First-tier Tribunal (Tax)

[2009] UKFTT 180 (TC)

TC00135

Appeal numbers MAN/01/0416

MAN/07/0550

VALUE ADDED TAX — educational institution entering into scheme for recovery of input tax — scheme conceded to be abusive — redefinition in accordance with Halifax principles — whether Commissioners required to undertake complete redefinition or taxpayer required to make claim for credit — VATA 1994 ss 73, 80 — taxpayer failing to make s 80 claim — complete redefinition required — appeal allowed

FIRST-TIER TRIBUNAL

TAX

MOORBURY LIMITED

Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS

Respondents

Tribunal: Judge Colin Bishopp

Sitting in public in Manchester on 30 April 2009

Andrew Hitchmough and Jonathan Bremner, counsel, instructed by Ernst & Young, for the Appellant

Aidan Robertson QC, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2009


 


DECISION

Introduction

1. These are the joined appeals of Moorbury Limited ("Moorbury") against a number of decisions made by the respondents. Moorbury is a wholly owned subsidiary of Cumbria College of Art and Design ("the College") which, in 1999, decided to construct new buildings and refurbish some existing buildings at its Carlisle campus. As the College makes mainly or wholly exempt supplies, it would ordinarily have been unable to recover as input tax the VAT charged to it on the construction and refurbishment costs and, like many other educational establishments at that time, it entered into a series of arrangements designed to ensure that the tax, or at least some of it, would become recoverable. The arrangements are described in the agreed statement of facts produced by the parties as follows:

"The College, the appellant and another subsidiary of the College, Sunnyglen Limited ("Sunnyglen") entered into a series of transactions intended to mitigate the irrecoverable VAT cost of the building works to the College:

a) the College agreed to lease part of the campus to Sunnyglen, on 29 April 1999 (an exempt supply). Under the terms of that agreement Sunnyglen agreed to develop the land following which it would surrender its interest in the land to the College;

b) as a part of that agreement, Sunnyglen made a further supply of construction services to the College. That supply was made on 30 April 1999 for a consideration of £67,287 plus VAT (£11,775);

c) Sunnyglen engaged Moorbury to supply the construction services needed to fulfil its obligations to the College ("the construction services");

d) Moorbury invoiced Sunnyglen on 29 April 1999 for the construction services in the sum of £3,364,379 plus VAT of £588,746 ("the output tax");

e) the output tax was declared by Moorbury in its return for the period ending June 1999;

f) Sunnyglen deducted the VAT charged by Moorbury on the construction services in VAT period April 1999. This was the same VAT period in which Sunnyglen supplied the construction services to the College, as described at paragraph b) above;

g) in order to be able to provide the construction services to Sunnyglen, Moorbury purchased construction services from third party contractors in the VAT accounting periods from the period ending June 1999 until the period ending December 2001. Moorbury deducted the input tax on these supplies in its VAT returns for these periods;

h) in a subsequent longer input tax accounting period applicable to it, Sunnyglen surrendered the interest granted to it by the College under paragraph a) above."

