First-tier Tribunal (Tax)

[2015] UKFTT 511 (TC)

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TC04669

Appeal number:  LON/2007/1103

 

 

 

FIRST-TIER TRIBUNAL

TAX CHAMBER

 

 

 

	FIRST CLASS COMMUNICATIONS LIMITED	Appellant
	- and -
	THE COMMISSIONERS FOR HER MAJESTY’S	Respondents
	REVENUE & CUSTOMS

 

 

 

TRIBUNAL:

JUDGE BARBARA MOSEDALE

 

 

 

 

Sitting in public at the Royal Courts of Justice on 25 June 2015

 

Having heard Mr S El Homsi for the Appellant and Mr H Watkinson for the Respondents

The Tribunal rejected the appellant’s application for  a postponement of today’s hearing.  The grounds of the application were that Mr El Homsi had received HMRC’s application for a postponement of the hearing and consented to it:  he had then released his adviser from attendance today.  He then heard that the Tribunal had refused HMRC’s application for adjournment but Mr Rashid was no longer available to attend. Mr El Homsi had also not had time to read the bundle or HMRC’s skeleton as these were only handed to him that morning due to HMRC only being recently aware of the hearing.

 

 

© CROWN COPYRIGHT 2015

 

The Tribunal rejected the appellant’s application on the grounds it was in the interests of justice to make what progress could be made in readying this case for hearing today.  In particular, this was a long outstanding matter and if at all possible postponements of interim hearings should be avoided; the appellant ought to have been prepared for this hearing: it should not have assumed that the Tribunal would postpone it just because the appellant consented to HMRC’s application; Mr El Homsi had received the notification of the hearing and ought to have notified HMRC and the Tribunal that he had not received the skeleton when due; Mr El Homsi had decided to represent the company and therefore must do so; the Tribunal had the appellant’s position in various emails written by Mr El Homsi and in particular an email dated 27 February of this year and Mr El Homsi today had confirmed the appellant’s position had not changed.  In so far as it was Mr El Homsi’s case that he was not prepared to represent the appellant because he had received but not read various communications from HMRC, this was not a meritorious excuse as he continued to maintain that he was the representative of the company, representing it in this appeal.

Nevertheless, Mr El Homsi was given half and hour to read the skeleton; this also enabled Mr Watkinson to read the applications just made by Mr El Homsi for disclosure and an electronic bundle, which had not been copied to HMRC.

IT IS DIRECTED that

1.              it is confirmed that Mr Kerrigan’s witness statement was admitted into evidence following the agreement of the parties as recorded in the transcript of the hearing before me on 16 January 2013 subject to the redactions there recorded (for the avoidance of doubt, paragraphs 167, 168, 177, 178, 179, 183 and 184 are not relied on by HMRC and should be treated as deleted from the statement).

2.              The reason for this decision is that the matter was decided by consent between the parties over 2 years ago and is no longer in issue; nothing said by the appellant has suggested any possible ground on which the Tribunal would have jurisdiction to re-open an issue that was resolved over two years ago by consent.  It is not open to the appellant simply to change its mind and particularly not so long after the event.

3.              the appellant has until 4 pm on 2 July 2015 to make written reasoned objections filed with the Tribunal and HMRC to the below orders failing which the orders will be treated as made.  But if the appellant does so file reasoned written objections then (a) HMRC has the right no later than 4pm on 10 July 2015 to file a written objection with the appellant and the Tribunal and (b) the Tribunal will then determine the matter on the papers based on HMRC’s representations today and the appellant’s written objections and any response from HMRC filed as above.

4.              The orders referred to in paragraph 3 are:

(1)          Mr Bradshaw’s witness statement is hereby admitted in substitution for Mr Kerrigan’s;

(2)          The costs in this appeal in so far as they reflect work on that element of the appeal against the decision by HMRC to refuse input tax on the grounds the invoices were inadequate will be split so that work before 1 April 2009 falls into the 1986 Tribunal Rules on costs (an open costs regime) and work on or after 1 April 2009 falls within the 2009 Tribunal rules on costs (no costs shifting save in cases of unreasonable behaviour/wasted costs);

(3)          The costs in this appeal in so far as they reflect work on that element of the appeal against the decision by HMRC based on the ruling in  Kittel will also be in an open costs regime (either under the 1986 Tribunal rules as this is now a 2007 consolidated appeal or under the 2009 Tribunal rules on the basis this was a complex appeal from which the appellant did not opt out of costs) and in particular in so far as the appellant was applying for an extension of time to opt out of the open costs regime this would be refused;

(4)          HMRC have until 31 July 2015 to comply with direction 4 of the directions dated 6 February 2015, and the other directions will have consequential extensions as follows:

(a)          Direction 5 – 29 January 2016;

(b)          Direction 6 -  29 January 2016;

(c)          Direction 7 – 5 February 2016;

(d)         Direction 8 – 12 February 2016 with dates to avoid for a hearing in the period March 2016 to March 2017 and dates to avoid for a pre-hearing review in the period March-April 2016

5.              The Tribunal also noted that Mr El Homsi had complained about the legibility of either part of Mr Bishop’s witness statement or some of the exhibits thereto:  Mr El Homsi was put on notice that he had until 4pm on 2 July to clarify exactly which sections he considered to be illegible or the Tribunal would presume that he was able to read them.

6.              The appellant’s application dated 18 June 2015 for disclosure of some 28,000 IMEI numbers was dismissed on the basis that Mr El Homsi failed to explain in the hearing why this information would have any relevance to the case he wished to put in the hearing of the appeal.  The Tribunal noted that this application had been mooted by the appellant in 2012 yet not filed until mid-2015 and then it was filed without any explanation of why the information sought would be relevant. 

7.              In particular, the Tribunal noted that, on questioning, Mr El Homsi appeared to constantly change his ground on why these numbers would be relevant and that none of the grounds given made any sense.

8.              So while the appellant was at liberty to renew the application, he was on notice that he should not do so without a full and coherent explanation of why these IMEI numbers would assist the appellant’s case and why this application has not been made much earlier.

9.              The Tribunal did not consider whether the application for disclosure should be dismissed on the grounds that HMRC did not hold the information, as Mr Watkinson had no instructions on this matter.  The appellant is on notice that if it chooses to renew the application it ought to first seek to ascertain from HMRC whether they actually hold the information sought.

10.           The appellant’s application dated 18 June 2015 for the trial bundle to be provided in electronic as well as paper format was dismissed.  The Tribunal accepted that the preparation of an electronic bundle in circumstances where the exhibits were only held in paper form was extremely expensive and there was no good reason to put HMRC to that additional expense.  If the appellant wished to have an electronic bundle, the appellant would need to scan the paper bundle at its own expense.

 

 

BARBARA MOSEDALE

 

TRIBUNAL JUDGE

RELEASE DATE: 26 JUNE 2015