tax which was due. Consequently, the Chairman holds that the assessments under appeal were made to the Commissioners' best judgment as required by section 73 (1) of the 1994 Act."

"The Chairman having held that the assessments under appeal were made to best judgment it is requisite that he now consider whether such assessments should be reduced for any reason."

11. Having considered various points of detail he concluded:

"In the Chairman's judgment, there is nothing for the Tribunal to warrant reducing the assessments under appeal by a figure other than that of £2133 accepted by the Commissioners." (Para 69).

12. He then noted that by para 5(2) of Schedule 12 to the Act, in the event of disagreement, the Chairman had a casting vote. He concluded:

"It follows that the Chairman's conclusion determines the outcome of this appeal and, subject to the assessments under appeal being reduced as mentioned in the penultimate paragraph, we dismiss the appeal."

13. The Notice of Motion challenges this decision on four grounds A to D, the first two of which seem to me to cover the same point. At a late stage of the hearing before me Miss Lonsdale raised an entirely new point, which, in the absence of any objection from the respondents, I gave leave for her to add as ground E in her Notice of Motion. The new ground was formulated as follows:

"The Tribunal erred in law in concluding that the appellant had dishonestly failed to account for VAT on the business of Robi's Take-away, Cheltenham, for the period from 1st December, 1992 to 15th June, 1993, following registration of the Khayam Restaurant, Evesham under the transfer of business as a going concern provisions, when no allegation of dishonesty had been made by Customs, the issue of VAT on Robi's Takeaway was not before the Tribunal and there was no evidence, and nothing put to the appellant, to indicate dishonesty and from which the Tribunal could conclude that there had been dishonesty".

14. In her submissions, Miss Lonsdale put her argument in various ways, but the key points as I understand them can be summarised as follows:-

15. Section 73(1) provides:

"Where a person has failed to make any returns required under this Act ... or to keep any documents and afford the facilities necessary to verify such returns, or where it appears to the Commissioners that such returns are incomplete or incorrect, they may assess the amount of VAT due from him to the best of their judgment and notify it to him."

16. The appeal to the Tribunal is under section 83 (formerly section 40 of the VAT Act 1983). That provides that -

"Subject to section 84, an appeal shall lie to a tribunal with respect to any of the following matters..."

17. There are then set out a series of actions, decisions, and other matters arising under the Act in respect of which an appeal is given under paragraphs (a) to (z). Paragraph (p) is as follows:

"An assessment -

18. Section 84 contains "further provisions relating to appeals", none of which are directly relevant to the present case. There is no express provision setting out the powers of the Tribunal following a successful appeal.

19. A considerable body of case law has built up on the application of the "best judgment" test. The leading statement of principle is generally taken as a passage in the judgment of Woolf J in Van Boeckel (supra). In order to understand the significance of that passage, it is necessary to set it in the context of the facts of the case and the actual decision.

20. The case concerned a public house business. The Customs Officers had formed the view that the tax returns were incorrect, and had made an assessment for three years based on records of the takings during a test period of five weeks. The taxpayer appealed on the grounds that five weeks was too short a period on which to base an assessment for three years and that no account had been taken of pilferage. The Tribunal held that the assessment had been made by the Commissioners to the best of their judgment, but they reduced the amount of the assessment to take account of pilferage. The taxpayer appealed to the High Court on the grounds that, on the facts before the Tribunal, it should have been clear that the assessment was not valid, because the Commissioners had taken insufficient steps to ascertain the amount of tax due before making the assessment. Woolf J noted that the appeal to the Court was on a point of law only, but he treated that as encompassing an allegation that on the facts the assessments were "ones which the Commissioners had no authority to make" (p291G). He then referred to the statutory requirements which have to be fulfilled before an assessment is made, and the requirement that the assessment should be made "to the best of the Commissioners' judgment". There followed the passage in which he described the obligations placed on the Commissioners by this requirement:

21. He derived support for his approach from two decisions of the Privy Council. The first was Commissioner of Income Tax -v- Badridas Ramrai Shop (1937) 64 LR Ind App 102, where Lord Russell had said (p114-5):

