Pacific Computers Limited v Revenue & Customs (VALUE ADDED TAX - preliminary issue - application for Tribunal to allow appeal summarily) [2021] UKFTT 88 (TC)

FTT-Tax
Pacific Computers Limited v Revenue & Customs (VALUE ADDED TAX - preliminary issue - application for Tribunal to allow appeal summarily)
[2021] UKFTT 88 (TC) · 2021-02-23
[28]28 “Moreover, the Court finds that there were periods of inactivity for which no satisfactory explanation has been given by the Government. The Court is particularly struck by the fact that the first appeal was before the Inner House from 22 September 1998 until 15 March 2001 and there was little or no activity between late 1998 and autumn 1999. It may well have been that, as the Government submitted, the parties were involved in other proceedings and settlement discussions. However, the Court finds that these considerations were not sufficient to absolve the Inner House of its own obligation to take an active role in the management of proceedings and to make enquiries of the parties to ascertain their position in respect of the appeal. As the Court has frequently stated, the State remains responsible for the efficiency of its system; the manner in which it provides for mechanisms to comply with the reasonable time requirement - whether by automatic time-limits and directions or some other method - is for it to decide. If a State allows proceedings to continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay ( Bhandari v. the United Kingdom , no. 42341/04, § 22, 2 October 2007, together with further references therein)... ” 42. The ECHR concluded thus in Beggs :
“273. However, given the periods of inactivity identified above and the failure of the judicial authorities during these periods to take steps to progress matters of their own motion, the Court concludes that there has been a violation of Article 6 § 1 in the present case.” 43. A party does not have to raise an allegation of unreasonable delay at the first possible opportunity or, indeed, before the end of the initial proceedings - the CJEU said this Groupe Gascogne at [70]: “Althou gh a party must be able to raise a breach of procedure where it considers that a breach of the rules applicable is established, it cannot be required to do so at a stage where the full effects of that breach are not yet known. As regards, in particular, a failure to adjudicate within a reasonable time, an appellant which considers that such a failure prejudices its interests is not required to assert that prejudice immediately. Where appropriate, it may wait until the end of proceedings in order to ascertain the total duration of the prejudice and therefore to have all the information necessary to identify that which it has, in its view, sustained.”
Background facts (in addition to those in the Introduction) 44. A chronology of the appeal is set out in the Appendix. In summary, the “history” of the proceedings falls into three main periods: (1) From the filing of the notice of appeal to the holding of the first FTT hearing (February 2008 to January 2014): a period of six years (2) From the end of that hearing to the time at which the Court of Appeal refused permission to appeal the decision of the Upper Tribunal: February 2014 to 1 April 2017: just over three years (3) From the Court of Appeal’s refusing permission to appeal to 22 February 2021, the date on which the substantive rehearing in the FTT was due to begin: nearly four years. 45. This appeal is classified as “complex” and involves a large amount of documentary and witness evidence; the initial FTT hearing was presented with 32 volumes of documents; heard oral evidence from nine witnesses; and was heard over12 hearing days. The re-hearing in the FTT is expected to last three weeks. 46. As well as the tax at stake, the ongoing proceedings have also affected PCL’s (1) reputation and ability to attract high calibre staff - since the case concerns whether PCL knew, or should have known, that transactions it took part in were connected with the fraudulent evasion of VAT; and (2) ability to obtain credit (PCL’s account make no provision for losing the appeal). These may also have had consequential effects on turnover and profitability. PCL’s submissions on unreasonable delays 47. Mr Webster emphasised the overall length of the proceedings and cautioned against “atomising” the overall period. He also submitted that, as time went on, the duty of the courts to act to speed up matters became more pronounced, and so “failures to act” or “periods of inactivity” at later stages of the proceedings are more likely to comprise unreasonable delay, than their equivalent at earlier stages. 48. Mr Webster accepted that the first FTT hearing took place within a reasonable time (although at the “outer limits”). He also accepted that any delay after February 2021 was not unreasonable, as the February 2021 hearing had been postponed (at PCL’s request) for good reasons. PCL’s allegations of unreasonable delay were thus mainly focused on the second and third periods of the proceedings, which, it said, should have been conducted with greater speed, given (i) that it had (already) taken six years to get to the first FTT hearing, and (ii) the possibility (followed by the actuality) of the Upper Tribunal setting aside the FTT’s decision and directing a re-hearing. In particular PCL highlighted the following delays: (1) In the second period: (a) the two month delay in the FTT receiving the parties’ written closing submissions caused by HMRC submitting further written submissions after PCL’s (see Appendix for more details); (b) the eight months between the