For the Appellant: Stephen Hackett of Counsel, instructed by Griffin Law
DECISION
Introduction
1. The issue before the Tribunal is what the appellant describes as two materially identical strike-out applications (“the Applications”). The Applications are respectively dated 30 August 2022 for TC/2022/02199 (“the First Appeal”) and 21 September 2022 for TC/2022/01282 (“the Second Appeal”). Should the Applications be successful the appellant also sought various ancillary orders.
2. On 7 September 2022, I had refused an application dated 30 August 2022, and opposed by HMRC on 2 September 2022, to sist the Second Appeal pending the result of the Application in the First Appeal. Judge Cannan had directed on the same date that the Application in the First Appeal should be treated as a preliminary matter in those substantive proceedings. Judge Cannan then case managed both appeals and listed this hearing for both Applications.
3. The appellant had unsuccessfully attempted to challenge the case management decisions by Judge Cannan that the Applications be listed together before me to be heard in Edinburgh.
4. In terms of Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (as amended) (“the Rules”) the Applications should in fact be described as Applications to bar the respondents (“HMRC”) from the proceedings. Hereinafter I shall simply refer to the applications as (“the Applications”) but they are applications to bar.
5. HMRC vigorously object to both Applications.
6. The substantive issue in both appeals is an appeal against Information Notices.
7. In the Second Appeal, the Notice was issued on 6 May 2021 under Schedule 36 Finance Act 2008 and related to enquiries into the appellant’s corporation tax returns for the accounting periods ended 31 August 2017 and 2018.
8. In the First Appeal, the Notice was issued on 15 July 2021 under paragraph 40, Schedule 16 Finance (No 2) Act 2017 and Schedule 36 Finance Act 2008 and relates to HMRC’s suspicions that the appellant was an “enabler” of what were alleged to be abusive tax arrangements.
9. No arguments on the merits of either appeal were advanced in this hearing.
10. The Applications are predicated on the basis that HMRC, and those litigating for them, are conducting themselves inconsistently with the restrictions on the conduct of reserved legal activities provided for in the Legal Services Act 2007 (“LSA”). That is on the basis that these litigations have been conducted “at least partially in England” since the LSA has effect only in England and Wales.
11. The two litigators of HMRC who have conduct of the appeals are not solicitors. The appellant argues that because they are not solicitors they are in breach of section 14(1) LSA in that they had been and continue to be engaged in carrying on a reserved legal activity, namely the conduct of litigation before the Tribunal.
12. The appellant argues that that is an abuse of process and that in the interests of public policy the Tribunal should strike-out HMRC’s Statement of Case in terms of Rules 8(3)(b) and 8(7) of the Rules.
13. I heard no evidence. I had Skeleton Arguments from both Mr Hackett and Mr Simpson, KC. I had the Hearing and Supplementary Bundles for the Substantive appeal in the Second Appeal and an Authorities Bundle.
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