“(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Tribunal may give directions as to– (a) issues on which it requires evidence or submissions; (b) the nature of the evidence or submissions it requires;…”
“(2) The Tribunal may give a direction adding a person to the proceedings as a respondent. (3) A person who is not a party to proceedings may make an application to be added as a party under this rule. (4) If the Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the Tribunal. (5) If the Tribunal gives a direction under paragraph (1) or (2) it may give such consequential directions as it considers appropriate.”
“5. Observing on the first day of the hearing that the CIOT was present in the person of (possibly among others) Ms McCarthy, its Counsel who had made those written submissions, and believing that I should have the benefit of hearing her submissions in detail and that both parties should have the opportunity to respond to them fully, I gave a direction that she be permitted also to address this Tribunal orally. The CIOT’s interest is that further appeals, claims for judicial review and other disputes with HMRC, where taxpayers face similar consequences to those affecting Mr Lobler, have been stayed pending the outcome of this appeal. In its application under r.5 (3)(d) of the Rules the CIOT gave details of some of those other cases. The CIOT is in the process of gathering information from other interested parties and professional bodies in order to make a formal submission to HMRC and the Treasury with a view to obtaining a change in the law. 6. Both Judge Sinfield and I made (unopposed) orders under r.10 (4) of the Rules that each party to the appeal on the one hand and the CIOT on the other should bear their own costs in relation to the application and their respective submissions, written and oral.”
“…that flexibility has limits and one of them is the elementary point that it should not be used to subvert the fundamental nature of the litigation being conducted.”
“Let the advocates one after the other put the weights into the scales - the ‘nicely calculated less or more’ - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties : see In re Enoch & Zaretzky, Bock & Co .”
“in a major case in the tax or lands tribunals the sums may be as great, and the issues as complex, as in any case in the High Court, and the procedure will be modelled accordingly.”
“A person who is not willing to become a party and subject itself to the control of the Tribunal in the appropriate way is, in my submission, not permitted to circumvent that requirement by making an application in some other way.”
“Of course it needs stating that these are, admittedly in an informal environment, adversarial proceedings. It is not a public inquiry. The Tribunal is invited by the rules to arrive at what it sees as the right answer on the basis of the evidence adduced by the parties. It is not invited to arrive at what it perceives to be the right answer on the basis of any evidence it could conceivably see.”
“If you were to take the step, an entirely novel step and we would say a radical one, of permitting a non-party to both control and influence the evidence to be adduced about a particular topic, you would open the floodgates to any party who could contend that they had an interest in tax litigation to adduce evidence… That will put the Tribunal in future in a very difficult position of having to address all such applications, form a view about whether it's appropriate, exercise its discretion and then possibly, if it accedes to it, end up with evidence being adduced by a non-party over whom it has no obvious sanction and against whom it can make no cost orders.”
“(5) In subsection (4) ‘wasted costs’ means any costs incurred by a party-– (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or (b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay. (6) In this section ‘legal or other representative’, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.”
“37. There is nothing in the wording of the relevant rules that justifies either a different or particular approach in the tax tribunals of FtT and the UT to compliance or the efficient conduct of litigation at a proportionate cost. To put it plainly, there is nothing in the wording of the overriding objective of the tax tribunal rules that is inconsistent with the general legal policy described in Mitchell and Denton . As to that policy, I can detect no justification for a more relaxed approach to compliance with rules and directions in the tribunals and while I might commend the Civil Procedure Rules Committee for setting out the policy in such clear terms, it need hardly be said that the terms of the overriding objective in the tribunal rules likewise incorporate proportionality, cost and timeliness. It should not need to be said that a tribunal's orders, rules and practice directions are to be complied with in like manner to a court's. If it needs to be said, I have now said it. 38. …The interests of justice are not just in terms of the effect on the parties in a particular case but also the impact of the non-compliance on the wider system…”
“there is no doubt that the court's inherent power to regulate its own procedures is not unlimited. For example, the power may not be exercised in contravention of legislation or rules of court… In such a case, its power has been removed by statute and cannot be exercised.”
