[17]“ 15. A number of further matters in relation to third party notices of this kind are well established by reference to the predecessor s. 20 TMA 1970 scheme and apply with equal force to Sch.36 notices, as the parties agreed. First, and significantly, as held in R v Commissioners of Inland Revenue ex parte T C Coombs & Company [1991] 2 AC 283, 300C-F, 302E-F (Lord Lowry) the Tribunal is the independent person designated by Parliament with the duty of supervising the exercise of HMRC's intrusive powers. Parliament designated the officer as the decision-maker and the Tribunal as the monitor of the decision. A presumption of regularity applies to both, and is strong in relation to the Tribunal in particular. … 17. Secondly, there is no statutory appeal against notices such as those presently in issue. The only available avenue of challenge generally open is judicial review. However, these are investigative powers and Parliament has in effect decided that once the officer and, on application to it, the Tribunal, is satisfied that use of Sch.36 para.3(3) as a tool of the investigation is appropriate, it is not appropriate to provide an avenue of appeal about how the investigation should proceed. The courts should therefore be careful to avoid giving by the avenue of judicial review what is, in reality, an appeal against the Tribunal's decision. It is only exceptionally or for clearly identifiable reasons that the court will interfere to set aside a notice. ” 39. Ms Nathan submitted that there was no evidence to rebut the presumption of regularity. Simply because the hearing was conducted in the absence of the applicants was not sufficient to rebut that presumption. 40. It does not seem to me that I am concerned with the presumption of regularity in these applications. The presumption of regularity would be a matter for a court in judicial review proceedings. 41. Miss Yang submitted that the applicants were not seeking to appeal the approval decision or undermine the finality of the decision. They were seeking to set it aside only on procedural grounds. In particular she says that there was a procedural irregularity in hearing the approval applications on an ex parte basis. Procedural irregularity is one of the conditions which engages Rule 38. Whilst Miss Yang also relied on Rule 38(2)(a) and (d), it is the alleged procedural irregularity which lies at the heart of these applications. 42. Ms Nathan’s principal submission was that Rule 19 excluded the possibility of an application under Rule 38. Where a matter is determined without notice, the respondent is not entitled to participate in the proceedings. 43. Miss Yang submitted that Rule 19 only applies where an application is properly brought and heard without notice. In the present circumstances she says that there could have been no proper basis to make or hear a without notice application. In those circumstances she submitted that Rule 38 is available to the applicants and provides a means to redress a procedural irregularity. 44. In support of her case that there was a procedural irregularity, Miss Yang made three main submissions, which to some extent overlap: (1) The approval of information notices without notice to the taxpayers was contrary to natural justice and the taxpayers’ human rights. (2) As a matter of construction Paragraph 3(2A) does not permit the approval application to be made and heard without notice save in cases of secrecy or urgency. (3) On the particular facts, the applications and hearings should not have been made and conducted without notice. 45. Miss Yang submitted that there was no requirement of secrecy or urgency in the present cases and the taxpayers had a right to be heard (in Latin, audi alterem partem ). 46. Ms Nathan submitted that in any event there was no suggestion of a procedural irregularity. The applicant’s voice had been heard through the written representations. 47. In Derrin Brother Properties, Simler J was concerned with Schedule 36 in the context of challenges by way of judicial review to various third party notices. She stated at [27]:[27]“ By application also dated 30 July 2012, Mr Pandolfo sought approval from the Tribunal to the giving of the third party notices … and a direction that the hearing should be ex-parte. He stated in the application that if it were heard in public the case might be prejudiced (no doubt because his ability to put information before the Tribunal would be hampered and because of the possibility of unwittingly disclosing information or material that was confidential or might reveal the hand of the ATO and thereby prejudice the investigation). ”48. I was referred to a number of authorities concerning the obtaining of interim remedies in civil litigation such as` National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] 1 WLR 1405 . I do not consider that those authorities are of direct assistance in the present context.49. More relevant is R v City of London Magistrates, ex parte Asif [1996] STC 611 where the Court of Appeal was concerned with Paragraph 11 Schedule 11 Value Added Tax Act 1994 and orders by a magistrate for access to recorded information. At p618d Kennedy LJ said as follows: “ My conclusion therefore is that although para 11 of Sch 11 enables the commissioners to seek orders ex parte they must in each case consider, and any magistrate to whom they apply must also consider, whether it is appropriate to proceed in that way, bearing in mind that the balance is always in favour of proceedings inter partes unless there is real reason to believe that something of value to the investigation may be lost