ELBROOK (CASH AND CARRY) LIMITED v Revenue & Customs (Procedure – Application to bring forward date of hearing) [2021] UKFTT 442 (TC)
FTT-Tax
ELBROOK (CASH AND CARRY) LIMITED v Revenue & Customs (Procedure – Application to bring forward date of hearing)
[2021] UKFTT 442 (TC) · 2021-11-18
[9]“ The order was met with a wholly unsatisfactory response from the clerks to leading counsel for the claimants, who notified the court that the hearing that had been ordered could not be accommodated on that date, but the court would be notified of a date that could be accommodated by all counsel jointly, once their clerks had agreed this between themselves. This response was referred immediately to me, and appeared to be a clear case of the tail wagging the dog. It is notable that judicial availability, and the dates ordered …, were considered such a secondary consideration to counsels' diaries. ” He continued:[16]“ [16] Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach. If the court embarks upon a course of organising hearings around counsel, more and more time will creep into the timetable of the litigation as a direct result. This applies to all hearings, but particularly to trials of substantive issues. All the parties are to be treated fairly. If a request by the defendant for delay of two to three months into 2019 is agreed by the court at this stage, there will be the risk of at least the appearance of unfairness if similar requests by the claimants' counsel are not acceded to in the future. …[19][19] Counsel of high repute - which in this case they are - are extremely valuable in the marketplace and have many potential clients. They all work extremely hard and it is a function of the independent Bar that they will usually have multiple cases underway simultaneously. However, such counsel will, by definition, usually have a large number of hearings in their diaries. Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity. This difficulty becomes even more acute if hearings of four weeks and longer are required, which in this group litigation they will be. Whilst it may be regrettable that one party might be deprived of their counsel of choice because of listing, that is a not unusual situation. Where there is reasonable notice of a diary conflict, which there undoubtedly is in this instance, arrangements for a suitable replacement can invariably be made by the disappointed party, if a replacement is necessary.[20][20] The other consideration in terms of incremental delay to hearings is that this will lead to the litigation overall taking longer than it otherwise would. This will undoubtedly add to the costs. One of the favourable points from the earlier so-called Woolf Reforms identified by Jackson LJ in paragraph 1.1 of his Review of Civil Litigation Costs: Preliminary Report (May 2009) was “the case management function, which the court has assumed following the Woolf reforms, prevents cases from being parked indefinitely, whilst the parties or their lawyers attend to other matters” (emphasis added). His report was initiated due to the mounting concerns about the cost of civil justice. If delaying hearings will lead to higher costs - and it undoubtedly will - then delaying hearings must be avoided if at all possible. ” Discussion and Conclusion13. Mr Brown, for Elbrook, points to the overriding objective of the Tribunal Procedure Rules to deal with cases “fairly and justly” emphasising that this includes avoiding delay. He contends that justice delayed is justice denied and says, relying on Bates v Post Office Limited , that the date of the hearing should not be fixed “around the diaries of busy counsel”. He submits that a delay of over a year, particularly in relation to the WOWGR appeal and its effect on the ability of Elbrook to trade in duty suspended goods, because of the unavailability of HMRC’s preferred counsel is unfair and prejudicial to Elbrook .14. For HMRC, Mr Watkinson submits that the November 2022 hearing date should be kept as the alternative would be to make the parties and the Tribunal a hostage to fortune in that there were too many uncertainties were it to be vacated, eg witness and judicial availability potentially over a holiday period. He also submits that the alternative dates offered by Elbrook for a hearing were “largely illusory” and questioned what prejudice would be occasioned by a delay of four or five months from June/July 2022 to November 2022. Mr Watkinson confirmed that neither he nor Mr Joshua Carey (junior counsel also instructed by HMRC in this matter) were available for a 19 day hearing before November 2022 and that that date had been advanced not only the basis of their availability but that of witness. Additionally, he reminded me that HMRC were generally limited to instructing counsel on the Attorney-General’s panel of which there were a finite number whose availability, not only for a 19 day hearing but the necessary preparation time, was unknown.15. Having regard, as I must, to the overriding objective of the Tribunal Procedure Rules, Mr Brown is quite correct that dealing with a case “fairly and justly” includes the avoidance of delay. However, this is only “so far as compatible with proper consideration of the issues.” Dealing fairly and justly also includes dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.16. It must also be right, for the reasons outlined by Fraser J in Bates v Post Office Limited , that fixing hearings around the diaries of busy counsel, rather than their fixing their diaries around the case is fundamentally the wrong approach. However, the circumstances surrounding this application are quite different to those encountered by Fraser J who, as is clear from Bates v Post Office Limited at [3], was considering the position at an early stage in those proceedings whereas the present case is ready for its substantive hearing and that, other than for one interlocutory matter, Elbrook (Cash and Carry) Limited v HMRC [2017] UKFTT 143 (TC) , HMRC have instructed the same counsel throughout the proceedings.17. Although, at this stage, the Tribunal resources, judicial availability or the availability of alternative counsel and witness for an earlier hearing are not known it would appear very unlikely that these matters could be ascertained in time to re-list the hearing in February 2022. As to vacating the November 2022 hearing and re-listing it in either June/July 2022 or September/October 2022, I am, on balance, not convinced that there is anything to be gained by vacating a hearing for which the parties, their counsel and witnesses have been notified and are available and re-listing it a matter of only, at best, four months sooner especially given the potential to coincide with holidays that may have already been booked and paid for in the hope that by then the threat of coronavirus travel restrictions would have considerably eased.18. Additionally, while I accept that there is possible prejudice to Elbrook by a further delay in regard to the WOWGR Appeal I do not consider this to be sufficient a reason to vacate the November 2022 hearing and bring it forward by a matter of months, particularly as the WOWGR Appeal was listed for a hearing between 6 and 10 February 2017 but vacated on Elbrook’s application to be re-listed to be heard contemporaneously with the Kittel Appeal (see Elbrook (Cash and Carry) Limited v HMRC [2017] UKFTT 143 (TC) at [3] and [4]).19. Therefore, for the reasons above, I have come to the conclusion that application cannot succeed and the substantive hearing should not be vacated but proceed as listed to commence on 15 November 2022. Right to apply for permission to appeal 20. 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. JOHN BROOKS TRIBUNAL JUDGE Release date: 22 NOVEMEBR 2021