2. The intention of the College was that Moorbury should charge output tax to Sunnyglen but be able to offset against it the input tax it incurred in purchasing construction services from the third party contractors (with a roughly tax-neutral result in its hands); and that Sunnyglen would be able to recover as input tax all the VAT charged to it by Moorbury, but charge only a small proportion of the cost of the buildings, and consequently the VAT incurred on the construction services, to the College. The intended outcome was that the College would have the use of the new and refurbished buildings but would be left with only a modest amount of irrecoverable input tax.
3. The Commissioners took the view that the arrangements were abusive. On 26 April 2001 (and therefore some years before the concept was considered in this context by the Court of Justice in Halifax plc v Customs and Excise Commissioners (Case C-255/02) [2006] STC 919) they made three alternative rulings: that the transactions between Moorbury and Sunnyglen were not supplies for VAT purposes; that they were not supplies made in the course or furtherance of a business; or that the doctrine of the abuse of rights denied the tax advantage artificially sought. They went on to rule that Sunnyglen had incorrectly deducted input tax of £588,766 and had incorrectly charged output tax of £11,775, that Moorbury had incorrectly charged VAT of £588,766 (the input tax deducted by Sunnyglen) and that it had incorrectly deducted as input tax the VAT charged by the arm's length builders. At this time the works were still in progress, and Moorbury had not incurred all the cost of the construction services. The Commissioners made assessments, period by period, against Moorbury, to recover the input tax (then amounting to £553,196) for which credit had been claimed in its accounting periods from 06/99 to 12/00 inclusive, and warned that they would make additional assessments in respect of period 03/01 and subsequent periods should further input tax credit be claimed. They also ruled that the College should not have deducted the VAT charged to it by Sunnyglen. An assessment was made against Sunnyglen for its accounting period 04/99, to recover the input tax relating to the construction services for which it had claimed credit in that period, less the output tax it had declared in respect of its onward supply to the College. The Commissioners also indicated that they would entertain a claim from the College for credit for the appropriate proportion (the College being partially exempt) of the VAT charged by the arm's length builders; that intimation presupposed that the Commissioners were right in their view that the correct VAT analysis was that the builders had, or were to be treated as if they had, made supplies directly to the College.
4. By the same letter Moorbury was invited to make a claim, in accordance with s 80 of the Value Added Tax Act 1994, to recover the output tax of £588,766 which the Commissioners considered it had overpaid, but of which they had not taken account when making the assessments against it. The invitation was in these terms:

"[Moorbury] may wish to make a claim under section 80 of the VAT Act (a 'Voluntary Disclosure') to recover the £588,766 overpaid. For the purpose of the time limits in section 80, I will accept such a claim, even if it is made without prejudice to your view that my analysis is incorrect … I may also issue a protective assessment shortly after paying such a Voluntary Disclosure to be corrected, if the position is finally determined in such a way that this is appropriate. But I would not, of course, enforce such an assessment before that time. I should add that, before paying any such Voluntary Disclosure, I would set off any amounts overclaimed by [Moorbury] …".

5. Moorbury appealed against the rulings made by the Commissioners and against the assessments it had received, and Sunnyglen appealed against the assessment made against it. Moorbury did not take up the invitation to make a claim in accordance with s 80; I did not discover why not. It is agreed that the time limit for making such a claim, imposed by s 80(4) as it was then in force, expired on or about 31 July 2002.
6. On 20 and 21 October 2005 the Commissioners issued a number of further decisions, restricting the input tax for which Moorbury had claimed credit in its returns for the periods 03/01 to 12/01, returns which the Commissioners had not previously processed because of the continuing disagreement between the parties. A further appeal was brought against those decisions, and it was subsequently consolidated with Moorbury's existing appeal.
7. The judgment of the Court of Justice in Halifax was delivered on 21 February 2006. It contained the following passage:

"94 It follows that transactions involved in an abusive practice must be redefined so as to re-establish the situation that would have prevailed in the absence of the transactions constituting that abusive practice.

95 In that regard, the tax authorities are entitled to demand, with retroactive effect, repayment of the amounts deducted in relation to each transaction whenever they find that the right to deduct has been exercised abusively …

96 However, they must also subtract therefrom any tax charged on an output transaction for which the taxable person was artificially liable under a scheme for reduction of the tax burden and, if appropriate, they must reimburse any excess."

8. On 15 June 2006 Moorbury's advisers (accepting that the judgment in Halifax meant that the scheme could not succeed in its objective and that the Commissioners were, in principle, right in the third of the alternative reasons given in their letter of 26 April 2001) wrote to them contending that the effect of para 96 of the judgment was that they were obliged to credit the output tax incorrectly charged by Moorbury without the need for a claim within s 80, and that the assessments made in April 2001 should be adjusted accordingly. The Commissioners' response, set out in a letter of 21 July 2006, was that the over-declaration of output tax had been made in a period which was not covered by the assessments, and that they could not give credit for it. This decision, too, was appealed.
9. It will be recalled that the over-declaration had been made in Moorbury's return for period 06/99, while the assessments related to the periods 06/99 to 12/00 inclusive. In an email of 27 February 2009 (I did not learn why there was so long a delay) Moorbury's representatives pointed out to the Commissioners the error in their letter of 21 July 2006. The Commissioners recognised the error and the result was that the assessment for the period 06/99, amounting to £41,265, was reduced to nil and consequently withdrawn. The Commissioners said, however, that the remaining output tax over-declared in that period could not be carried forward and offset against assessments made in respect of later periods; they insisted that Moorbury should have made a claim in accordance with s 80. Moorbury amended its notice of appeal to take account of the changes in the parties' positions since it had been lodged, and (abuse no longer being in issue) Sunnyglen withdrew its appeal.
10. The sole remaining issue before me is whether, as the Commissioners contend, Moorbury has lost its right to recover the residue of the over-declared output tax of £547,481 because it failed to make a s 80 claim before the time limit for doing so expired, or, as Moorbury maintains, the Commissioners should have reduced the assessments for the periods from 09/99 to 12/00 so as to give credit for that output tax, or otherwise have taken account of the overpayment.