"The officer is to make an assessment to the best of his judgment, against a person however, who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously , because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, ... : and though there must necessarily be guesswork in the matter, it must be honest guesswork." (emphasis added)

"The contrast is not between a guess and a more sophisticated estimate. It is between on the one hand, an estimate or a guess honestly made on such materials as are available to the Commissioner, and on the other hand some spurious estimate or guess in which all elements of judgment are missing . The former estimate or guess would be within the power conferred by section 48 (4): the latter without." (emphasis added)

22. In dealing with the facts of the particular case, Woolf J had to deal with a contention that the Commissioners had made no real investigations before issuing the assessments. He rejected that. He said:

"In fact quite clearly on the material which was before the Tribunal, the Commissioners have made substantial investigations in this case. As I have indicated, unless the situation is one where no material is before the Commissioners on which they can reasonably base an assessment, the Commissioners are not required to make investigations. If they do make investigations then they have got to take into account material disclosed by those investigations. Obviously, as a matter of good administrative practice, it is desirable that the Commissioners should make all reasonable investigations before making an assessment. If they do that it will avoid, in many cases, the necessity of appeals to the Tribunal. However, to try and say that in a particular case a particular form of investigation should have been carried out, is a contention which, in my view, as a matter of law, bearing in mind the wording of section 31(1) is difficult to establish."

23. One notes there the contrast between the desirability of a full investigation, as a matter of "good administrative practice", and the bare legal requirement for there to be some material before the Commissioners on which they can reasonably act.

24. Finally, he considered an argument that since the Tribunal had accepted that an allowance should be made for pilferage, it should follow that similar allowance should have been made by the Commissioners. Again, that contention was rejected. As he said:

"Just as the Tribunal, on the material before them, were entitled to come to conclusion as to the likelihood of pilferage being an explanation for part of the deficiency, so it was open to the Commissioners, having heard what the taxpayer said, to come to a conclusion that this was not a case where it was proper on the material before them to make a reduction... their bona fides were not being challenged, and on the material put before the Tribunal there was no way it could be said that it was wholly unreasonable for the officers not to make further investigations into the question of pilferage nor to come to a conclusion that there was pilferage in this case which had to be taken into account." (emphasis added)

25. I have referred to the judgment in some detail, because there are dangers in taking Woolf J's analysis of the concept of "best judgment" out of context. The passages I have underlined show that the Tribunal should not treat an assessment as invalid merely because they disagree as to how the judgment should have been exercised. A much stronger finding is required: for example, that the assessment has been reached "dishonestly or vindictively or capriciously"; or is a "spurious estimate or guess in which all elements of judgment are missing"; or is "wholly unreasonable". In substance those tests are indistinguishable from the familiar Wednesbury principles ([1948] 1 KB 223). Short of such a finding, there is no justification for setting aside the assessment.

26. In the light of that analysis of Van Boeckel, I should comment on what has been called the "two-stage approach" before the Tribunal. As I understand it the practice is to consider these cases in two stages: (1) consideration whether the assessment was made according to the "best judgment of the Commissioners"; if not, the assessment fails, and stage (2) does not arise; (2) if the assessment survives stage (1), consideration whether the amount of the assessment should be reduced by reference to further evidence or further argument available to the Tribunal (see e.g. Koca -v- Customs & Excise [1996] STC 58, 64 per Latham J). Because the Commissioners have always supported the two-stage approach, it has not been the subject of detailed argument in the cases. In John Dee Ltd -v- Customs & Excise [1995] STC 941, which did not concern an appeal against an assessment, the Court of Appeal referred to the diversity of the matters which could be the subject of appeal, and the impossibility of laying down a general rule applicable to all such cases. A similar form of appeal to the present case came before the Court of Appeal in Georgiou -v- Customs & Excise [1996] STC 463. In that case, the Court of Appeal were assisted by the same counsel who appeared before me, Miss Lonsdale and Mr Barlow. Evans LJ (p477) noted that the two-stage approach, was accepted as common ground between the parties, but he clearly had some doubts about it. He said:

27. Before me Mr Barlow took the same position as he did before the Court of Appeal in Georgiou, namely that the Commissioners had no wish to disturb the two-stage approach. As I understood his submissions, it is regarded as an important part of the discipline imposed on officers, when making their assessments, to know that their judgment is subject to review by the Tribunal. Furthermore, he says that the practice is well understood and gives rise to little difficulty in practice.