“[19] In proceedings which are not regulated by statute or statutory rules, it might be thought that there are no limits to the inherent power of the court to regulate its own procedure and that it has an untrammelled power to manage litigation in whatever way it considers necessary or expedient in the interests of justice…. [20] … [21] But even in an area which is not the subject of statute or statutory procedural rules, there are limits to the court's inherent jurisdiction to regulate how civil and criminal proceedings should be conducted… [22] For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded. These (admittedly extreme) examples show that the court's power to regulate its own procedures is subject to certain limitations.”
“In a contest purely between one litigant and another…the task of the court is to do, and be seen to be doing, justice between the parties... There is no higher or additional duty to ascertain some independent truth.”
“It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter; yet, if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered, and it is so ordered on the application of one of the parties who must make out his case for it. If he is not able to do so, that is an end of the matter. There is no independent power in the court to say that, nevertheless, it would like to inspect the documents, with a view to possible production, for its own assistance.”
“An inquiry was quite unlike civil litigation, its object being to ensure that citizens closely affected had the opportunity to be heard in support of their objections and to ensure that thereby the minister was better informed of the facts of the case when he came to make his decision.”
“…to engage in the sort of inquisitorial function that Mr Hopkin [representing the Appellant] suggests or, therefore, to engage in an investigation as to whether further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law…”
“…there is no presumption that the procedure will necessarily follow the adversarial model which (for the time-being at least) is the hallmark of civil court procedures. In a specialist tribunal, particularly where parties are not represented, there is more scope, and often more need, for the judges to adopt an inquisitorial approach. This has long been accepted in respect of social security benefits (see Kerr v Department for Social Development[2004] UKHL 23 ,[2004] 4 All ER 385 ,[2004] 1 WLR 1372 , paras 61 - 63, where Lady Hale spoke of the process of benefits adjudication as ‘inquisitorial rather than adversarial…a co-operative process of investigation in which both the Claimant and the department play their part’). However, there is no single approach suitable for all tribunals. For example, in a major case in the tax or lands tribunals, the sums may be as great, and the issues as complex, as in any case in the High Court, and the procedure will be modelled accordingly.”
“Most tribunals are concerned with the resolution of disputes between the citizen (whether an individual or a corporation) and the state. Some are concerned with appeals against decisions within a statutory scheme: the oldest and the largest systems respectively deal with liability to deliver taxation, and entitlement to welfare benefits. Others consider such matters as the rights to immigration or asylum status, or detention under the Mental Health Act. Many other tribunals involve appeals against decisions of central or local regulatory bodies (often themselves independent of Government but an essential part in the delivery of overall Government policies). These disputes should form the heart of the Tribunals System. They include the areas where users stand to gain most from the more focussed approach to the provision of information, the training of members, and the development of consistent procedural approaches which we recommend. The detailed design of the System will, however, need to take account of the diverse origins of these bodies, the expert knowledge which lawyers and other members will have to have of often formidably complicated areas of the law, and wide varieties in the weight and complexity of cases.”
“A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes . A claim to benefit is a claim to receive money out of the insurance funds fed by contributions from all employers, insured persons and the Exchequer.”
“But it can at least be said that a claimant under s 134(1)(a) of the Benefits Act is not in the same position as a litigant. His position is similar to that described by Diplock J in R (on the application of Hubble) v Medical Appeal Tribunal (North Midland Region)[1958] 2 QB 228 ,[1958] 2 All ER 374 , 240. The claim to benefit in that case was a claim to receive money out of insurance funds fed by contributions from all employers, insured persons and the Exchequer.”
