© 2024 by Michael Firth KC, Gray's Inn Tax Chambers
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Procedure.Tax
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Q7a: Excessive delay to decision
Does the delay undermine the factual findings?
"[110] [HMRC] did not advance the delay in producing the Decision as a separate ground of appeal but rather, as we have noted, he submitted that the deference accorded to the FTT's findings of fact was, in this case, weakened by the delay. We agree with that submission, in principle, but the force with which it applies in any particular case will be fact-dependent.
[111] We accept in the present case that the original Decision, delivered on 1 September 2021, was very substantially delayed. Such a delay is unsatisfactory, for the reasons given in NatWest Markets and the authorities cited therein. However, in the present case it is clear, as we have noted above, that the FTT paid careful attention to the oral evidence[4]. We assume and infer, not least on the basis of this careful attention, that the FTT made use of the transcript of the oral evidence to assist its memory. Beyond this, we note that the delay in the present case was nine months which, while less than desirable, is not of the same order as the periods of delay in NatWest Markets and Goose. Ultimately, the question is whether the delay in the delivery of the original Decision undermines the findings of fact made by the FTT and the evaluation of the evidence by the FTT. In the circumstances of the present case we do not think that it is possible to conclude that the findings of fact made by the FTT or the evaluation of the evidence by the FTT have been undermined by the delay in the delivery of the Decision. We accept that, even where the validity of a judgment or decision is not in fact undermined by delay, there are good reasons for judgments and decisions to be handed down as promptly as possible, as explained by the Chancellor (as he then was) in Bank St Petersburg. In the present case we do not consider that the Decision has been undermined by the delay." (HMRC v. Marlborough DP Ltd [2024] UKUT 98 (TCC), Edwin Johnson J and Judge Brannan)
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Causal link between excessive delay and alleged failing in judgment: lower threshold for intervening
"[83] The issue of delay in producing a judicial decision was addressed by the Court of Appeal in Natwest Markets Plc & Anor v Bilta (UK) Ltd & Ors [2021] EWCA Civ 680. In that case the High Court judgment was handed down after a lengthy delay of 19 months after the final closing submissions at trial. In relation to the effect of delay the Court of Appeal said this:
53. In Goose v Sandford, Peter Gibson LJ went on to explain the approach to be taken at [113]:
"Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weaken the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, [the trial judge] denied himself the opportunity of making this further check in any meaningful way."
54. These observations have been cited with approval in numerous subsequent authorities, including the Bank St Petersburg case. In that case at [80] the Chancellor also quoted what Lord Scott said in Cobham v Frett [2001] 1 WLR 1775 at p.1783 about what must be shown if excessive delay is to be relied on in attacking a judgment:
"A fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant…" but
"[i]t can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party."
55. Thus, as Lord Hodge JSC put it in Pickle Properties Ltd v Plant (British Virgin Islands) [2021] UKPC 6 at [28], "[t]here must be a basis for believing that there may have been a causal link between the excessive delay and the alleged errors or failings in the judgment."
Thus, there must be a causal link between the excessive delay and the alleged failings in the judgment which form part of the grounds of appeal." (The How Development 1 Ltd v. HMRC [2023] UKUT 84 (TCC), Judge Thomas Scott and Judge Brannan)
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1 year delay unacceptable
"[82] The hearing before the FTT took place on 30 January 2020 and the decision was issued on 15 January 2021. That is a delay of almost one year. Plainly, it is undesirable, indeed unacceptable, for a decision to be delayed for that length of time unless there are exceptional circumstances, such as the illness of a member of the tribunal panel. We note that the delay took place during the early part of the Covid pandemic, although we do not know whether that was relevant." (The How Development 1 Ltd v. HMRC [2023] UKUT 84 (TCC), Judge Thomas Scott and Judge Brannan)
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Appellate court more ready to infer relevant factors not considered
"[96] This is where the delay becomes a significant factor on this appeal. A judge is not required to address every point and, when a judge has evidence on which to base their findings of fact, the mere fact that there is evidence pointing the other way which the judgment does not address is not a justification for allowing an appeal. A judgment given in a timely fashion can be assumed to have been prepared with a full recollection of the relevant evidence. If it were possible to assume that the Judge had had the hit list and the relevant emails in mind when drawing the relevant conclusions, then an appellate court could take the view that he did not mention the evidence because he simply did not think it outweighed the other material before him which was supportive of his conclusions.