28. As one who is more familiar with the assessment process in the context of context of the Taxes Acts (see Taxes Management Act 1970 s29 (1) where a similar "best judgment" test is found), I was surprised by the weight attached to this "two-stage approach". In my experience it finds no parallel in the practice of the General or Special Commissioners of Tax. It is true that, as the section makes clear, an appeal may be against the assessment itself, or against the amount of the assessment. However, the first part seems naturally directed at those cases where it is alleged that the pre-conditions set by section 73(1) for the making of an assessment are not satisfied, for example if the taxpayer is wrongly alleged to have "failed to make any returns required under this Act". Once the grounds for making an assessment are established, then the Tribunal's primary function is to examine the amount. Since the assessment is the starting point for that exercise, the Tribunal will need to consider whether the judgment made by the Commissioners was sound or not. If it is shown to have been wholly unreasonable or not bona fide, there would be sufficient grounds for setting the assessment aside, because it would not be fair for the taxpayer to be required to answer a case which had been formulated in that way. However, that kind of case is likely to be extremely rare. In the normal case, it should be assumed that the Commissioners have made an honest and genuine attempt to reach a fair assessment. The debate before the Tribunal should be concentrated on seeing whether the amount of the assessment should be sustained in the light of the material then available.

29. I accept the importance of the discipline, and I also acknowledge the desirability of not upsetting established practice without good reason. In principle there is nothing wrong in the Tribunal considering the validity of the assessment as a separate and preliminary issue, when that is raised expressly or implicitly by the appeal, and, as part of that exercise, applying the Van Boeckel test. There is a risk, however, that the emphasis of the debate before the Tribunal will be distorted. If I am right in my interpretation of Van Boeckel, it is only in a very exceptional case that an assessment will be upset because of a failure by the Commissioners to exercise best judgment. In the normal case the important issue will be the amount of the assessment. The danger of the two-stage approach is that it reverses the emphasis. This case is a good illustration. The bulk of the discussion by both the Chairman and the member centres on the question of whether the Commissioners exercised best judgment. The discussion of the amount of the assessment is confined to a relatively small part at the end of the Chairman's consideration. As will be seen, this has led to a flawed decision.

30. Against that background I turn to the issues which arise in the present case.

31. In the light of authorities to which I have referred, I see no grounds for criticising the Chairman's approach as summarised in para 61 of the decision. Conversely, the approach of Mr Bridge was in my view wrong. He made certain criticisms of the Commissioners' approach, which he summarised at para 44, but he nowhere considered whether those deficiencies were such as to render the assessment "wholly unreasonable" or otherwise invalid according to the Van Boeckel criteria.

32. It is unnecessary to review the criticisms in detail in this context, but I can take one example which relates to the calculation of the average mark-up for wines. In para 44 he says that this "was not made to best judgment". This appears to be a reference back to paragraph 20 where he says this:

"As conceded by the Commissioners during the hearing, in calculating the mark-up of only one item in each category of drink Mrs Stark significantly overestimated the overall mark-up. It is normal practice in such cases to consider the effect on the profit margin of the mix of products actually sold and either to calculate that effect or at least to estimate its potential size before leaving it out of the calculation."

33. There is in the papers a transcript of the commendably full notes kept by Mr Bridge at the hearing. That shows that there was a discussion during the lunch adjournment of the differences in relation to calculation of the average mark-up. Mr Bridge notes that, following the adjournment:

"the differences between the parties on the calculated mark-up had been resolved. It had been agreed that a mark-up of 105% should be applied overall instead of using separate figures for each drinks category. This replaces the average in the assessment schedule and the figure of 101% used by Mr Tafsirullah."

