United Kingdom VAT & Duties Tribunals (Excise) Decisions

 


E1011

LONDON TRIBUNAL CENTRE Reference No: LON/2000/8013

Copy sent to:

Appellant/Applicant

Respondents

ANDREW WILLIAM HARRIS Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: DR DAVID WILLIAMS (Chairman)

Sitting in private in London on 19 December 2006

UPON HEARING Mr Steven Walsh of counsel, instructed by West London Law, solicitors, for the Appellant and Mr J Holl, Officer of Revenue and Customs, for the Respondents

AND UPON CONSIDERING the direction of the tribunal in this matter given on 31 March 2006 after hearing counsel for both parties, and released on 1 April 2006

AND HAVING REGARD TO Rules 18 and 19 of the Value Added Tax Tribunal Rules 1986

THIS TRIBUNAL DIRECTS that this appeal be dismissed under rule 19(4) of those Rules for failure to comply with the direction of the tribunal in paragraph 2 of its directions issued on 1 April 2006.

REASONS

1. At the end of the hearing the tribunal reserved its position to reconsider the applications made by reference to the papers on file in this appeal. These reasons are given in anticipation of a request for a written document containing reasons being made under Rule 30 of the Value Added Tax Tribunal Rules 1987.
2. The tribunal had before it at the hearing competing applications from the parties. The Appellant asked that there be a further stay of the time limit, now expired, in direction 2 of the directions of the tribunal issued on 1 April 2006. That direction gave the parties notice that the tribunal may be dismissed without further notice or hearing unless the Appellant served the documents identified on the Respondents by 12 May 2006 at the latest. The Respondents asked that the appeal be struck out under Rule 19 as warned in that direction. In the alternative, the Respondents invited the tribunal to strike out the appeal under Rule 18 for want of prosecution and because it was vexatious.

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3. The tribunal reminded the parties of the long history of this case. The underlying events occurred in August and November 1999. Fuel was sampled from vehicles and tanks belonging to the Appellant in August 1999 as a result of which vehicles were seized in November 1999 for contraventions of the Hydrocarbon Oils Duties Act 1979. A decision notifying fixed penalties was issued in February 2000. The formal departmental review of that decision was concluded by a letter dated 4 May 2000. The Appellant's notice of appeal from that decision was received by the tribunal on 31 May 2000. The Respondents statement of case and list of documents were received by the tribunal on 22 December 2000. Directions for the hearing of the appeal were issued by the tribunal on 25 April 2001 after hearing the parties. The matter made little progress in the next four years.
4. This appeal was listed for further directions on 31 March 2006 together with two other unrelated appeals by the Appellant against decisions of the Respondents. This was done in January 2006 when it was noted that nothing at all had happened on this file for over a year. The Appellant was represented by counsel at that hearing, and the Respondent was also represented by counsel. At the hearing on 31 March 2006 the tribunal directed, with the agreement of the parties, that each of the three appeals listed to be heard together should be considered separately. The tribunal noted no progress in this case for some time, and also the date of the original appeal. Having heard counsel for the Appellant, the tribunal agreed with the submission of counsel for the Respondents that the Appellant be directed to provide all relevant documents and evidence within a short stated time with a warning that the case would be struck out if there were no compliance. The Appellant was specifically directed to produce documentation about the public funding, a skeleton argument, details of witnesses, and copies of all documentary evidence.
5. Since the issue of that direction on 7 April 2006, there has been no effective compliance by the Appellant or those representing him with any part of the direction. There was confusion on the part of the Appellant or those representing him between this appeal and the other two appeals listed together in March 2006, notwithstanding that the tribunal issued separate directions on each of the three appeals and clearly indicated on the face of each of the directions that they were to be considered separately. Nonetheless, the solicitors asked for extra time in May 2006. A period of grace was given by letter of 14 days from the date of a letter from the tribunal on 22 June 2006. By coincidence the Appellant appeared before the chairman of the tribunal on another matter on 6 July 2006. The officer representing the Respondents at this hearing was also there. The Appellant indicated that he wished to discuss this appeal, although it was not listed for hearing. The chairman did not enter into detailed discussions but, with agreement from the Respondents, did ask the clerk to provide the Appellant with a further copy of the directions of 31 March 2006 and reminded him of the time limit in it. This was done. The Appellant's solicitors wrote the following day stating that they had thought that this appeal was listed for hearing with the other appeal and that they had only just become aware of the terms of the direction issued on 1 April 2006.

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6. A letter from the tribunal dated 26 July 2006 stated that the chairman awaited either compliance with the direction by the Appellant or an application that the appeal be struck out from the Respondents. As nothing further was heard from either party, the case was listed again for hearing today. That listing was notified by letter on 25 October 2006. A letter from the Appellant's solicitors dated 10 November 2006 stated that a further application was being made for public funds. A further letter from the tribunal on 4 December 2006 asked the solicitors for further information. There was no direct reply. A letter from the solicitors on 15 December, mentioning the 19 December hearing date, asked for a copy of an order striking out this appeal and the application appealing that strike out. There is no such order or application.
7. Because of the confusion at the time of the original directions being issued of which it was informed, the tribunal did not seek to act on its "unless" direction when the time limit expired. Instead, it allowed a further period after the letter in June and again after the hearing in July. It is clear from the letter from the solicitors on 15 December 2006 that they had still not identified what the tribunal had directed in this case despite the direction being reissued informally directly to the Appellant and the matter having also been explained in letters from the tribunal staff. It was also clear at the hearing that Mr Walsh was not aware of the directions issued on 1 April 2006 and had received no instructions from his instructing solicitors about those directions.
8. Even giving the fullest allowance to the Appellant and his solicitors for loss of post and confusion between the various appeals being prosecuted by the Appellant, the tribunal does not accept that the Appellant and those advising him have any reasonable excuse for the continued failure to comply with the direction issued on 1 April 2006. Those directions were issued after hearing from counsel for both parties. Counsel for the Appellant was informed at that hearing of the direction to be made by the tribunal. This was then notified to the Appellant twice. And the solicitors clearly knew about it in July at the very latest if not when counsel returned her brief and the official copy of the direction was issued. The Appellant and solicitors have twice been given informal extensions of the time period for compliance with the directions in correspondence. Yet their correspondence and representations indicate that they have yet to act on those directions.
9. It is now over seven years since the events that gave rise to this appeal. The tribunal was told at the hearing that it would still be some weeks before the Appellant's case could be assembled, documents identified and relevant witness statements submitted. All those matters should have been done by the time limit set in the direction of 1 April 2006, if not long before. The tribunal has neither seen nor heard any reasonable excuse for the continued failure to comply with its directions.
10. Mr Holl objected strongly to any further extension of time on any ground. He argued not only that the tribunal should now enforce its directions issued in April 2006 but also that there was no advantage to the Appellant in the appeal by reason of other sums owed to the Respondents while the appeal continued to absorb considerable amounts of public funding. There were grounds to strike the appeal out as vexatious at this stage.

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11. The tribunal takes its decision following its direction issued on 1 April 2006 under the authority of Rule 19(4) of the Value Added Tax Rules 1987. It notes the argument that the powers in Rule 18 would also be available but declines to act on that ground as no notice of that application was given to the Appellant.

DAVID WILLIAMS

Chairman

Release Date: 8 January 2007