Non-party may inspect private documents at the First-tier Tribunal

An important new decision of the First-tier Tax Tribunal will enable taxpayers not party to a hearing to obtain details of HMRC’s written arguments – see Hastings Insurance Services Limited v [2018] UKFTT 0478 (TC)

 

Introduction

KPMG LLP (‘KPMG’) applied to the First-tier Tribunal (“FTT”) for copies of HMRC’s statement of case and both parties’ skeleton arguments in this appeal, despite not representing either party.  It made the application solely in order to better understand HMRC’s arguments which, according to KPMG, were relevant to their own arguments in a different case in which they were instructed. In support of their application for access to the documents, KPMG relied on a decision of the Upper Tribunal (“UT”)  in Aria Technology Limited v HMRC [2018] UKUT 111 (TC) (‘Aria Technology’).

 

Legal background

In the civil courts, i.e. the rules of Court governing proceedings in the High Court, County Court and Court of Appeal, Rule 5.4C of the Civil Procedure Rules (‘CPR’) provide that a person who is not a party to civil proceedings may obtain certain documents from the records of the court as of right and other documents with the permission of the court.  However, there is no such provision in the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (‘FTT Rules’).   Accordingly, the First-tier Tribunal can only allow a non-party to have access to documents if it has an inherent jurisdiction to do so.  The inherent jurisdiction of a court or tribunal to allow a member of the public to have access to and inspect documents relating to proceedings in that court or tribunal is founded on the fundamental constitutional principle of ‘open justice.’

 

The FTT’s judgement

The Tribunal began by stating that the FTT Rules do not expressly allow the First-tier Tribunal to allow a non-party to inspect or have access to documents relating to proceedings. However, there  were two possibly relevant rules:

  1. Rule 14 of the FTT Rules which enables the FTT to make an order prohibiting the disclosure or publication of specified documents or information, suggesting that  there was no general rule against disclosure of the same;
  2. Rule 32(1) of the FTT Rules which provide that, subject to very limited exceptions,  all hearings must be held in public, thus engaging the principle of open justice is engaged in the First- tier Tribunal as it is in other

 

In Aria Technology, the UT had observed that CPR 5.4C provides that a non-party can, with permission, obtain access to any documents that have been filed and are in the court records and the right to access to such documents is not limited to documents that have been referred to in open court nor is there any requirement that a hearing must have taken place. The UT said:

‘Although CPR5.4C does not apply to the First-tier Tribunal, I do not consider that means that the Tribunal is unable to allow non-parties access to such documents……..The right to obtain a copy of the statement of case or judgment is an expression of the principle of open justice which applies to the First-tier Tribunal as it does to the courts. I consider that the First- tier Tribunal has an inherent jurisdiction to allow a non-party to inspect documents in its records that are the equivalent of the documents in CPR5.4C(1).…….In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape’, Hamblen LJ, with whom the other members of the Court agreed, summarised the position at [112] as follows:

 “(1) There is no inherent jurisdiction to allow non-parties inspection of:

  • trial bundles;
  • documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred
  • There is inherent jurisdiction to allow non-parties inspection of:
    • Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 13.
    • Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has
    • Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are
    • Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open ”
  1. It is clear from [92] of Cape that the “similar advocate’s documents” referred to in [112(2)(iii)], includes chronologies, dramatis personae, reading lists and written closing submissions and any other documents provided to the court to assist its understanding……..

 At [129], Hamblen LJ stated that the factors relevant to the exercise of the inherent discretion to provide access to documents are likely to include the same factors as under CPR5.4C, namely:

 “(1) The extent to which the open justice principle is engaged;

  • Whether the documents are sought in the interests of open justice;
  • Whether there is a legitimate interest in seeking copies of the documents and, if so, whether that is a public or private
  • The reasons for seeking to preserve
  • The harm, if any, which may be caused by access to the documents to the legitimate interests of other ”

 

HMRC’s objections

Unsurprisingly, HMRC objected to KPMG’s request “on the basis of taxpayer confidentiality, pursuant to s18 Commissioners for Revenue and Customs Act 2005, and that the First- tier Tribunal Rules make no provision for disclosure or inspection of a party’s skeleton argument by a third party.”

The FTT did not agree.

‘ HMRC’s first objection is misconceived and can be dealt with quite shortly. Section 18 of the 2005 Act provides that HMRC officials may not disclose information held by HMRC subject to various exceptions. KPMG has not sought disclosure from HMRC but from the Tribunal……HMRC’s second objection is that the First-tier Tribunal has no power to allow a non-party to have access to and inspect documents because the FTT Rules do not contain any provision equivalent to CPR 5.4. I have already dealt with this objection in my discussion of the inherent jurisdiction of the Tribunal. The fact that the FTT Rules do not specifically provide that the First-tier Tribunal may allow a non-party to inspect documents does not mean that the Tribunal may not do so if, as I have concluded for reasons set out above, it has an inherent jurisdiction to allow such access.’

 

Legitimate purpose

The FTT also considered that KPMG has a ‘legitimate purpose’ in requesting access to the documents. The FTT said:

‘……..I consider that the concept of legitimate interest is a broad one and certainly not confined to journalistic purposes. It is clear from [135] and [136] of Cape that an entirely private or commercial interest, such as an interest in related litigation, in a document can qualify as a legitimate interest. The public interest of a pressure group involved in lobbying and promoting knowledge about asbestos and its safe use, as in Cape, can also qualify as a legitimate interest. KPMG say that they are seeking access to better understand HMRC’s arguments in the appeal which are relevant to HMRC’s arguments in a different case in which they are instructed. In the light of Hamblen LJ’s comments in [135] and [136] of Cape, I consider that a legitimate interest does not require a direct personal or professional interest in the outcome of proceedings. In my view, an interest in other related litigation, whether actual or in contemplation, is sufficient. Accordingly, I find that KPMG have a legitimate interest in obtaining access to the documents requested.’

 

Levy and Levy comment

It is worth bearing in mind that in this case the Appellant also objected to KPMG’s application as well as HMRC and this is a measure of how controversional the FTT’s judgement is, because it erodes some of the privacy that a taxpayer taking a case to the FTT may feel entitled to.  On the other hand, it does have the effect of upholding the ‘open’ nature of justice and enabling taxpayers to understand and anticipate the arguments which may be raised against them at their own hearings, and of course to ensure that HMRC acts fairly towards them by not adopting a contradictory stance.

Given its importance, we suspect that this case will be appealed to the Court of Appeal so watch this space!

 

Levy and Levy – the tax controversy specialists