© 2024 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Procedure.Tax
For additional search results use Google and enter:
site:procedure.tax [search term]
P6: Setting decisions aside
Tribunal power
“(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if--
the Tribunal considers that it is in the interests of justice to do so; and
one or more of the conditions in paragraph (2) is satisfied.
(2)The conditions are--
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c) there has been some other procedural irregularity in the proceedings; or
(d) a party, or a party's representative, was not present at a hearing related to the proceedings.” (FTT Rules r.38(1) and (2))
​
UT rules 43(2).
Power to determine set aside application without a hearing
“(1) Subject to rule 26(6) (determination of a Default Paper case without a hearing) and the following paragraphs in this rule, the Tribunal must hold a hearing before making a decision which disposes of proceedings, or a part of proceedings, unless--
(a) each party has consented to the matter being decided without a hearing; and
(b) the Tribunal considers that it is able to decide the matter without a hearing.
(2) This rule does not apply to decisions under Part 4 (correcting, setting aside, reviewing and appealing Tribunal decisions).” (FTT Rules, r.29(1) – (2)).
Time limit: 28 days after notice of decision (subject to extension)
“(3)
A party applying for a decision, or part of a decision, to be set aside under [r.38(1)] must make a written application to the Tribunal so that it is received no later than 28 days after the date on which the Tribunal sent notice of the decision to the party.” (FTT Rules r.38(3)).
Power to treat other application as an application to set-aside or vice versa
“The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.” (FTT Rules r.42).
​
Treating as a different application removes appeal rights in respect of original application
​
“This classifies as an unappealable “excluded” decision a decision of this Tribunal to set aside its own decision. But s 11(5) TCEA does not make a decision not to set aside an excluded decision. I therefore accept that had I in fact made a decision not to set aside, the appellant would have had a right of appeal against that decision. But I consider that as I have treated the set aside application as an application for permission to appeal the 22 November 2016 decision of the Tribunal, there can be no right of appeal against a decision not to set aside the 22 November decision, as I have not made any such decision.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §30).
But can appeal the decision to reclassify
“If the person who applied to set aside the decision is dissatisfied with the outcome of the application to set aside the decision (that the application be treated under rule 42 as an application for the decision to be reviewed and for permission to appeal) that person has a right to apply to the Upper Tribunal for permission to appeal against the decision to reclassify the application.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §123).
Whether a direction can be set aside
“The Strike Out certainly disposed of proceedings but it is in the form of a Direction with reasons and is described as a direction on its face. If there is a distinction between a decision and a direction with reasons (and I reach no conclusion on this point) then it appears that rule 38 would not apply to the Strike Out as it is not a decision although rule 5(2), which refers to directions, would do so.” (Jumbogate Ltd v. HMRC [2015] UKFTT 0064 (TC), §41).
“…the question is entirely one of statutory construction … In some contexts the word ‘decision’ might well include an interlocutory decision such as a refusal of an adjournment or an order to disclose documents.” (Secretary of State for Work and Pensions v. Morina [2007] EWCA Civ 749, §50).
“We are satisfied that the word ‘decision’ in both s 11(1) and s 13(1) [of the 2007 Act] must be read broadly. That is the natural reading of the word. This 15 is particularly so where the structure of the section is to give a right of appeal generally, but then to carve out particular types of ‘excluded decision’ in relation to which there is to be no right of appeal. It is not a question of granting a right of appeal in relation to particular types of pronouncement which are then classified as ‘decisions’, but rather taking the general run of 20 decisions, and identifying particular types of excluded decision so that the right of appeal applies to all that are not excluded.” (LS v. London Borough of Lambeth [2010] UKUT 461 (AAC), §90).