Submissions

11. Moorbury, represented before me by Andrew Hitchmough and Jonathan Bremner of counsel, puts its case on three bases: that the directly effective principles of Community law set out in the Court's judgment in Halifax require the assessments for the later periods to be reduced in order to allow the credit which is due; alternatively that s 73 of the 1994 Act imposes the same requirement; and that the Commissioners' failure to allow the credit offends the principle of equal treatment.
12. The scheme in Halifax was similar in concept, though not in detail, to that adopted here, and had the same objective, of ensuring that a bank, like the College making predominantly exempt supplies, would not be left with a large amount of irrecoverable input tax when it constructed a new building. The essence of the Court's conclusion was that schemes of this kind, being designed to achieve an objective contrary to the purpose of the VAT directives by abuse of the law, should be redefined, by elimination of the abusive transactions, so as to reflect the purpose of the directives. The redefinition was not intended to impose a penalty, however, and it was necessary for the taxing authority both to recover tax which had been underpaid or for which undue credit had been given, and to repay tax which would not have been paid, or for which credit could have been claimed, but for the abusive scheme. That was what the Court had made clear at paras 94 to 96 of the judgment, and it was incumbent on the Commissioners, if they were to recover the tax avoided, to give credit, unprompted by a claim, for the tax which had been overpaid. It was not sufficient to provide a mechanism for making a claim. The judgment imposed the task of making all the necessary adjustments on the Commissioners; the word "must" in para 96 could not be read as "must if so requested" or in some similar fashion. Nor was there any authority in the judgment for the proposition that the adjustment must be confined to the period in which the excess tax had been paid.
13. The essential feature of s 73 is that an assessment must be for the net amount of VAT which is due, a proposition made clear by the Court of Appeal in BUPA Purchasing Ltd v Customs and Excise Commissioners (No 2) [2008] STC 101. The issue in that case was the extent to which it was permissible for the Commissioners to adjust assessments which were later found to be incorrect. Although the assessments were designed to address an abusive scheme, the facts of the case are rather different from the facts of this. However, in the course of her judgment Arden LJ, with whom the other members of the Court agreed, said:

"[67] Mr Cordara [counsel for the taxpayer] submits that it is of the essence of an assessment that it relates to a particular period. In my judgment, while this might be so in the generality of cases … it is necessary to look to see why the Commissioners included any item for a different period. Mr Cordara submits that there was in fact a very fundamental change in the characterisation of the underlying transactions. But we are told that the reason why the assessments as altered contained input tax and output tax relating to different periods was fortuitous. The fact was that some items were only claimed a month late. Nonetheless, they related to the same transactions as the original assessment. By that, as I understand it, he means that all the transactions formed part of the same group exit scheme as I have described above.

[68] Mr Cordara has not disputed the factual basis of the explanation given to us. His position is that he takes a different view of the effect of that explanation. He says that it is not a fortuitous but a radical change. However, I prefer the submission of Mr Pleming [counsel for the Commissioners] that these circumstances are permissible because the tax in question relates to the same series of transactions as are included in the original assessment. I do not consider that their inclusion would be contrary to the principle of fairness imposed on the Commissioners by public law. If the taxpayer is entitled to additional input tax in respect of a series of transactions, he should bear the burden of additional output tax that should have been borne on that series of transactions."