if that course is adopted. ”50. Miss Yang also relied on the taxpayers’ rights to a fair trial under Article 6 of the European Convention of Human Rights and under Article 47 of the Charter of Fundamental Rights of the European Union . See for example in relation to the right to be heard the decision of the European Court of Human Rights in Van Orshoven v Belgium (1998) 26 EHRR 55 . It does not seem to me that in the present context these rights add anything to the principles outlined in ex parte Asif .51. Turning to the construction of Paragraph 3(2A), it reads as follows: “ An application for approval under this paragraph may be made without notice (except as required under sub-paragraph (3)) ”52. Ms Nathan submitted that use of the word “may” conferred a discretion on HMRC whether to apply for approval ex parte or on notice. That was a discretion to be exercised by HMRC in the context of their powers under the Commissioners for Revenue & Customs Act 2005 .53. Ms Nathan also accepted that Paragraph 3(2A) confers a discretion on the tribunal whether to hear an application ex parte or on notice. In Miss Yang’s submission, the sub-paragraph was “permissive” of a without notice application, but did not require a without notice application. The same point was made by Simler J in Derrin Brother Properties at [11]. I accept that submission.54. It seems to me that there is no real issue between the parties as to the construction of Paragraph 3(2A). The real difference between them is the way in which that discretion should be exercised. That is a matter for the tribunal in the first instance, and in the absence of a right of appeal for a court on judicial review.55. Miss Yang referred me to various extracts from Parliamentary debates in Hansard when the provisions of Schedule 36 and in particular Paragraph 3(2A) were being debated in Parliament. In my view there is no ambiguity to be resolved or any other reason on the basis of Pepper v Hart [1993] AC 593 to admit such material. Parliament has given discretion to HMRC and to the tribunal. The scope of that discretion is not something that falls to be construed by reference to Hansard (See R v Environment Secretary ex parte Path Holme Ltd [2001] 2 AC 349 at 392 ).56. Miss Yang’s third and principal submission was that in the light of her first two submissions and on the facts, in so far as the applicants know the relevant facts, the hearing should not have been without notice to the taxpayers. These were marketed tax avoidance schemes and the position of HMRC was public knowledge. Indeed the Working Wheels scheme had been the subject of a decision in the F-tT in a decision released on 20 February 2014 ( Flanagan & ors v HMRC [2014] UKFTT 175 (TC) ).57. Miss Yang says that the consequences for the applicants are stark. The decision to approve the notices followed a procedural irregularity and cannot be appealed. The Tribunal has heard from only one side.58. Miss Yang invited me to adopt the practice in civil proceedings of making provision for a return day so the applicants can be heard. It does not seem to me that the procedure in Schedule 36 or the Rules contemplates such a course. In my view applications under Paragraph 3 are to be heard with or without the taxpayer being present depending on the circumstances. It is not appropriate to direct a return day for applications heard ex parte to be heard inter partes.59. Miss Yang referred me to a note in Tilley & Collison’s UK Tax Guide 2013-14 . At [3.55] the Guide says: “ In cases where HMRC do not wish taxpayers to appeal against taxpayer notices they can arrange for the taxpayer notice to be pre-approved by the Tribunal. ”60. If that paragraph is intended to suggest that HMRC can simply choose to adopt the Paragraph 3 procedure with an ex parte hearing then I do not think it is right. Ms Nathan accepted that there is a discretion, but it must be exercised reasonably. A footnote to that paragraph reads as follows: “ Anecdotal evidence suggests that HMRC are regularly adopting this approach even where there is no issue of secrecy, thereby precluding the recipients of notices any right of appeal. ”61. Ms Nathan submitted that the discretion to apply for approval without notice is not restricted to circumstances where secrecy is required. She gave as an example where an inter partes hearing may result in a breach of confidentiality owed to another taxpayer.62. I do not propose to take into account anecdotal evidence. Whether or not secrecy or urgency is the only basis to justify the without notice procedure may be open to question. However it is not necessary for me to express any view on that issue.63. If the applicants have reason to believe that there was no justification for the notices to be approved, so that Paragraph 3(3)(b) was not satisfied, then their means of challenge would be through judicial review rather than an appeal. Quite rightly that is not how they put their case on these applications. The question before me concerns the position if there was some procedural unfairness in the approval of the Information Notices.64. In my view the terms of Rule 19 are clear. It is intended to prevent any participation in the proceedings by the respondent to a without notice application. Participation in the proceedings is a wide term and in my view it precludes an application to set aside any decision which follows a without notice application.65. I do not consider that the overriding objective requires any different interpretation of Rule 19, for example by reading into Rule 19 a qualification that it only applies to a matter that was properly