“It also pointed out that in several cases, including at least two before this tribunal—Connect Global Ltd v HMRC [2010] UKUT 372 (TCC), [2011] STC 51 and Capital Air Services Ltd v HMRC [2010] UKUT 373 (TCC), [2011] STC 617—it has been assumed without argument or even comment that an appeal lies against an interlocutory decision. I might add that in Revenue and Customs Commissioners v Atlantic Electronics Ltd [2013] STC 1632 the Court of Appeal 10 made the same assumption in an appeal from this tribunal, which had decided an appeal from the First-tier Tribunal in respect of a case management decision.” (Carmel Jordan v. HMRC [2015] UKUT 218 (TCC), §23, Judge Bishopp).
Administrative act not a decision
“At the hearing, I suggested to Mr Frenzel that if the withdrawal had been made because of a mistake then he might like to consider whether to apply for the appeal to be reinstated. An application under Rule 17(3) must be made within 28 days of the date the Tribunal received the notice, ie by 19 July 2011 in this case, and so Orchid would also have to apply for an extension of time under rule 5(3)(a) of the Rules. I said that I would be prepared to consider granting an extension of time in order to enable him to do so and Ms Sukul said that HMRC would not oppose such an application. Mr Frenzel declined to make any application.” (Orchid Properties v. HMRC [2012] UKFTT 651 (TC), §25).
General purpose of power: aimed at procedural rather than substantive issues
“This is because that rule is limited to matters of procedure and what the claimant says is a matter of substance. In other words, the rule is concerned with how the Upper Tribunal handled the claimant’s application for permission to appeal. It does not provide a means of challenge to the decision itself or the reasons on which it is based.” (SK v. Secretary of State for Work and Pensions [2016] UKUT 529 (AAC), §7).
Document not sent to a party
Parties should not treat Tribunal as post box
“In his skeleton, Mr Beal stated that it is HMRC’s understanding that the UT would ordinarily serve any submissions received from one party on the other. I do not know where this “understanding” came from and Mr Beal could not enlighten me. It is not the practice of the UT to act as a post box for the parties’ submissions and correspondence nor does the UT serve documents on one party on behalf of another. Of course, if the UT spots that a material piece of correspondence has inadvertently not been copied to the other party then the UT will often simply forward the relevant item by email to that party. However, parties should not assume that the UT staff or the judge reviewing the papers will necessarily check that a particular document has not been served on the other side.” (Huitson v. HMRC [2017] UKUT 75 (TCC), §23, Judge Sinfield).
Not receiving a document that would have made no difference does not lead to set aside
“It is, however, unfortunate that Mr Huitson did not see the representations made by HMRC in the letter and formal response before I issued the EOT decision but, having heard the submissions by Miss Graham-Wells, I do not consider that further submissions would have caused me to reach a different decision. In particular, the issue of the number of taxpayers who would be subject to follower notices and accelerated payment notices is something of a red herring in this case. Whether the number was, as first stated by HMRC, 8000 or, as is the case, 1724, I regard it as a significant number which represented a significant amount of work on the part of HMRC. Accordingly, I 8 do not consider that it would be in the interests of justice for the EOT decision to be set aside on the ground that HMRC did not send a copy of the letter of 29 July and the formal response to Mr Huitson or Montpelier.” (Huitson v. HMRC [2017] UKUT 75 (TCC), §23, Judge Sinfield).
Document not sent to the Tribunal
UT not having a party’s PTA documents when considering application to notify appeal late
“I acknowledged at the hearing that I did not have Mr Huitson’s application or grounds of appeal available to me when I decided the application. Montpelier had not included those documents in their application to the UT on 6 July 2016. In my view, the fact that I did not have the grounds did not have any material impact on the EOT decision. Montpelier had made some submissions about the importance of the case which I referred to in paragraph 14 of the EOT decision. In any event, the seriousness and wider significance of the case were obvious from the figures for affected taxpayers and numbers of notices provided by HMRC and stated in paragraphs 15 and 29. Further, I stated in paragraph 31 that I had assumed, for the purposes of the application, that Mr Huitson had a good case. In my view, the fact that I did not have the application to the FTT available to me does not meet the condition or form any basis for setting aside the EOT decision.” (Huitson v. HMRC [2017] UKUT 75 (TCC), §28, Judge Sinfield).