FTT receiving the parties’ written closing submissions and releasing its decision: this, PCL submitted, was an unreasonable delay of about four months; (c) the six months between PCL asking the Court of Appeal for permission to appeal and that court deciding to refuse permission: PCL submitted that this was an unreasonable delay of about three months. (2) In the third period: (a) the seven months between Court of Appeal’s refusing permission to appeal and the holding of a case management hearing on 31 October 2017 - PCL said this should have happened more quickly, given the circumstances; (b) the 18 months between the Court of Appeal’s refusal of permission to appeal and the FTT sending notification of the date of the re-hearing - PCL said this should have happened more quickly, given the circumstances; (c) the delay caused by the FTT on 4 June 2019 cancelling the hearing due to take place in December 2019. The hearing was subsequently relisted to begin on 5 October 2020, a delay of 10 months. PCL submitted that this delay was wholly unreasonable: the FTT told the parties on 4 June 2019 it had been unable to secure a judge, but this was eight months after the listing was made and just under six months before the hearing date. PCL submitted that the December 2019 listing should have been preserved by the FTT e.g. cancelling hearings (of more recent appeals) to free up a judge. It said this was a failure of state to provide adequate resources; (d) the 4½ months (mid June to 1 November 2019) it took for FTT to notify the parties of the 5 October 2020 new hearing date - PCL said that, due to this delay, its counsel did not keep the dates starting 5 October 2020 free, which then caused the hearing to be delayed from October 2020 to February 2021 - a delay of four months. Discussion 49. As each case turns on its particular facts, I see little value in comparing the time taken in these proceedings to the time taken in various decided cases. Rather, adopting Lord Bingham’s approach, which I find consistent with the approach of the ECHR in Beggs (see at [241]), I find it is necessary, given the real concern arising from the long period (13 years) that has elapsed since this appeal was notified to the Tribunal, to look at the detail of the delays on the part of the tribunals and courts alleged by PCL and decide whether those delays were reasonable or not. 50. Although PCL’s allegations of unreasonable delays focus on the second and third periods of the proceedings, I note that in the first period (1) three case management hearings were held, in June 2009, June 2010 and May 2012, the first two convened to determine applications by PCL that were resisted by HMRC (and which the Tribunal, following the hearings, granted, at least in part); the third to progress matters to hearing. The scheduling of the case management hearings itself involved delays of a few months, no doubt to co-ordinate the diaries of the parties and their legal representatives; there were further delays of a few months when HMRC asked for hearings to be postponed; (2) the case management hearings were followed by the issuing of directions to progress the appeal, setting specific deadlines; (3) scheduling complications for a hearing of over two weeks were no doubt the reason for the gap of over a year between the listing of the first FTT hearing and its commencement; (4) PCL’s submissions did not allege significant periods of inactivity by the Tribunal in the first period, nor is this suggested by the information in the Appendix. Rather, the impression given by this information is that of the Tribunal as “referee” engaged between well-represented parties in quite complex litigation, each robustly (and quite reasonably) defending its rights and advancing its interests. It seems to me the Tribunal was throughout playing the (sometimes difficult) role outlined in Beggs at [240], of balancing the need to ensure fairness as between the parties with the need to progress matters to hearing within a reasonable time. 51. Turning now to PCL’s allegations of unreasonable delay during the second and third periods, I would observe as follows: (1) Much of the second period, and all of the third period, came about because of the judicial process of appeal and remittal for a fresh hearing. It is clear that, in principle, delays caused by these important processes are not unreasonable - indeed, the parties have not submitted otherwise here; and Beggs (at [254]) supports this proposition. (2) The two month delay caused by HMRC’s additional written submissions (March to May 2015) cannot be laid at the door of the Tribunal: it responded promptly and robustly to the situation, issuing directions and setting reasonable deadlines. (3) The eight months taken by the FTT in producing its decision does not in my view indicate unreasonable delay: a great deal of evidence, cross examination, and legal argument had to be dealt with in the decision. There is no indication of inactivity on the Tribunal’s part during this time. (4) The six months taken by the Court of Appeal to decide the application for permission to appeal does not strike me as unreasonable delay, in context: whilst this appeal was dealing with events that, at that stage, had occurred ten years earlier, it was in essence a financial case involving a corporate entity, as opposed to a case involving very sensitive matters like individual liberty, children or vulnerable parties. It would not have been reasonable for this case to “jump the queue” as respects granting of permission to appeal by the Court of Appeal. (5) I infer from the circumstances, and the history of the