“Any such claim requires investigation to determine whether any and if so what amount of benefit is payable out of the fund. In such an investigation the Minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action. Where the claim is for disablement benefit, a necessary step in the investigation is the determination of one or more questions of medical fact and opinion, and accordingly, where such a claim is made section 39 (1) makes it mandatory upon the insurance officer to refer ‘the case’ of the claimant to a medical board for the determination, not of the claim, but of the disablement questions which require to be investigated. As an expert investigating body it is the right and duty of the medical board to use their own expertise in deciding the medical questions referred to them. They may, if they think fit, make their own examination of the claimant and consider any other facts and material to enable them to reach their expert conclusion as doctors do in diagnosis and prognosis of the case of an ordinary patient. Just as it is ‘the case’ of the claimant which is to be referred to the medical board by subsection (1) of section 39, so also it is ‘the case’ of the claimant which is to be referred to the medical appeal tribunal under subsections (2) and (3). The effect of these subsections is, in our view, to substitute in the cases to which they apply another and presumably more highly qualified expert investigating body for the medical board, and we see no grounds for holding that their function is any different from that of the medical board, namely, to use their own expertise to reach their own expert conclusions upon the matters of medical fact and opinion involved in ‘the case’ of the claimant.”
“[62] What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced. [63] If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof...”
“…the appeal tribunal has power to consider any issue and make any decision on the claim which the decision-maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim.”
“It is not in our judgment open to doubt that, as an appeal tribunal under theSocial Security Act 1998 hearing the claimant’s appeal against the departmental determination revoking her entitlement to benefit, Mr Warren was sitting as an ‘inquisitorial’ tribunal. By that we mean his function was to carry out a complete reconsideration and redetermination for himself of the facts and merits of the decision under appeal, the purpose being to ascertain and determine the true amount of social security benefit to which the claimant was properly entitled: see R v. Deputy Industrial Injuries Commissioner ex parte Moore 1 QB 456 and R v. Medical Appeal Tribunal ex parte Hubble 2 QB 228 referred to above; the Commissioners’ case R(S) 4/82 (especially paragraph 25) and the recent decision of a Tribunal of Commissioners in CIB/4751/2002 [reported as R(IB) 2/04] (especially paragraph 32); and the further recent reaffirmation of the principle in Kerr v. Department for Social Development (Northern Ireland) UKHL 23 [R1/04 (SF) (especially at paragraph 14 per Lord Hope, and paragraph 61 per Lady Hale). In our judgment this is and remains a principle of general application to all proceedings in such tribunals.”
“In broad terms this meant that Tribunal Judge McEldowney was standing in the shoes of the decision maker as at that date…”
“(8) In deciding an appeal under this section, the First-tier Tribunal– (a) need not consider any issue that is not raised by the appeal;…”
“An obligation on a tribunal to pursue a point of law not raised by the party whom the point favours is a very unusual feature of an adversarial system, which is what the immigration appeal system is.”
“Relatively unusually for an English judge, an immigration judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases.”
“Where the Appellant is unrepresented the Tribunal panel will take on a more inquisitorial role and will ask witnesses questions which an unrepresented Appellant may not think to ask.”
“(4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective. (5) At any hearing where the court is taking evidence this may include— (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and (b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”
“Where the court is to be asked to disbelieve a witness, the witness should be cross-examined; and failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence.”
“Failure to cross-examine, however, will not always amount to an acceptance of the witness's testimony, e.g. if the witness has had notice to the contrary beforehand, or the story is itself of an incredible or romancing character.”
“HMRC caseworkers requested meeting(s) with relevant people at the BBC (primarily the programme executives or editors who engaged and worked with the presenters under review) in order to establish the nature of the services those whose PSCs were under investigation had provided to the BBC, the manner in which those services were provided and the details of the contracting process applied to the services. The BBC sought to ensure that the right people, at all levels, were made available to HMRC to assist them in establishing the factual situation.”
“It is important to remember that this will be your witness statement, and when you are called to give oral evidence in the Tax Tribunal, you will be asked to confirm under oath, to the best of your belief, of the accuracy of your witness statement.”