[97] However, the 19 month delay means we cannot make that assumption. We are in no position to say that the Judge's finding that questions were not asked at the CarbonDesk dinner was plainly wrong, but in these circumstances, considering the significance of the evidence which was not referred to, that is not the test. The question is whether we can be satisfied that the finding is right (Bond v Dunster Properties). We regret to say that we cannot. These contemporaneous documents support a view of the facts very different from the one the Judge found. They do corroborate aspects of Mr Gygax's evidence and could, for example, lead one to conclude that he had not given false evidence about the dinner, even if he had lied about his knowledge of VAT on carbon trading.
[...]
[121] Part of the claimants' argument in effect contends that these points cannot be said to be significant omissions from a judgment which, on the face of it, was prepared with considerable care and attention to detail. As we have tried to explain, in other circumstances that submission might have had real force. But its force is blunted by the 19 month delay to the judgment, after a trial of about five weeks. The key documents were among a number of factors relied on by the defendants as being inconsistent with the Traders dishonestly turning a blind eye to a VAT fraud, and in a case like this where there was no direct record of what was said at the dinner, they cannot be treated by us as minor or peripheral. They could have made a difference to the outcome, and the Judge's omission to address them cannot be treated as immaterial.
[122] Having subjected this judgment to the appropriate degree of scrutiny in the light of the delay, we are not satisfied that the Judge's findings and conclusion on this key issue were right. We have reluctantly concluded that in fairness the judgment cannot be allowed to stand. We are compelled to allow the appeal on Ground A and, in the circumstances, we believe the only right course is to remit this matter to the High Court to be re-tried by a different judge. It is a highly unpalatable prospect, but we believe it is the right thing to do. As we have already explained, we cannot say what the right result is in the action itself. It may be that when the matters are examined in the round these extra documents change nothing at all. Conversely, they may lead a judge to come to a very different conclusion. That is why the matter must be re-tried, recognising that such a trial will take place at an even longer distance of time from the relevant events." (Natwest Markets Plc & Anor v Bilta (UK) Ltd & Ors [2021] EWCA Civ 680)
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"[85] In this case, Mr Boch contends that Mr Warren’s oral evidence went unrecorded in the Decision and that the delay in producing the Decision meant that the FTT could or might not have had a clear recollection of Mr Warren’s oral evidence.
[86] We agree that, although the FTT summarised Mr Warren’s written statement, the Decision does not specifically allude to Mr Warren’s oral evidence. In particular, Mr Boch argues that the Decision does not reflect certain points emphasised in that oral evidence.
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[90] We have carefully considered whether we should conclude that the Appellant has failed to establish the complaint regarding Mr Warren’s oral evidence, and has as a consequence failed to establish any causal link between the one year delay and that complaint. However, we must take into account that (1) the Decision contains no discussion at all about oral evidence which took up half a day of the hearing, (2) the delay in issuing the decision was substantial, (3) the deficiency complained of relates to oral witness evidence, where the risk of unreliability in detailed recall increases with the passage of time, and (4) it is not the Appellant’s fault that no judge’s notes have been produced.
[91] We have concluded on balance that the Appellant succeeds on this ground. We reach this conclusion with some reluctance, not least because we consider that the Appellant should have raised this issue in its application for permission to the FTT, so that the judge could have responded. However, we acknowledge that at the stage of that application, the focus of the grounds of appeal was on the arguments pre-Hyman. In view of the absence of any mention of Mr Warren’s oral evidence in the decision, the delay in issuing the decision and the absence of any response to the issue from the judge, we have concluded that in the language of Lord Scott in Cobham v Frett, the Decision is not “safe”." (The How Development 1 Ltd v. HMRC [2023] UKUT 84 (TCC), Judge Thomas Scott and Judge Brannan)
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Parties offered opportunity for re-hearing
"The Tribunal is conscious of the considerable length of time between the hearing of this appeal and the publication of its decision. This delay was, most regrettably, caused by the onset of illness during the Covid-19 pandemic and its lingering after-effects. Once it was appreciated that this decision would be so considerably delayed, the parties were offered the possibility of the appeal being re-heard by a differently constituted Tribunal. In the event, they decided to refuse that offer, and to await the release of this decision. The Tribunal wishes to record its gratitude to the parties for their patience and forbearance during that period." (NWM Solutions Limited v. HMRC [2023] UKFTT 364 (TC), Judge Austen, Appendix)
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