case, that most of the seven months between the Court of Appeal’s refusal of permission, and the holding of the case management hearing in the FTT (31 October 2017), was attributable to diary management of the parties and their legal representatives; I find it unlikely, on the evidence before me, that this delay represented inactivity on the Tribunal’s part. I accept that, given that the proceedings at this stage had been going on for over nine years, the Tribunal might have chosen to be “tougher” on the parties, insisting on convening the hearing on an earlier date (on which one or other party, or their legal representatives, had pre-existing commitments). This would have been the kind of “difficult” decision alluded to in Beggs at [240]. However, in all the circumstances, I do not think it was unreasonable of the Tribunal to prioritise fairness, the right of parties to participate in proceedings, and the right to be represented by the counsel of their choice. Hence I do not find that this was an unreasonable delay. (6) The reasons for the 18 months between the Court of Appeal’s refusing permission to appeal, and the Tribunal’s notification of dates for the re-hearing, can be found in a combination of the point immediately above, and the directions made following the case management hearing on 31 October 2017. Those directions (summarised in the appendix), in my view, bear the hallmarks of active case management of the kind urged upon the courts by the case law authorities. I have considered whether the Tribunal was too generous in the time allotted for the various actions directed, given how long proceedings had already been going on by that time; however, my thinking on this is essentially the same as in the point immediately above, and so I do not think that these directions, and their enforcement by the Tribunal, can be taken as indications of unreasonable delay on the Tribunal’s part. (7) The ten months’ delay caused by the Tribunal’s abrupt postponement, in early June 2019, of the hearing listed for December 2019, was the fault of the Tribunal, in that a judge could not be secured for the hearing as listed. I infer from the circumstances that the judge originally “booked” for the hearing became unavailable. From the information before me, it appears that this was a one-off unfortunate turn of events rather than evidence of a systemic shortage of staff to administer the Tribunal reasonably. PCL argues that the ten-month delay could, nevertheless, have been avoided by the Tribunal cancelling other hearings and so releasing a substitute judge for PCL’s hearing: this would have been justified, PCL says, because by this point the proceedings had been ongoing for more than 11 years. I agree that the Tribunal dealt with the situation via its normal procedures rather than “pulling out the stops” to save the hearing dates in the way proposed by PCL (indeed, another “extraordinary” approach the Tribunal could have taken was to identify the earliest date at which a substitute judge was available and list the hearing for then i.e. without accommodating the parties’ preferences as to dates). The decision by the Tribunal not to deploy “extraordinary” measures may be questioned, in retrospect - however, I do not think it was outside the realm of reasonable responses the Tribunal could have taken in the situation, and certainly does not indicate “inactivity” on the Tribunal’s part. Had there been evidence of this incident being a systemic, rather than one-off, problem in the Tribunal’s administration, I may have taken the view that the delay caused by deploying the Tribunal’s “ordinary” procedures was unreasonable. But in the circumstances before me, I do not consider that the 10 months’ delay caused by this incident cross the line into the realms of “unreasonable” delay. (8) The Tribunal delayed the start of the rescheduled hearing by four months - from November 2020 to February 2021 - so as to accommodate the availability of PCL’s counsel (the November 2020 start date had been fixed based on dates supplied by both parties; but PCL’s counsel subsequently became unavailable - which PCL said was justified by the 4½ months it took the Tribunal to notify the parties of the hearing dates). I have again considered whether the Tribunal should have been “tougher” on the parties, given that over 11 years had now passed since the notification of the appeal - and insisted on the November 2019 start date as listed; and again, as above, I have concluded that the delay in accommodating PCL’s counsel’s availability was not unreasonable, given the need to balance the “fairness” and “reasonable” time aspects of PCL’s Article 47 rights ( Beggs at [240]). 52. Stepping back from the details, I have considered the question put by Mr Webster: how can it be that the hearing of proceedings started more than 13 years ago, relating to events of nearly 15 years ago, can be said to have been held within a reasonable time? 53. Although Mr Webster put the question rhetorically, in my view there is an answer - and one which goes to the reason this right is couched in terms of a “reasonable” time, rather than a fixed period: it all depends on the circumstances. In overview, the key circumstances here that explain why the very considerable time taken is not unreasonable are: (1) the process of appeal and re-hearing - whilst unfortunate from the perspective of parties awaiting final resolution, this is nevertheless fundamental to doing justice; (2) the time taken has not, on the evidence before me, been attributable to significant periods of inactivity on the part of the Tribunal or other courts