“Please find attached draft copies of your witness statements. As previously stated, although these have been drafted by us based on the information provided by you both earlier this month, these are your witness statements. Therefore, you need to ensure that everything in the witness statements is true and correct and if you are asked to appear at the Tribunal, you are happy to give evidence based on the information contained in the witness statement and be cross examined on the evidence too. If you have any concerns or are unsure about any of the information, please do not hesitate to let me know.”
“I understand that this will be the basis of the witness statement I am able to sign. Could you please let me know how you want to deal with the inserts before I sign and submit anything?”
“I would just like to take this opportunity to remind you that this is your witness evidence, based on your knowledge and you should be happy with its contents. Furthermore, if you are asked to provide oral evidence, Paya Limited’s Counsel can ask you questions regarding the information contained in your witness evidence and the surrounding circumstances. Therefore, it would be advisable to complete the witness statement with as much detail as possible to avoid any unexpected questions and answers.”
“The BBC continues to be willing to participate in the proceedings, provided it can do so on an impartial basis, and in a way which appropriately protects its own interests and those of its staff and on-air talent.”
“I am writing this letter under separate cover as this letter concerns that identity of one of the witnesses with whom HMRC has been in discussion and the state of preparation of HMRC’s proposed evidence. These matters are of course subject to legal professional privilege and must not be disclosed to the Appellants. Please confirm that to date neither Freshfields nor the BBC have revealed to the Appellants or their advisers the identity of any persons with whom HMRC have been in discussion as a potential witness, or as to the state of preparation of that witness evidence… HMRC formally seeks your permission to finalise and serve the witness evidence of Mary Hockaday on behalf of the BBC. As you will be aware, it was the BBC who proposed Ms Hockaday as an appropriate witness in September 2014. As you will also be aware, her statement is at the stage of a very advanced draft, with amendments having been made by both Ms Hockaday and the BBC legal team.”
“We confirm as requested that neither Freshfields nor the BBC has shared copies of any of the statements prepared by HMRC for BBC witnesses with the Appellants or their advisers…we were surprised by the implication in your letter that witness lists have not been exchanged, and that the presenters are unaware of which witnesses HMRC intends to call against them or which issues those witnesses will be addressing…the BBC does not consent to HMRC finalising or serving Ms Hockaday’s witness statement on27 January 2016 . Furthermore, we would kindly ask that you contact Ms Hockaday via the BBC’s legal team going forward. The same applies to David Smith. He is no longer employed by the BBC but is giving his evidence in the capacity as a former BBC employee, and so the BBC is treating him in the same way as its current employees. Mr Smith has confirmed that he does not consent to his witness statement being served on27 January 2016 .”
“We did not consider that it was necessary to request directions from the Tribunal to this effect, in circumstances where we had reasonably expected that the BBC, although not a party to the proceedings, might have regarded itself as bound to comply with the overriding objective. It appears, regrettably, that we were mistaken about this.”
“[HMRC] are very surprised and, indeed, deeply disappointed to note that the identities of HMRC’s proposed witnesses, as well as the state of preparation of their witness statements and significant details about the content of those statements, have been disclosed without HMRC’s consent to both the Tribunal and the Appellants. This is the clearest and most flagrant possible breach of HMRC’s legal professional privilege in respect of its unserved/draft witness statements.”
“HMRC have indicated to the BBC that there are around 100 additional cases under consideration involving current or former BBC presenters. The BBC also understands that HMRC has initiated or indicated their intention to initiate IR35 proceedings in relation to presenters who are engaged by other broadcasting organisations…The appeals are therefore extremely important not only to the individuals in question but also to the BBC and to the broadcasting industry as a whole. The appeals are likely to be the first cases to test the freelance model in the broadcasting industry against the IR35 legislation.”
“the BBC has learned that HMRC is staying other appeals behind these ones, thereby giving the impression that these proceedings will effectively be treated as test cases (because they will provide an informal precedent by reference to which the later cases will be adjudicated or settled).”