34. As far as one can judge this was the concession referred to in paragraph 20 of the decision letter, and on which the Commissioners' judgment was found wanting by the members. As an element in the calculation, it is not dissimilar in significance to the point on pilferage on which the Tribunal disagreed with the Commissioners in Van Boeckel . But as has been seen, that difference of view was not sufficient in itself to invalidate the assessment. Admittedly, this was only one of four points which the Member identified in this case, but he nowhere addresses his mind to the question whether, individually or cumulatively, they met the high test required to invalidate the assessment.

35. Paragraph 5(2) Schedule 12 provides:

"If the Tribunal does not consist of the Chairman sitting alone its decisions may be taken by a majority of votes and the Chairman, if sitting with one other member, shall have a casting vote."

36. Rule 30(1) of the VAT Tribunals Rules 1986 provides:

"At the conclusion of the hearing of an appeal the Chairman may give or announce the decision of the Tribunal but...the decision shall be recorded in a written document containing the findings of fact by the Tribunal and the reasons for the decision which shall be signed by the Chairman...".

37. As I understood Miss Lonsdale's submissions, she relied on the fact that the provision for a casting vote relates only to the decision, and there is no express provision for more than one set of findings of fact or reasons. This is true, but I do not understand where it leads her argument. In some cases the members may be able to agree on findings of fact but differ in their final conclusion. In others there may be fundamental disagreement on the primary facts, for example arising out of differing views as to the reliability of witnesses. Although the provision for a casting vote refers in terms only to the decision, the findings of fact and reasons which rule 30 (1) requires are those which are relevant to that decision. Accordingly, where the Chairman differs from the other member on questions of fact or other points leading to his ultimate decision, it is his findings which have to be stated. In this case the Tribunal has gone further than that because they have set out, not only the Chairman's conclusions, but also the conclusions of the dissenting member. This was not strictly necessary, but it is no cause for criticism. The findings and reasoning leading to the actual decision of the Chairman are clearly set out. In these circumstances I do not see any breach of the rules.

38. The principal point which arises under this head is formulated as follows by the appellant:

"The decision is ultra vires because the appellant was entitled to expect that both tribunal members carry out their lawful functions together but each carried out different functions in relation to the first question and Mr Bridge has failed to carry out any function in relation to the second."

39. I have already made clear that I see no basis for complaint in the way the first question, that is the "best judgment" issue, was dealt with. There was a disagreement between the members, and the Chairman's view prevailed. His reasoning is clearly set out and is in my view impeccable.

40. However, I see force in the appellant's contention in relation to the second question. As I read the decision letter, once Mr Bridge had decided that the appeal should be allowed on the best judgment issue, he regarded his function as discharged. There is no indication that he took any part in the conclusions reached on the assessment of the amount. On the contrary, the Chairman seems to have taken individual responsibility for that issue. Thus he says at paragraph 62:

"The Chairman having held that the assessments under appeal were made to best judgment it is requisite that he now consider whether such assessment should be reduced for any reason." (emphasis added).

41. Similarly in his conclusion (para 69) he records that "in the Chairman's judgment" there is nothing to warrant reducing the assessments beyond the amount accepted by the Commissioners.

42. If this is the correct interpretation, then it does in my view show an error of approach. Even accepting the validity of the two-stage approach, the fact that there was a disagreement at stage 1, did not mean that the dissenting member ceased to have any further role. The first issue having been settled by the Chairman's casting vote, the Tribunal should have gone on to deal jointly with the issue of amount. The Chairman had indicated why he did not think that the four points identified by Mr Bridge in paragraph 44 justified setting aside the assessment altogether. It does not follow that they were not relevant to the assessment of the amount.

43. Again I can take one example to illustrate the point. In paragraph 64 the Chairman refers to the appellant's claim to have suffered wastage of beer and lager to a greater extent than allowed by Mrs Stark, but he says that he has already dealt with that matter in the context of the first issue, so that "that matter warrants no further attention". When one refers back to the earlier part of the decision, one finds certain criticisms of the Commissioners' approach to this issue made by Mr Bridge (para 36). The Chairman (para 54) noted the difference between Mrs Stark's allowance of 5% and the appellant's claim in evidence that he lost on average 20% of the beer and lager purchases as general wastage. He commented that Mrs Stark's figure of 5% "may not have been over-generous, but it was in line with the Commissioners' guidance to their staff, and thus not to be condemned as not to best judgment without just cause". That was a perfectly valid comment to make in deciding whether the assessment represented Mrs Stark's best judgment at the time it was made. It does not provide an answer to the question whether some more generous allowance should be made in the light of the evidence and argument before the Tribunal.