Documents excluded from bundle
​
"[51] I can see nothing in the directions on 23 August 2017 which deals with responsibility for bundling. And the notice of hearing letter simply says that the parties should agree a bundle for the hearing. It does not say who has responsibility (if anyone) for creating that bundle nor when it should be served by the creator on either the tribunal or the other party. But in having taken on the responsibility for creating the bundle, as Mr Maples says, it should contain all documents which were agreed to go into that bundle, and it was up to HMRC to include in the bundle all the documents which Mr Maples had asked HMRC to include (or, to indicate following his request for that inclusion, their disagreement to that inclusion, on the basis for example of what they now say, namely that they were not relevant to the barring application)." (Maples v. HMRC [2020] UKFTT 305 (TC), Judge Popplewell)
​
Must be a link between unavailability of document and injustice
​
"[60] But, as I have said above, there needs to be a link between the absence of these documents in the bundle and the injustice which he says can only be remedied by setting aside the Decision." (Maples v. HMRC [2020] UKFTT 305 (TC), Judge Popplewell)
​
Link may exist if absent documents were relevant even if no attempt to rely on them made
​
"[67] His complaint is that, broadly speaking, because they were not in that bundle the Judge did not have an opportunity to consider them. But I cannot see anywhere that he drew the attention of the Judge at the hearing to any deficiencies in the bundle and the prejudice that he had therefore suffered in that he could not present his case fully and completely. I cannot see in his skeleton argument of 28 November 2017 any reference to documents which were not before the tribunal at the barring application. The appellant has provided as part of his submissions for the set aside application a useful note of the barring application which he made at or around the time of that application in which he records his view of the proceedings. From this it is seems that he made his application first and handed up and spoke to his skeleton argument of 28 November 2017. There is nothing in the note (and he made no submission at the set aside application to this effect either) that even though the bundles had been served on him only that morning, when making his submissions at the barring application, with reference to the bundles, he came across documents which he anticipated would have been the bundles but were not so included. He seems to have made his submissions on the basis of his skeleton argument and raised no point to the Judge that documents which he anticipated being in the bundle were not so included.
[66] So the question is whether the appellant has established the requisite link between the absence of the documents in the bundle and the injustice which he believes has been visited on him by the Decision. I think, on balance, that he has, notwithstanding the comments I make above regarding his lack of submissions in the set aside application regarding prejudice that he has specifically suffered as a result of the absence of those documents. As I say, his complaint is largely that the Judge did not have the full suite of documents before her to which she could have referred had she chosen to do so. The test is not one of prejudice (at least at this stage of the Rule 38 analysis). There is clearly a general link between the documents which were not in the bundles, the appellant’s case and the issues in the proceedings. He had raised all of these issues in his skeleton argument, and to my mind all documents which relate to those issues should have been before tribunal at the barring application. This includes the three cases, even though the appellant makes no submission that the Judge, in her Decision, came to an incorrect conclusion of the relevant law. Had he done so, of course, this would be a matter for an appeal to the Upper Tribunal point of law rather than for me on the set aside application." (Maples v. HMRC [2020] UKFTT 305 (TC), Judge Popplewell - but held not in the interests of justice to set aside)
​
Procedural irregularity
Failure to consider representations
“This decision replaces one issued in early May. That original decision was set aside because it was made without taking into account a letter of 6 May 2014 from Mr & Mrs Baldwin to the tribunal.” (Baldwin v. HMRC TC03755, §1).
Failure to consider authority
“In my opinion, it is clear from the authorities that each case must be looked at in the light of its own particular facts. I do not consider that the facts of Hysaj are so close to those of Mr Huitson’s as to indicate that that my decision not to extend time in his case amounts to “some other procedural irregularity”. Accordingly, I do not accept that the fourth condition for setting aside the EOT decision has been satisfied.” (Huitson v. HMRC [2017] UKUT 75 (TCC), §29, Judge Sinfield).