“the BBC has learnt that HMRC has opened enquires into more than 100 cases involving current or former BBC presenters. Accordingly, it has become clear to the BBC that notwithstanding that there are no ‘lead case’ directions under r.18 of the Tribunal [Rules], these…appeals are intended as de facto test cases in relation to a very significant number of BBC news presenters.”
“Although not formally joined there are other disputes between the Respondents and a considerable number of journalists/presenters, the outcome of which may well be determined by these appeals.”
“We are not aware of any treatment by HMRC of the appeals as ‘ de facto test cases’ as you suggest…the number of other potential cases…[does] not appear to us to be relevant at all.”
“The inquiry which [the legislation] directs is in the first instance an essentially factual one. It involves identifying, first, what are the 'arrangements involving an intermediary' under which the services are performed, and, secondly, what are the 'circumstances' in the context of which the arrangements have been made and the services performed. The legal hypothesis which then has to be made is that the arrangements had taken the form of a contract between the worker and the client. To the extent that 'the arrangements' are in the particular case to be found only in contractual documentation, it may be true to say that the interpretation of that documentation is a question of law. Even in that case, however, the findings of the fact-finding tribunal will be determinative of the factual matrix in which the interpretative process has to take place, and influential to a greater or lesser degree in enabling the essential character of the arrangements to be identified. Where, on the other hand, the arrangements cannot be located solely in contractual documentation, their identification and characterisation is properly to be described as a matter of fact for the fact-finding tribunal.”
“when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account.”
“though a decision of a Court of higher or equal authority binds another Court as to propositions of law, it cannot bind them as to the findings in fact. No doubt if the facts of two cases are so similar as to be practically identical the second Court will hesitate long before it comes to a different conclusion. Nevertheless, the facts of two different cases cannot, ex natura rei , be actually identical, and it is never incumbent on a Court to import the finding of fact in one case into another.”
“There is, of course, ample high authority about the danger of elevating decisions on the facts in particular cases into principles of law.”
“As a public organisation and public service broadcaster, the BBC wishes to remain impartial…[and] the BBC is concerned to ensure that witness evidence from current and former BBC employees is fairly and impartially presented.”
“the BBC is mindful of the potential impact of the [Appellants’] appeals on its business and the industry as a whole, noting that there are up to 100 further cases under consideration involving current or former BBC presenters…given that (i) BBC presenters and employees are involved both as parties to the litigation and as witnesses; (ii) the appeals may carry consequences for other BBC presenters and (iii) the publicity which they are likely to attract, the BBC views itself as an interested third party.”
“HMRC’s investigations and these proceedings will inevitably be a stressful and disruptive process for those involved, whether as appellants or as witnesses. That being the case, HMRC also has a legitimate interest to ensure so far as practicable that the investigations and proceedings have minimal impact on the professional lives of its workers.”
“…the BBC has perhaps a selfish, but I would submit entirely legitimate, concern that a tribunal making findings in public litigation …gets it right when it comes down to the way that editorial guidelines are applied. It would be difficult and embarrassing, perhaps for all concerned if, due to a lack of complete evidence, the Tribunal formed a view, quite legitimately on the evidence before it, about the way that the BBC operated its editorial guidelines or other ways in which it operated which were at variance with the truth.”
“The BBC, as you have heard, have their own interests in this application, these proceedings. Those interests, as my learned friend Mr Furness has made clear, may or may not be aligned with the interests of the Appellants.”
“…my learned friend [Mr Furness] was candid enough to admit and reiterate the BBC's has its own interests. Yet what [the Tribunal is] being invited to bless is that a party with its own interests shall decide whom amongst its workers, to use a neutral term, it will call to lead evidence. So the BBC presents itself both as neutral but wants to play as if it were a party.”
“it is clear that the BBC is seeking to interfere in these appeals because it perceives the outcome of the appeals as impacting upon its own interests…The BBC’s proposed intervention is not therefore disinterested and through its witness evidence it will be seeking an outcome for the appeals that suits its needs, whatever they may be considered by the BBC to be.”