involved - rather, the recurring reasons for time being taken are (a) judicial processes to achieve fairness between the parties; and (b) the Tribunal accommodating, in the interests of fairness and the due participation of the parties in the proceedings, the (often busy) diaries of legally represented parties in arranging lengthy hearings. It is in this context that I have found that the one event in the history of these proceedings that stands out as being the fault of the Tribunal - the Tribunal’s abrupt cancellation of the hearing listed for December 2019, on 4 June 2019 - whilst very unfortunate, and the cause of 10 months’ delay, did not cause the time taken in these proceedings to become unreasonable. Conclusion 54. As will be seen from the foregoing, I have concluded both that (1) PCL’s Article 47 right to a hearing within a reasonable time has not been breached; and (2) even if there had been such a breach, the remedy would not be for the Tribunal to allow the appeal summarily. 55. Either of these conclusions would be sufficient to refuse PCL’s application that its appeal be allowed summarily. 56. The application is accordingly refused. Progressing the appeal to hearing 57. The parties have informed the Tribunal that the earliest dates that both parties and their preferred legal representatives are available for a three-week re-hearing over consecutive dates is 3 October 2022 to 30 November 2022. As this is a further delay of over 18 months, the Tribunal will wish to be assured that every reasonable effort is being made to consider any alternative arrangements that would allow the hearing to take place sooner. In the meantime, the parties should keep these dates free. The Tribunal intends to issue directions to this effect shortly. Right to apply for permission to appeal 58. This document contains full findings of fact and reasons for the preliminary decision. Any party dissatisfied with this preliminary 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. However, either party may apply for the 56 days to run instead from the date of the decision that disposes of all issues in the proceedings, but such an application should be made as soon as possible. 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. ZACHARY CITRON TRIBUNAL JUDGE RELEASE DATE: 30 MARCH 2021 Appendix: Chronology October 2006 PCL’s 09/06 VAT return received by HMRC February 2008 HMRC issued decision denying PCL the right to deduct input tax PCL appealed April 2008 HMRC served statement of case August 2008 HMRC served a witness statement October 2008 PCL requested that HMRC provide certain documentation November 2008 PCL applied for specific disclosure regarding that documentation HMRC objected to PCL’s application but provided some of the documentation PCL asked Tribunal to list the matter for a case management hearing December 2008/ January 2009 HMRC provided more of the documentation but not all of it February 2009 Case management hearing moved (by consent) to June 2009, at HMRCs request June 2009 Case management hearing held. Directions made: · 14 days after date of directions, HMRC to provide final version of the “means of knowledge” submission · By 23 July 2009, PCL to serve witness statements · By 2 September 2009, HMRC to serve supplementary witness statements with exhibits · By 1 October 2009, PCL to serve its supplementary witness statements with exhibits · No further evidence to be adduced without leave of the Tribunal · Pre-trial review to be listed on the first available date after 1 October 2009 July 2009 HMRC served “means of knowledge” submission PCL applied for extension of time to file its evidence, to 12 August 2009. HMRC did not object. August 2009 PCL applied for further extension of time, until 30 September 2009, to file a witness statement. HMRC did not object. PCL sent draft application for further & better particulars to HMRC. HMRC requested more time to reply to the request. September 2009 PCL agreed HMRC’s request for more time and requested an extension of time to serve its witness evidence October 2009 HMRC provided responses to some (but not all) of PCL’s requests for further and better particulars HMRC served a further witness statement November 2009 PCL applied to Tribunal to direct further and better particulars and extension of time to serve PCL’s witness statements December 2009 HMRC objected to PCL’s application and provided further response to PCL January 2010 Case management hearing re: PCL’s application listed but vacated due to unavailability of HMRC’s counsel June 2010 Case management hearing held. Directions made: · HMRC to amend statement of case to include full basic particulars; and serve within six weeks · Time for service of PCL’s witness statements extended to six weeks from receipt of amended statement of case · PCL opted into the costs regime August 2010 HMRC served amended statement of case September 2010 PCL applied for extension of time to serve three witness statements November 2010 HMRC served a witness statement January 2011 PCL served witness evidence June 2011 HMRC served further witness evidence October 2011 PCL served second set of witness evidence November 2011 Case management hearing listed for December 2011 vacated at HMRC’s request, despite PCL’s objection January 2012 HMRC served second witness statement of one of its witnesses with application that it be relied upon PCL served letter conceding the existence of tax losses May 2012 Case management hearing at which HMRC indicated its intention to apply to adduce further evidence from three witnesses. Tribunal then issued directions: · HMRC given six weeks to make application