“(1) Relevant evidence should be admitted unless there are compelling reasons not to. The prejudice to each party of respectively admitting/not admitting the evidence should be weighed. ( Mobile Export365 v HMRC[2007] EWHC 2664 (Admin) , and Atlantic Electronic v HMRC[2013] EWCA Civ 651 ). (2) An expert’s evidence of opinion is admissible because it is the product of a special expertise which the tribunal does not possess, or even if it does, which is not its function to apply ( Hoyle v Rogers[2014] EWCA Civ 257 ). (3) Expert reports are not rendered inadmissible because they refer to legislation, matters of law or indeed the very issue before the court or tribunal. Tribunal panels (who are not lay finders of fact) can be credited with the ability to distinguish between inadmissible/admissible matters in a report and to know that they have to reach their own view on the legal question before them. ( JP Morgan Chase Bank v Springwell[2006] EWHC 2755 (Comm) , and Kennedy (Appellant) v Concordia (Services) LLP (Respondent)(Scotland)[2016] UKSC 6 ). (4) Even if reports contain inadmissible expert evidence of fact they can be admitted and should be admitted without requiring excision particularly if the admissible/inadmissible evidence of fact is intertwined ( Hoyle ).” 9. I now turn to the applications. Admission of expert evidence 10. For HMRC, Mr Boch contends that only an expert can meaningfully analyse the data provided by Mr Gill to explain why his trading fell short of a professional trader. He says that this would be extremely helpful to the Tribunal as an expert would be able to comment on whether the operations in which Mr Gill was involved, his approach to the transactions concerned and his “trading” strategy were of the same type and carried on in the same way as those which are characteristic of ordinary trading in the line of business in question (see IRC v Livingston and others (1926) 11 TC/536). Additionally, Mr Gill submits, the expert would also be able give an opinion on the explanation given by Mr Gill for the loss and whether the quantitative easing programme caused the markets to behave in unprecedented ways. 11. Although the issue is whether a person was trading is, as Oliver J recognised in Salt v Chamberlain (1979) 53 TC 143 at 154 a question of “fact and degree” or “overall impression”, Mr Boch submits that expert evidence should be admitted to assist the Tribunal in reaching its conclusions as it did in BNP Parisbas SA (London Branch v HMRC[2017] UKFTT 487 (TC) . 12. Mr Afzal, for Mr Gill, submits that expert evidence is unnecessary. He says that the Tribunal is quite capable of determining the issue of fact of whether Mr Gill was trading. It does not matter, he contends, if Mr Gill’s approach, strategy or organisation were different to others engaged in similar activities as this could not assist the Tribunal in reaching its determination on whether Mr Gill was trading and doing so commercially. He refers to the observation of Robert Walker J in a case concerning a person dealing in commodity futures and shares, Wannell v Rothwell (Inspector of Taxes)[1996] STC 450 at 460-461: “…out of numerous reported decisions on profitable transactions which have been held to be taxable as trading activities I was not shown any (with the possible exception of Graham v Green ( Inspector of Taxes )) in which a lack of commercial approach or organisation has enabled the taxpayer to escape liability as a trader. In Graham v Green ( Inspector of Taxes ) (the betting case) Rowlatt J did refer (see[1925] 2 KB 37 at 41–42, 9 TC 309 at 313–314) to the appellant's not being organised in the way in which a bookmaker was organised, but those remarks must be read in their context. In general a substantial degree of organisation (a very imprecise term, especially across the whole range of trading activities) is neither a necessary not a sufficient condition for carrying on a trade (for the first limb see the observations of Lord Radcliffe in Edwards ( Inspector of Taxes ) v Bairstow[1956] AC 14 at 37, 36 TC 207 at 230 and for the second those of Lord Wilberforce in Ransom ( Inspector of Taxes ) v Higgs[1974] STC 539 at 556,[1974] 1 WLR 1594 at 1613). So far as organisation is a matter of externals, it could hardly be suggested that the taxpayer in this case would have been more commercial (in the sense of more likely to make a profit) if he had installed a full screen service costing£15,000 a year, or rented an office, or engaged a salaried bookkeeper. For him to have acquired such an external organisation would, on the contrary, almost certainly have ensured that he made much bigger losses. As Pennycuick J pointed out in Emanuel (at 378–379), the trade of a dealer in quoted securities requires no organisation beyond a telephone and some basic bookkeeping (and, I would venture to add, some capital or credit).” 13. It is also apparent, from their respective submissions, that the parties dispute the extent to which expert evidence, if permitted, would assist the Tribunal. Mr Boch contends that it would be “very difficult” to understand the data provided by Mr Gill without the assistance of such evidence. However, I agree with Mr Afzal that, as the burden is on Mr Gill to establish he is trading and doing so commercially, any difficulty the Tribunal has in understanding the data he has provided will be to his detriment and will not assist him in meeting that burden. Also, contrary to Mr Boch’s submission, I do not consider that the absence of expert evidence will prevent HMRC from advancing a positive case. 14. Although I accept that a person can have expertise in relation to financial markets I agree with Mr Afzal that it would be unlikely that he could comment with authority on every possible strategy that a financial trader could adopt. Even if this were not the case, it does not necessarily follow that if an expert has not encountered the strategy utilised by Mr Gill it could not be trading or trading commercially. Additionally, neither party showed any enthusiasm to my suggestion of the joint appointment of a single expert, Mr Boch particularly so, emphasising the difficulties in finding someone who was acceptable to both parties and the preference of appointing an expert who understood HMRC’s approach although recognising that, as an independent expert, he would reach his own conclusions. 15. Having carefully considered the submissions, while recognising that expert evidence is potentially relevant, I have come to the conclusion that, on balance, given the inevitable delay and cost associated with the provision of such evidence particularly if it were necessary to instruct two (or more) experts, which, for the reasons above, may be of limited value and assistance to the Tribunal in any event, it would be disproportionate to direct that expert evidence be admitted. 16. I therefore refuse HMRC’s application to admit expert evidence. Disclosure of data 17. Mr Boch made it clear that this application was not dependent on the application for the admission of expert evidence as the disclosure of data in a format that would identify whether a “long” or “short” position was taken, the number of “winning” and “losing” trades, the magnitude of wins and losses and the amount of time trades were held would enable a more meaningful analysis by HMRC and consequently assist the Tribunal. 18. Although Mr Boch suggested that such information would be “relatively straight-forward” for Mr Gill’s broker to provide, an email, dated19 July 2017 , from Mr Gill’s broker to him explains: “I have read the application from HMRC sent to your lawyers on11 July 2017 . I have spoken to my IT team in regard to HMRC’s request. Unfortunately we are not able to generate a report such as the one requested. The data requested was for trades executed on our previous system which was switched off in July of 2014”