“We understood that those from whom witness statements had been sought had not been provided with the Statements of Case or any significant background at all as regards the subject matter of the cases, either legally or operationally. Accordingly, they were, in effect, providing statements in a vacuum, and solely in response to questions and propositions framed by HMRC, which (necessarily) was coming at the evidence from a particular perspective. In addition to not having sight of the Statements of Case, the witnesses and potential witnesses necessarily did not have an understanding of the IR35 legislation and its operation or the test set out in Ready Mixed Concrete [ Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance(1968) 2 QB 497 ]. In our view, and having familiarised ourselves with these matters, access to the Statements of Case, and at least a high-level understanding of the IR35 legislation and the test in Ready Mixed Concrete , would be crucial if witnesses were to be able to provide a complete picture to the FTT.”
“Witnesses have not been properly briefed on the law or the issues. The BBC understands that those from whom witness statements have been sought by HMRC have not been provided with the Statements of Case in the appeals or any significant background to HMRC’s investigations. Witnesses have also not been provided with an understanding of the IR35 legislation and its operation. Without that information, it is impossible for witnesses to know whether they are addressing all factual matters that might be relevant to the Tribunal’s consideration of the central legal issues.”
“It is suggested repeatedly in [Ms Henderson’s] Statement…that the BBC witnesses are required to have an intricate knowledge of how the IR35 legislation works. This is a fundamental and pervasive misconception on the part of the BBC. The role and function of the proposed BBC witnesses in respect of the IR35 reviews/appeals was simply to set out the facts within their knowledge that are relevant to the issues in the appeals, such as the presenter’s day-to-day working arrangements, the production of television and radio programmes, or the BBCs move to introduce employment contracts in 2012.”
“Evidence is currently being taken from individuals who are not best placed to present a comprehensive and accurate picture to the Tribunal. For instance, Mr David Jordan is best placed to give evidence concerning the BBC’s Editorial Guidelines as he is the Head of Editorial Policy. Yet evidence on the Guidelines is currently being given by others who are less well-placed to address the way in which the Guidelines are intended to operate.”
“An example of a failure to identify the most appropriate witness to address a particular issue relates to the operation of the BBC’s Editorial Guidelines. At the moment, this is addressed in Mary Hockaday’s witness statement. Mary Hockaday is not best placed to give this evidence because, although she (as a Head of the BBC Newsroom during the relevant period) would necessarily have borne in mind the Editorial Guidelines when undertaking her role, [she] would not have been involved in their formulation and application across the BBC. In our view, this topic would best be addressed by the Director of the Editorial Policy Department, which is responsible for the Editorial Guidelines.”
“The Appellants understand the BBC’s concerns (set out in the witness statement of Jennifer Henderson…) that the evidence-gathering process thus far engaged in by the Respondents has sought evidence from the wrong people and has been both incomplete and (inadvertently, no doubt) partial.”
“in all the time that HMRC has been carrying out its IR35 reviews, it has never directed the BBC as to which witnesses should be called by HMRC. HMRC may have suggested potential witnesses. in light of the BBC attendees at meetings that had taken place with the BBC generally and in relation to particular cases. However, HMRC were in the end reliant upon the BBC to put forward suitable individuals as potential witnesses. Further, HMRC were of course responsive if and when those witnesses personally identified that there were certain topics or issues that they did not feel able to deal with.”
“the identity of the [HMRC] witnesses [were] proposed by the BBC to HMRC, and with a view to the production of factually correct material that would assist the Tribunal, with the full involvement of the BBC's legal department.”
“In particular, we were worried that the statements provided an incomplete picture, to the extent that there was a real risk that they could inadvertently be misleading to the FTT in due course. For example, we were concerned that the BBC’s Editorial Guidelines were being presented in the witnesses statements in a way that did not fully explain their operation and role, but instead provided a narrative that aligned more closely with HMRC’s case theory.”
“I was particularly worried that the witness evidence did not seem to adequately draw out the distinctions between employees and freelancers in any great detail. For example, (i) freelancers could undertake work for third parties, whereas employees could not and (ii) employees cannot reasonably refuse to undertake particular assignments or postings, whereas freelancers are not bound by the same requirements.”