Unconnected defaults by the other party
“it appears that HMRC served their list of documents late but that was not relevant to the Strike Out.” (Jumbogate Ltd v. HMRC [2015] UKFTT 0064 (TC), §41).
Does not include failure to understand evidence/ unsupported finding
“The error on which [the taxpayer] relies is not of the same character. It occurred, not because a document which should have been available to me was absent, because [the taxpayer] was not present, or for any similar reason, but because (if [the taxpayer] is right) I failed to understand the evidence available to me, or made a finding which was not supported by that evidence. That is, classically, a judicial rather than procedural error. In my view the manner in which the rule has been drafted makes it clear that it was intended to apply only in the case of failings which have led to a flawed hearing, and that it cannot be extended to encompass judicial errors.” (Tager v Commissioners for Her Majesty’s Revenue and Customs [2015] UKUT 663 (TCC), §18, Judge Bishopp – parties agreed UT had mis-recorded tax at stake and therefore determined penalty incorrectly).
Alleged insult of representative not a procedural irregularity
“I do not consider that what Dr Milton complains of, an allegedly malicious and gratuitously insulting reference to him, is a procedural irregularity as that term is explained in SK and in the cases quoted there, including Tager. A procedural irregularity to be within sub-paragraph (c) has to be of the same kind as those in sub-paragraphs (a) and (b) which are specific examples of the commonest procedural irregularities.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §19).
Does not include failure to produce evidence
“I see no element of procedural irregularity in the simple fact that Mr Almond failed to produce the evidence that he required in order to prove his case on the amount of the mortgage interest or any documentary evidence at all about the maintenance and repair expenditure. Mr Almond had ample time to produce evidence to support his own position and has failed to do so. I conclude that the conditions of Rule 38 (2) are not satisfied in this case and therefore the application to set aside is refused.” (Almond v. HMRC [2017] UKFTT 659 (TC), §22, Judge McGregor).
“Whilst his failure to submit full evidence at the correct time might certainly be considered procedurally inadequate, I do not consider it to have been a procedural irregularity - the question of what evidence should be submitted in support of an appeal is a matter for each party to decide for himself in conjunction with his advisers, and I do not see how a decision to submit what turns out to be inadequate evidence could be regarded as giving rise to a "procedural irregularity".” (Fraser v. HMRC [2012] UKFTT 189 (TC), §37, Judge Poole).
Failure of judge to hear evidence
​
"[84] It was not opposed by Mr Marks. Mr Maples’ notice of hearing simply say that “NB eventually conceded that his point might be wrong.” There is no suggestion in those notes of meeting that this admission was somehow given “sotto voce” and thus was not heard by the Judge. However, for the purposes of this application, I am prepared to accept Mr Maples’ submission that it was not so heard, and thus it is my view that this was a general procedural irregularity." (Maples v. HMRC [2020] UKFTT 305 (TC), Judge Popplewell)
​
Does not necessarily include making finding of fact not sought by other party
​
"[76] I would be more sympathetic, and indeed it might be a procedural irregularity, if the appellant had not raised the Caroline Dartnall point at all, but the Judge of her own volition had gone on to make findings about it without referring to the parties. But this was not the case. The Judge was entirely free to consider the evidence before her and to decide which pieces of evidence she considered to be of importance, and on that basis come to findings of fact." (Maples v. HMRC [2020] UKFTT 305 (TC), Judge Popplewell)
​
- Failings which led to a flawed hearing rather than judicial errors
"[18] The error on which [the taxpayer] relies is not of the same character. It occurred, not because a document which should have been available to me was absent, because Mr Tager was not present, or for any similar reason, but because (if [the taxpayer] is right) I failed to understand the evidence available to me, or made a finding which was not supported by that evidence. That is, classically, a judicial rather than procedural error. In my view the manner in which the rule has been drafted makes it clear that it was intended to apply only in the case of failings which have led to a flawed hearing, and that it cannot be extended to encompass judicial errors." (Tager v. HMRC [2015] UKUT 663 (TCC), Judge Bishopp)
​
- Does not apply to failure to consider an argument
"[11] In summary, whilst he agreed that the phrase invites a wide interpretation, it must be interpreted consistently with what precedes, or in case surrounds it. The other sub-paragraphs provide examples of errors which affect the conduct of a hearing. Like the alleged error in that appeal the alleged error on which [the taxpayer] relies is not of the same character as the other examples.