determined without notice. In my view in the present context Rule 19 together with Schedule 36 are intended to achieve finality, subject only to judicial review.66. It is well established that procedural unfairness in a tribunal may be remedied through a procedural remedy such as an application to set aside, through an appeal or by way of judicial review. If there is no procedural remedy or any avenue of appeal then judicial review might be available.67. In the circumstances of these cases I consider that Rule 38 is disapplied by Rule 19. I do not have jurisdiction to set aside the decision approving the Information Notices.68. I have already indicated that the applicants all made written representations. None of the applicants requested an oral hearing. In those circumstances I am not satisfied that there was any procedural irregularity in hearing the applications ex parte.69. If there had been procedural unfairness, the appropriate remedy would be by way of judicial review. Application for Written Reasons70. The Applicants rely on Rule 35(6) as requiring the tribunal to send full written reasons for the decision to approve the application notices. Miss Yang says that fairness requires that justice should be seen to be done and that written reasons would be expected. She relied on a decision of the Privy Council in Stefan v General Medical Council [1999] 1 WLR 1293 .71. Ms Nathan submitted that the requirement for a decision under Rule 35 is predicated on the existence of rights of appeal. I am not sure that is right. There are a number of areas, outside of the realm of information notices, where there is no right of appeal but where the Tribunal would be expected to release a written decision. See for example the “excluded decisions” for the purposes of Section 11 Tribunals, Courts and Enforcement Act 2007 .72. The application however is again answered by reference to Rule 19. In this context I consider that Rule 35 would require a document to be provided to a respondent, that is a decision notice or full written reasons. However it is disapplied by Rule 19(a).73. Miss Yang pointed to the anonymised reasons given by the F-tT in Application by HMRC [2009] UKFTT 195 (TC) and re An Application [2009] UKFTT 224 (TC) . Those written reasons were provided as a matter of discretion by the tribunal and in the latter case at the request of HMRC. I do not consider that these decisions set any precedent as to the provisions of written reasons.74. In the case of Derrin Brother Properties Judge Berner also provided written reasons in anonymised form. His reasons for doing so appear at [5] and [6] of the decision:[5]“ 5. As is customary for applications of this nature, I had directed that both the hearing on 19 September 2012 and the resumed hearing on 23 November 2012 should be in private. Unusually, and given the nature of certain of the representations made, I am publishing my reasons for concluding that none of those representations prevented me from giving my approval to the issue of the third party notices. 6. This decision does not record my reasons for being satisfied that all the relevant conditions were satisfied in this particular case. It deals only with those matters that I consider will be of general interest. ”75. It is notable that Judge Berner expressly excluded from his decision the reasons why he was satisfied that that the conditions for approval of the notices were met.76. It is clearly only in very exceptional cases that the F-tT does provide written decisions in relation to the approval of information notices. I do not consider in the present cases that there is any good reason to provide a written decision as to why I was satisfied that the conditions for approval of the notices were met. Application for a Note of the Proceedings77. The application seeks a direction that HMRC provide copies of all documents, information and submissions relied on by HMRC at the ex parte hearings, together with notes of the hearings.78. Miss Yang relied on a decision of Lightman J in Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd (unreported) , the decision of the Court of Appeal in Memory Corporation Plc v Sidhu [2000] 1 WLR 1443 and Kelly v British Broadcasting Corporation [2001] Fam 59 .79. These are authorities which apply in the very different context of ex parte applications for interim remedies in civil proceedings. It is apparent from the context set out above that different considerations apply in relation to the approval of information notices. It is not appropriate for me to make the direction sought by the applicants. Again, it is precluded by Rule 19. Application for an Extension of Time for a Further Set Aside Application80. The application also sought a direction that the time to make a further application to set aside the approvals should be extended to cover the possibility that additional grounds to set aside may emerge.81. I see no reason to prospectively extend time for a further application to set aside the approvals. Conclusion82. For the reasons given above the applications are refused.83. The present applications were heard in private on the basis that they were applications to set aside a decision which itself followed a hearing in private. Both parties were content with that position. I will however give consideration to the publication of this decision given the nature of the issues. Both parties will have an opportunity to make representations as to whether and how this decision should be publicised.84. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. JONATHAN CANNAN TRIBUNAL JUDGER RELEASE DATE: 16 May 2014