14. The same principles should apply, Mr Hitchmough said, where the positions were reversed. Moreover, not only was it necessary for the Commissioners to take into account all the tax relating to the series of transactions, but it was also their usual practice, as explained by Jonathan Parker LJ in Courts plc v Customs and Excise Commissioners [2005] STC 27, in which (at [9] to [11]) he described the process by which an assessing officer completes a form, VAT 641, by filling in boxes, laid out with one period to a row, and with several columns for each period, one showing tax due from the taxpayer to the Commissioners and another tax due from the Commissioners to the taxpayer. The two columns are totalled at the foot. If there is a net amount due to the Commissioners an assessment is made; if the balance is due the other way, a payment is made to the taxpayer. The process, even if at the end there is a balance due to the Commissioners, obviates the need for the taxpayer to make a claim in accordance with s 80.
15. Mr Hitchmough referred also to Weald Leasing v Revenue and Customs Commissioners (2007 VAT Decision 20003, since upheld, though on grounds not relevant to this appeal, by Lindsay J at [2008] STC 1601), another instance of what the Commissioners considered to be an abusive scheme, but in which they had, or but for the successful appeal would have, adjusted the trader's returns by reference to the transactions, rather than in a strictly segregated period-by-period manner. At para 36 the tribunal recorded that "successive assessments were made disallowing input tax totalling £2,140,195 for periods 10/00 to 04/02 but crediting back output tax totalling £842,187 for periods 10/00 to 10/02, the net tax assessed being £1,298,008". At para 115 the tribunal added that "The assessments in the present case were for repayment of input tax deducted in abuse of rights but gave credit for output tax; they precisely achieved the situation obtaining if there had been no abuse." (see paras 36 and 115 of the tribunal's decision). There was a suggestion by HMRC that taxpayers whose schemes had been redefined could secure repayment of the overpaid tax only by making a s 80 claim (see para 117) but the tribunal did not rule on it.
16. The manner in which the Commissioners had approached the redefinition of the transactions in BUPA Purchasing and Weald Leasing also supported Moorbury's argument that the Commissioners' approach in this case offended the principle of equal treatment. There was no reason why their normal practice should not have been followed here; as the Court of Justice put it in Marks and Spencer plc v Revenue and Customs Commissioners (Case C-309/06) [2008] STC 1408, at para 51 of its judgment, "the general principle of equal treatment requires that similar situations are not treated differently unless differentiation is objectively justified". Here, they had treated Moorbury not only in a manner which departed from their normal practice, but differently from Sunnyglen (which had been assessed on an overall net basis), and they had not advanced any objectively justifiable reason for doing so.
17. For the Commissioners, Aidan Robertson QC argued that Moorbury's arguments were misconceived because all that Community law requires is an effective remedy, and it does not concern itself with the manner in which the member States provide it. Such a remedy is provided by s 80 and, had Moorbury chosen to avail itself of it, as the Commissioners had invited it to do, its claim would have been met. If, for whatever reason (and none had been given), it allowed its claim to become time-barred it could not attempt to retrieve its position by some other means, since the only route for recovering overpaid VAT is to make a claim within s 80.
18. It is true that in Halifax the Court of Justice made it clear that when redefining an abusive scheme the taxing authority must reimburse any excess tax which had been paid, but it said nothing about the national procedural rules by which the right to reimbursement is governed. There was nothing in the judgment which ousted the requirements of s 80, which provides an entirely adequate means of recovering overpaid output tax and, by sub-ss (2) and (7), that

"(2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose."

"(7) Except as provided by this section, the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them."

19. The manner in which a claim is to be made is prescribed (by s 80(6) and reg 37 of the Value Added Tax Regulations 1995) but for present purposes the only relevant requirement is that the claim must be in writing.
20. It is also clear, Mr Robertson continued, that there is nothing offensive about a limitation period provided it does not render the exercise of the right excessively difficult: so much is apparent from the Court's judgment in Ecotrade SpA v Agenzia delle Entrate—Ufficio di Genova 3 (Joined Cases C-95/07 and C-96/07) [2008] STC 2626. At para 46 of its judgment the Court said

"a limitation period the expiry of which has the effect of penalising a taxable person who has not been sufficiently diligent and has failed to claim deduction of input tax by making him forfeit his right to deduct cannot be regarded as incompatible with the regime established by the Sixth Directive, in so far as, first, that limitation period applies in the same way to analogous rights in tax matters founded on domestic law and to those founded on Community law … and, second, that it does not render virtually impossible or excessively difficult the exercise of the right to deduct …".