“The exercise of proofing in each case was carried out on behalf of HMRC by an experienced solicitor or barrister. It would be surprising if there were in fact any legitimate grounds for complaint about the way in which the exercise was undertaken. It is also notable that it has taken so many months for the BBC’s complaints about this process to emerge and that those complaints are lacking in factual accuracy.”
“would be giving evidence as quasi experts – speaking to matters (i.e. the BBC’s operational practices) that in all likelihood will be unfamiliar territory to the Tribunal hearing the substantive appeals.”
“This is an exceptional case: first of all, because the factual information which the Tribunal needs on issues like the way newsrooms operate and on questions such as how editorial guidelines operate is highly specialised. It’s clearly not expert evidence. It will be evidence of fact. But it’s evidence which is difficult for outsiders to access and to get an authoritative view, and it is something which the BBC's own senior staff are uniquely well placed to provide.”
“It is for the parties to adduce the evidence that they wish to adduce and it is not for a non-party…to decide who gives evidence and what evidence they shall give.”
“…what is needed are people able to speak to the specific circumstances of the particular appellants and the particular times. It may be in the BBC's interests, perfectly legitimately, to want the relevant people who give evidence to be very senior in order to give apparently authoritative evidence about how things are done or ought to be done. What matters however, in the context of these kinds of cases, is how things were done. Where Mr Peacock and I may differ is as to what actually happened, but it’s important to understand that the evidence needs to be specific about the particular cases.”
“witnesses are colloquially called the witness of X, but that is a useful label, but no more.”
“HMRC does not suggest…that any witnesses called by the appellants…would lack impartiality or objectivity because they were called by the appellants, any more than they would have done if they had been called by HMRC. The problem, if there is a problem, seems to be the BBC's perception that it's a bad idea for its witnesses to be seen to be lining up on one side or the other. But that has to be seen for what it is, a perception.”
“it does not appear that the implications of the issues in the case and how that might impact on the evidence were ever explained fully to the witnesses.”
“we were also concerned that the witnesses did not seem to have been informed of the implications of their participation, namely that they may have to attend a hearing and be subjected to cross-examination, the prospect of which most people would find stressful and testing.”
“organise and present BBC staff evidence which other parties also wanted to put in; so that there would be a process whereby the BBC would be a clearing house for all of that evidence.”
“I would like to begin, if I may, by stating or restating…the blindingly obvious: that these are the appeals of these Appellants. If there is tax to pay, we will have to foot that bill. Now in principle at least it is the Appellants who should be able to control their own destiny. It is not for another party, or indeed another non-party, to constrain or control the appeal that the Appellants want to run.”
“have faced these proceedings for between two and three years now. We are realistically almost no further forward. [The Appellants] are keen that these proceedings should be brought to a hearing before this Tribunal within a reasonable period.”
“it leaves the Tribunal holding written evidence that it has not heard given by a live witness, it has not had the benefit of that evidence being tested by way of cross-examination, and it is almost useless to the Tribunal because the tribunal is unsure as to the weight to be given to such evidence.”
“Mr Smith is a former employee, so he can anyway do what he likes. If he wishes to give his statement in the form he signed it or he wishes to give a different statement, or make an additional statement or whatever he wants to do, that's entirely up to him.”
“What a solicitor is not entitled to do, or indeed a party, is to order or instruct a witness or a potential witness not to attend an interview with the opposing solicitor or to tell him that he has no real choice in the matter, or to put pressure on him not to comply. Nor must he make it appear that the witness can only be interviewed if the solicitor or his principal consents. Mr Jacobs accepted in the course of argument that any form of, as he put it, ‘strong persuasion’ should be avoided, and in my judgment rightly so, for it is liable to be indistinguishable from improper pressure. Indeed, in determining whether or not there has been improper interference with a witness, the court will look at the reality of what has occurred.”