[12] If it occurred, it was not because a document was not available to the Tribunal or because the appellant was not present but because we allegedly failed to consider an argument." (Beadnall Copley Limited v. HMRC [2022] UKFTT 324 (TC), Judge Anne Scott)
​
In the proceedings
Provision of written reasons is part of procedure
“The provision of formal written findings is as much part of the procedure of the tribunal as the trial process and the announcement of their decisions.” (Virdi v. Law Society [2010] EWCA Civ 100, §33).
​
Publication of decision not in the proceedings
​
“In my view it is at least arguable, on the basis of Virdi, that the insertion of the words complained of in the draft decision took place during the proceedings. But the insertion and publication of those words was not a procedural irregularity, for the reasons given in §§19 and 20.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §24, Judge Thomas).
Party or representative not present
CPR rule
“(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
…
(5) Where an application is made under paragraph … (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.” (CPR 39.3)
​
General principles
​
"[24] First, the application to appeal Judge Ellis's refusal under CPR 39.3 to set aside the Order. An application to set aside judgment given in the applicant's absence is now subject to clear rules. As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall[2000] EWCA Civ 379,the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.
[25] On the other hand, if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention for the protection of human rights and fundamental freedoms that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very
unusual circumstances indeed before the court would not set aside the order.
[26] The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.
[27] An appeal against a judge's decision under CPR 39.3 to refuse (or indeed to allow) an application to set aside a judgment does not, at least normally, involve challenging a discretion. However, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. The decision will often involve making findings of fact, and while the findings will normally be based on written evidence only, an appellate court should never lose sight of the principle that the first instance tribunal is the primary finder of fact. In so far as the decision involves a balancing exercise, an appellate court should pay proper respect to the judge's views. Another way of making essentially the same point is that the appellate court normally has a reviewing, as opposed to a rehearing function in such a case, and can therefore only interfere if satisfied that the judge was wrong." (Bank of Scotland v Pereira [2011] EWCA Civ 241 taken into account in Rashidi v. HMRC [2016] UKFTT 357 (TC), §41 and Robb v. NCA [2017] UKFTT 232 (TC), §§27 - 28)
​
Set aside following failed application to adjourn hearing: apply relief from sanctions principles
​
"[43]...In Gentry [Gentry v Miller and another [2016] EWCA Civ 141] Vos LJ explained:
"28…..The court must first consider the three mandatory requirements of CPR Part 39.3(5), before considering the question of whether relief from sanctions is appropriate applying the Denton tests. Again, the sanction from which relief is sought is the order granted when the applicant failed to attend the trial, not the delay in applying to set aside the resulting judgment. The promptness of the application is a pre-condition under CPR Part 39.3(5)(a) and is considered as part of all the circumstances under the third Denton test."
[44] As was stated in Siamak Balenagni v Mostafa Sharifpoor [2020] EWHC 1571 (QB) at [39], the remaining discretion, after satisfaction of the three questions in CPR Part 39.3(5), is sufficient to incorporate the Denton principles arising under CPR Part 3.9." (Fatima v. Family Channel Ltd [2020] EWCA Civ 824, Carr LJ)
​
But, less stringent test than for adjournment
​
"[46] First, is clear that an application under CPR Part 39.3(3) is not an appeal of any sort (or, for that matter, an application to vary the previous decision not to adjourn and/or proceed in the absence of a party). It can be pursued instead of, or in appropriate circumstances alongside, an appeal: see Pereira at [26] and [37] (set out above).
