M28: Transfer of proceedings

Transferring a case to the Upper Tribunal

 

“(1) If a case has been allocated as a Complex case the Tribunal may, with the consent of the parties, refer a case or a preliminary issue to the President of the Tax Chamber of the First-tier Tribunal with a request that the case or issue be considered for transfer to the Upper Tribunal. 
(2) If a case or issue has been referred by the Tribunal under paragraph (1), the President of the Tax Chamber may, with the concurrence of the President of the Tax and Chancery Chamber of the Upper Tribunal, direct that the case or issue be transferred to and determined by the Upper Tribunal.” (FTT Rules r.28)

 

Query whether consent not to be unreasonably withheld

 

“Furthermore, even if rule 28(1) had provided that such consent should not be unreasonably withheld, it does not appear to me, on the material presently before me, that the refusal to consent would here be categorised as unreasonable. Mr Jeremiah points out that although the case may be of a complex nature, it is nonetheless a case that would ordinarily be disposed of by the Firsttier Tribunal and there would otherwise be no pressing need for a transfer to the Upper Tribunal, given the necessary composition of that tribunal. I accept that evidence.” (R (oao Hankinson) v. HMRC [2009] EWHC 1774 (Admin), §20).

 

Transfer to UT without a party’s consent under r.5 (considerable doubt)

 

“(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction. 
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may by direction—
…
(k)
proceedings and, because of a change of circumstances since the proceedings were started-- 
transfer proceedings to another tribunal if that other tribunal has jurisdiction in relation to the 
(i) the Tribunal no longer has jurisdiction in relation to the proceedings; or 
(ii) the Tribunal considers that the other tribunal is a more appropriate forum for the determination of the case;” (FTT Rules r.5(2) – (3)).

 

“It appears to me of considerable doubt whether the Tribunal has the power to order a transfer in circumstances which are covered by the specific rule 28, but in any event, without resolving that issue finally, it appears to me that there would indeed be a significant contest on the application of rule 5 to the circumstances of this case.” (R (oao Hankinson) v. HMRC [2009] EWHC 1774 (Admin), §22).

 

Emergency transfer where FTT issue appears before UT (UT judge not necessarily a FTT judge) 

 

“When the hearing started before me…the statutory appeal was listed before me sitting in the First-tier Tribunal. This did not appear to be a satisfactory situation, not least because I was not authorised to sit in the First-tier Tribunal…over the adjournment, successful steps were taken to transfer the statutory appeal to the Upper Tribunal.” (HMRC v. Dhanak [2014] UKUT 0068 (TCC), §9, David Richards J).