21. Section 80 does not differentiate between Community and domestic law rights, and the first of the conditions is not relevant here. As to the second, Moorbury had about 15 months to make its claim, had been told by the Commissioners that it needed to do so and that they would accept a "without prejudice" claim, yet it had failed to make one. There is no warrant in Halifax for the Commissioners to override national procedural rules, including s 80, its requirement of a claim and the time limit it imposes. Many other organisations in Moorbury's position had made claims within s 80 and it was clear that there was no difficulty about doing so.
22. Moorbury's reliance on s 73 was, Mr Robertson said, misplaced since the section did not permit a negative assessment. In BUPA Purchasing Arden LJ also pointed out, at [38], that

"Section 73(1) states that an assessment under that section is of 'the amount of VAT due'. Accordingly, unless the assessment determines the net amount of VAT due it cannot be an assessment for the purpose of s 73(1). Similarly, in s 73(6) the assessment is described as an assessment 'of an amount of VAT due'. Thus there cannot be an appeal against an assessment under s 73(1) unless it assesses that there is a net amount of VAT due. If the taxpayer contends that he is entitled to a repayment of VAT, he will have to appeal on some other ground, such as against the amount of input tax allowed, and VATA makes express provision for this in s 83. Further support for the conclusion that an assessment must assess an amount due can be found in s 77(6) dealing with supplementary assessments: the power to issue supplementary assessments under s 77(6) is of the net amount of the excess which is due."

23. The facts of Weald Leasing were quite different, and if the decision (of the VAT and Duties Tribunal) was authority for the proposition that the Commissioners could make a negative assessment (which Mr Robertson did not contend it was), it had to be considered wrong in the light of what Arden LJ had said to the contrary in BUPA Purchasing.
24. The argument that the Commissioners had breached the Community law principle of equal treatment was no more than another way of putting Moorbury's second argument. Sunnyglen had not been treated differently; the assessment did set the over-charged output tax against the over-claimed input tax, but there was a net amount due from Sunnyglen to the Commissioners, and s 73 was the appropriate means of assessing that net amount. An assessment made in accordance with s 73 crystallises a debt due to the Crown; to crystallise a debt in its favour the taxpayer is required to make a claim, in this case in accordance with s 80. It is impossible to say that the need to make a claim amounts to an infringement of the right to equal treatment.

Conclusions

25. In my judgment the Commissioners are clearly right about the second and third of Moorbury's arguments. As Arden LJ said in BUPA Purchasing, s 73 of the 1994 Act allows the Commissioners to make an assessment when (in relation to a person) there is an "amount of VAT due from him"; it is not apt to allow a negative assessment. The section has the specific purpose of enabling the Commissioners to assess for tax in prescribed circumstances. It is evident from its wording that it is, as Mr Robertson argued, the means by which the Commissioners crystallise a debt due to the Crown. The Act provides other means by which a taxpayer may recover money he has erroneously paid, or failed to claim—s 80 of the 1994 Act in respect of overpaid output tax, reg 29 of the Value Added Tax Regulations 1995 for under-claimed input tax—and it does not seem to me that there is any need to interpret, or attempt to interpret, s 73 in a manner which allows of a negative assessment.
26. I do not perceive any breach of the principle of equal treatment; indeed, Mr Hitchmough's argument seems to me to be misconceived. This is not a case in which the United Kingdom's domestic law differentiates between Community and domestic rights, nor is it one in which it could be said that the Commissioners have exercised a discretion in a manner which is adverse to Moorbury, while exercising the same discretion, in like circumstances, in a manner favourable to other taxpayers. If Mr Robertson's argument that Moorbury's only avenue to repayment is a s 80 claim is right, the fact that the Commissioners may have made repayments to others despite their not having made such a claim does not, in my view, make it possible for me to direct them to treat Moorbury equally incorrectly. If, instead, Mr Hitchmough is right that a s 80 claim is not necessary, he has no need to call on the principle of equal treatment.
27. Moorbury's first argument does not lend itself to so simple an answer. There is force in Mr Robertson's argument that the VAT directives and the Court are generally content to leave the procedural rules to the member States, that Community law requires no more than an accessible remedy, that s 80 provides such a remedy and that, in this case, there was no evident impediment to Moorbury's availing itself of it. It is the plain legislative intention, as s 80(7) indicates, that the section contains an exhaustive code for the recovery by a taxpayer of overpaid output tax, and if that provision must be respected it necessarily follows that Moorbury has lost its claim for repayment of the tax.
28. On the other hand the Court of Justice could not have expressed its views more clearly in Halifax: a taxing authority redefining an abusive arrangement must, when recovering tax for which credit has been improperly obtained, subtract from it the tax overpaid, and must not impose a penalty. There is no qualification to para 96 of the judgment which might imply the requirement of a claim by the taxpayer. The Court's use of the phrases "must subtract" and "must reimburse" is inconsistent with the proposition that it had any such requirement in mind, and I agree with Mr Hitchmough that there is no room for one to be inferred.
29. It is necessary also to bear in mind what the Court said at para 92 of its judgment:

"… the measures which the member States may adopt … in order to ensure the correct levying and collection of the tax … must not go further than is necessary to attain such objectives … They may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT …".

30. In my judgment it follows from the Court's observations in Halifax that if the Commissioners determine to redefine abusive arrangements, they must redefine them in their entirety, making all of the adjustments which the redefinition entails. Taken together, as it is clear from their own terms they must be, paras 95 and 96 of the judgment can lead only to the conclusion that as a condition of demanding tax which has been underpaid the taxing authority must, unprompted, subtract any tax which has been overpaid. It is true that VAT liabilities are determined, normally, by reference to accounting periods, each such period being self-contained in that the output tax due and input tax to be credited for the period are set off against each other within that period, and a payment made in the requisite direction, and are not carried forward to the next period. But it does not seem to me that what is required by the Court conflicts with that practice. Redefinition, if properly and completely implemented, requires that the taxpayer's returns for each of the relevant periods are adjusted "so as to re-establish the situation that would have prevailed in the absence of the transactions constituting [the] abusive practice". If the process results (as may be the case here) in repayment returns for some periods and payment returns for others I see nothing which offends the domestic legislation in the Commissioners' collecting the overall net amount which is due or, as necessary, paying over the net sum due to the taxpayer. Nor do I see any practical or legislative impediment to redefinition by this means. It mirrors what the Commissioners were proposing to do, had Moorbury made a voluntary disclosure, as it is set out in the extract of their letter of 26 April 2001 which appears above.
31. The Commissioners' approach, by contrast, risks injustice to a taxpayer. The process of redefinition will, naturally, always be initiated by a taxing authority. If (as in this case) the output tax liability was declared before the input tax credit (or most of it) was claimed, it might so happen that it is possible to assess for what is due from the taxpayer, but the taxpayer is out of time to make a claim in accordance with s 80. In my view a one-sided redefinition, which would be the result in such a case, is not what the Court of Justice had in mind, and the risk alone seems to me to indicate that the Commissioners' argument is wrong. The neutrality of VAT, to which the Court referred at para 92 of its judgment, would be offended if redefinition had a one-sided result.
32. On that ground the appeal is allowed. I invite further submissions (in writing) on the question whether I should exercise the power conferred by para 7(3)(a) of Sch 3 to the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 in order to make an award of costs, should the parties be unable to agree. It may be a relevant factor that, although I have determined that a claim within s 80 was unnecessary, there was no obstacle to the making of such a claim, which I understand the Commissioners would have met, and it could be argued that it is Moorbury's failure to take the (apparently) simple step of making such a claim which has led to this appeal.
33. I conclude with brief reasons, as the parties requested, for a procedural decision I made in the course of the hearing. Mr Hitchmough asked me to admit in evidence an assessment against another trader which, he said, was a clear example of the Commissioners having adopted the approach he contended they should have followed in this case, that is of making a series of adjustments for and against the trader, without regard to the supposed need to confine adjustments within accounting periods. Mr Robertson objected, on the grounds that the document had been produced very late, after the hearing bundle had been agreed, and that it would cause prejudice to the Commissioners to be required to deal with additional evidence and a new argument with little or no notice. I decided to exclude the evidence on those grounds and because I was additionally not satisfied that the document was of any relevance.

COLIN BISHOPP

TRIBUNAL JUDGE

RELEASE DATE: 21 July 2009