[47] Secondly, CPR Part 39.3(3) to (5) provide for a specific procedural remedy with its own self-contained code of applicable principles, albeit subject, on the question of ultimate discretion, to a consideration of CPR 3.9 (which reflects the overriding objective) and the Denton principles.
[48] Thirdly, there is a material distinction between an application for adjournment of a trial and an application to set aside a judgment under CPR39.3(3), the latter justifying a less draconian approach: see TBO Investments at [26] (set out above) and followed in Emojevbe at [21(ii)]. The approach to the question of whether or not there is a good reason for non-attendance is different (and more generous to the applicant) under CPR Part 39.3(3)) than it is on an application to adjourn.
[49] For these reasons, the hearing of an application under CPR Part 39.3(3) involves a separate exercise of discretion which is unfettered by any previous exercise of discretion on an adjournment application.
[50] Finally, an appellate court will be slow to overturn a judge's decision under CPR Part 39.3 to refuse or allow an application to set aside, unless satisfied that the judge was wrong in principle: see Pereira at [27] and also TBO Investments at [24].
[51] It follows from the above that the Judge's reasoning was flawed. There is no principle of consistency or judicial comity which requires the judge hearing the application under CPR Part 39.3(3) to follow the trial judge and the Judge was wrong to hold otherwise (as he did at [26] and [27]). It is open to the judge hearing the application under CPR Part 39.3(3) to reach a different decision on the same facts." (Fatima v. Family Channel Ltd [2020] EWCA Civ 824, Carr LJ)
​
Medical grounds: must explain why the person could not attend the hearing
“Even without taking a robust approach to the medical evidence it is clear that the evidence said to justify the Appellant’s non-attendance is inadequate. It does not address the question of whether the Appellant’s condition was such as to prevent him from attending or participating in the appeal hearing. That is entirely separate from whether he had been able properly to prepare for the hearing. The non-appearance of the Appellant without prior notice meant that the Tribunal had no opportunity to consider what if any arrangements could be made to proceed in a fair manner. Further, the Appellant clearly accepted at the time that the hearing might have to proceed in his absence.” (Robb v. NCA [2017] UKFTT 232 (TC), §39, Judge Cannan).
​
Medical grounds: should give FTT prior notice
“I also take into account in this application that it is desirable for litigation in this Tribunal to be conducted efficiently and at a proportionate cost. The Appellant failed to warn the Tribunal that he had been unable to prepare his case and the first intimation that his medical condition had prevented him from preparing was the email received after the hearing had commenced. This was not the first time that a late or last minute application to postpone was made. There is no explanation as to why it was made so late.” (Robb v. NCA [2017] UKFTT 232 (TC), §42, Judge Cannan).
Deliberate decision not to attend
“the fact that [the Appellant] was not present or represented at the hearing was due to its own deliberate choice and it would not be in the interests of justice to allow [the Appellant] to rely on its own decision not to attend the hearing as a ground for setting aside a decision that disposes of proceedings.” (Jumbogate Ltd v. HMRC [2015] UKFTT 0064 (TC), §41).
Negligent failure to attend
“I must weigh all these factors in deciding whether it is in the interests of justice to set aside the Decision. In particular the Appellant did not have a good reason for not attending the hearing. I take into account nature of his failure, both in failing to monitor his emails and in failing to engage with the Tribunal when he received the Respondents’ application for an unless order. I take into account the prejudice he will suffer and the prejudice which would be suffered by the Respondents. In the light of all the circumstances it seems to me that the interests of justice lie in not setting aside the Decision.” (Rashidi v. HMRC [2016] UKFTT 357 (TC), §52).