44. This point is a good illustration of the dangers of the two-stage approach. The Chairman himself seems to have regarded the point as foreclosed by his consideration of the "best judgment" issue, without considering whether, exercising his own judgment, a more generous allowance should be made. In any event, it was precisely the kind of issue upon which discussion between the two members, in the light of the evidence produced before them and the criticisms made by Mr Bridge, might have led to some reduction in the original figure. It is of course possible that further discussion would have led the Chairman to affirm the decision he actually made, in which case his casting vote would have prevailed. However, the appellant is in my view entitled to complain that the second member appears to have taken no part in the decision on the amount of the assessment, and that there is at least a possibility that, if he had taken part, the decision would have been more favourable to the appellant. On this ground therefore the appeal succeeds.

45. The appellant's complaint here is that the Chairman's findings were coloured by his initial conclusion, based on what had happened to the Cheltenham business, that the appellant was "by his own admission ...dishonest". Miss Lonsdale says that this was unfair both on the facts, and because the point was not put to him.

46. On the facts, she says that the Cheltenham business was not initially registered because on its own it was not of sufficient size. Registration only became necessary when Mr Rahman took over the Khayam Restaurant as a going concern. It was quite understandable that Mr Rahman, without any dishonesty, may have failed to appreciate the implications of that for the VAT status of the Cheltenham restaurant. In any event, she says, it was never part of the Customs case before the Tribunal to allege dishonesty against Mr Rahman or to rely in any way on what had happened in relation to the Cheltenham restaurant. Furthermore, she says that at the hearing neither the Commissioners nor the Tribunal ever put to Mr Rahman the suggestion that he had been dishonest.

47. There is insufficient evidence to reach a conclusion on Miss Lonsdale's factual explanation of Mr Rahman's failure to register. However, I accept, as did Mr Barlow, that where an allegation of dishonesty is to be relied on, it ought to be fairly put to the appellant, before or during the hearing, so that he can respond to it. In this case there is no indication in the decision itself that the issue of dishonesty was raised by the Commissioners or Tribunal or otherwise put to the appellant during the course of the hearing. Nor can I find any mention of that issue in the full notes of the members which are before the Court. However, I am conscious that this point was raised very late in the hearing before me, rather than in the Notice of Motion as it should have been. There has therefore been no opportunity for a considered response by the Tribunal or the Commissioners' representatives before them. I have already decided that the appeal should succeed on the previous ground. In these circumstances, it is unnecessary to make a separate ruling on this point.

48. This case illustrates the dangers of an over-rigid adherence to the two-stage approach. I do not wish to diminish in any way from the importance of guidance given by Woolf J to inspectors as to how to exercise their best judgment when making assessments. However, when the matter comes to the Tribunal, it will be rare that the assessment can justifiably be rejected altogether on the ground of a failure to follow that guidance. The principal concern of the Tribunal should be to ensure that the amount of the assessment is fair, taking into account not only the Commissioners' judgment but any other points that are raised before them by the taxpayer. In this case, Mr Bridge, seems unfortunately to have regarded his function as discharged when he had expressed his view on the best judgment issue. As a result, the assessment of the amount appears to have been conducted by the Chairman alone. In these circumstances the decision cannot stand and I remit it to a different Tribunal for re-hearing.

49. MR JUSTICE CARNWATH: For the reasons given in the written judgment which I have handed down, this appeal is allowed. I remit the matter to a different Tribunal for re-hearing. Miss Lonsdale, you are alone. Mr Barlow is not attending I take it?

50. MISS LONSDALE: No, my Lord. If it assists, my instructing solicitor did actually write three weeks before the trial saying we invite you to accept a remission but ...

51. MR JUSTICE CARNWATH: You have won, so you are entitled to your costs.