HMRC’s failures potentially contributing to decision not to attend
“Although Judge Wallace considered that the transfer of jurisdiction from the General Commissioners to the Special Commissioners had not been unlawful, he understood the Appellant's objections to it. Judge Wallace evidently regarded as significant the fact that the Appellant had been told that he could have a local hearing but the hearing before Judge Nowlan had been listed in London. Further the date of the listing (26 March 2009) was (which Judge Nowlan had not known) a date when Mr. Martin Wright, by then assisting the Appellant on a pro bono basis, was on holiday and for that reason not available. Additionally, HMRC had failed to comply with directions of the Tribunal in producing material without a direction, in failing to serve a Skeleton Argument on the Appellant and in sending in material late. Judge Wallace observed that if HMRC had complied with the directions of the Tribunal and done so in proper time, 'this may well have caused the Appellant to think again about not attending'.” (Philip John Wright v. HMRC [2011] UKFTT 824 (TC), §31 reporting decision to set aside decision of Special Commissioners. The case had an unusual procedural history.)
Nothing to suggest FTT’s decision was wrong
“Thus, although Mr A was not present at the hearing, there is nothing in his email which indicates that the Tribunal took a wrong turning as a result of his absence…If this decision were set aside, a further hearing would be required. This would involve costs for HMRC and the Ministry of Justice and a consequential delay to the administration of justice for other court users…I find that the interests of justice are firmly in favour of refusing the application.” (Arabacilar v. HMRC [2016] UKFTT 53 (TC), §§90…91…92).
Set aside must be in the interests of justice
Findings re absent persons integrity may be a relevant factor
​
"[16] ...(3) This is not a case of a kind where the taxpayer's honesty or integrity are in jeopardy, or where findings have been made as to honesty or integrity." (Rogers v. HMRC [2020] UKFTT 297 (TC), Judge McNall)
​
Set aside would make no difference to outcome
“Even if one or more of the conditions in rule 43(2) is met, I must consider whether it would be in the interests of justice to set aside the EOT decision. It seems to me that it would not be in the interests of justice to set aside the EOT decision on the basis of the submissions made to me. None of the submissions satisfied me that there was any good reason or explanation for the delay in making the application for an extension of time to provide a notice of appeal or that HMRC and affected taxpayers would not suffer prejudice if I were to grant the extension.” (Huitson v. HMRC [2017] UKUT 75 (TCC), §30, Judge Sinfield).
Costs of set aside application
No costs where application caused by successful party’s default
"At the end of the hearing, Mr Beal applied for an order that Mr Huitson pay the costs incurred by HMRC in opposing the applications. I refused that the application on the ground that HMRC’s failure to copy their letter of 29 July and formal response to Mr Huitson or Montpelier gave rise the application and hearing. In my opinion, if HMRC had copied the documents to Mr Huitson or Montpelier then the application to set aside the EOT decision would probably not have been made or, if made, would probably have been dealt with on the papers without the need for a hearing. I considered that it would not be fair or just to require Mr Huitson to pay HMRC’s costsin those circumstances." (Huitson v. HMRC [2017] UKUT 75 (TCC), §38, Judge Sinfield).
Appeal against refusal to set aside PTA decision on grounds of procedural irregularity
"[27] It is correct that the Act provides that decisions by the Upper Tribunal on whether to grant or refuse permission to appeal to it against decisions of the First-tier Tribunals are, as a matter of substance, decisions for the Upper Tribunal. There can be no appeal to the Court of Appeal against that decision: see section 13 of the Act. There will have been an opportunity for consideration of the correctness of the original decision of the First-tier Tribunal by the Upper Tribunal. However, the assumption is that the Upper Tribunal will consider that application for permission in a procedurally proper and fair manner. An applicant can seek to have the Upper Tribunal set aside a refusal on the basis that the Upper Tribunal has not determined the application to set aside the earlier decision in a procedurally correct way. If the Upper Tribunal is said to have determined that application in a procedurally incorrect way, there is no reason why the appellant should be precluded from appealing to the Court of Appeal on that basis. There will, otherwise, have been no oversight of the decision of the Upper Tribunal by another court to ensure that it is procedurally correct." (Plescan v. Secretary of State for Work and Pensions [2023] EWCA Civ 870, Lewis, Baker, Snowden LJJJ)
​