to serve additional evidence from three witnesses (and put on notice that extension of time for making such application unlikely to be given) · Mechanism put in place for scheduling case management hearing if PCL objected to such application · Timetable set for PCL notifying issues in dispute · Case management directions made for listing hearing, bundles, skeleton arguments June 2012 HMRC served further amended statement of case HMRC applied to rely on further evidence and witness statements December 2012 Tribunal listed hearing for 20 January to 4 February 2014 July 2013 PCL applied to vacate the hearing due to pressure of work September 2013 Tribunal refused PCL’s application November, December 2013 HMRC applied to rely upon further evidence January 2014 PCL served its third set of witness evidence 20 January - 4 February 2014 FTT hearing. PCL’s witnesses gave evidence as follows: · Andy Hall - 2½ days · Marc Roach - 2 days · Richard Donaldson - ½ day · Leighton Birtchnell - 1 hour. March 2014 HMRC served written closing submissions PCL served written closing submissions April 2014 PCL filed notice of objection to further submissions made by HMRC (after PCL’s written closing submissions) May 2014 Tribunal issued directions that: · HMRC’s further submissions be admitted in the form that they were first sent to the Tribunal but with no amendments · PCL given leave to submit such further representations, if any, in response to HMRC’s submissions within 28 days · no further submissions or applications to be made without prior written permission of the Tribunal · Tribunal reserved the issue of the costs occasioned by these further submissions 20 January 2015 Tribunal released substantive decision allowing the appeal March 2015 HMRC applied for permission to appeal April 2015 FTT refused permission to appeal May 2015 HMRC applied to the Upper Tribunal for permission to appeal June 2015 Upper Tribunal granted permission to appeal 21-22 June 2016 Upper Tribunal hearing 28 July 2016 Upper Tribunal released decision allowing HMRC’s appeal, remitting the case to the First-tier Tribunal with the direction that it be re-heard in its entirety by a fresh panel 24 October 2016 PCL applied to Court of Appeal for permission to appeal 1 April 2017 Court of Appeal refused permission to appeal 31 October 2017 Case management hearing in FTT 14 November 2017 Tribunal directed that: · Within two weeks, parties to agree two days in May 2018 to be available for a case management hearing (if necessary) · Parties permitted to rely in the re-hearing on witness statements that were relied upon in the first FTT hearing · PCL to use reasonable endeavours to secure, from solicitors that acted for it on the original appeal to this Tribunal, copies of the witness statements and exhibits that HMRC relied on in the first hearing. · No later than 1 December 2017, PCL to explain: o which, if any, witness statements and exhibits on which HMRC relied in the first hearing it has not been able to obtain from its former solicitors; o an outline of the steps it took to secure those witness statements and exhibits; and o of which, if any, witness statements and exhibits on which HMRC relied in the first hearing PCL requires further copies. · No later than 15 December 2017, HMRC: o to notify which witness statements relied on in the first hearing they wish to reply upon in the re-hearing; o to serve copies of any witness statements relied on in the first hearing of which PCL has notified HMRC that it requires further copies; and o to serve any updating witness statements on which they wish to rely in the re-hearing. · No later than 2 February 2018, PCL to notify: o which of HMRC's witnesses it requires to be made available for cross-examination at the re-hearing (being those witnesses who were cross-examined at the first hearing). Notice to be accompanied by a high-level summary explanation of why any witness’ evidence is disputed when it was accepted by PCL at the first hearing. · No later than 16 February 2018, HMRC to advise if any of the witnesses who are required by PCL for cross-examination are unavailable (given the lapse of time since the first hearing) and whose witness statements will therefore need to be withdrawn and replaced. · No later than 30 March 2018, HMRC to serve any replacement witness statements. Special arrangements made in case necessary for HMRC to withdraw and replace the witness statement of the expert witness · No later than 13 April 2018, the parties to provide a statement (agreed between themselves if possible) as to whether a case management hearing necessary. · No later than 11 May 2018, PCL: o to notify which witness statements relied on in the first hearing PCL wishes to rely upon in the re-hearing; o to serve any additional or updating witness statements on which PCL wishes to rely in the re-hearing. · No later than 8 June 2018, HMRC to serve any witness statements in reply. · The parties shall use reasonable endeavours to agree between themselves (i) a time estimate for the hearing supported by a hearing timetable and (ii) dates in the months of September 2018 to March 2019 when they would both be available for a hearing of this appeal. · Not later than 24 June 2018, both parties shall send a statement detailing: o any agreement that the parties have reached per the above direction; o other standard listing particulars o (if the parties have not been able to reach agreement pursuant to the above direction) their separate views on the anticipated duration of the hearing (together with a draft trial timetable); o (in case the Tribunal cannot list the appeal on dates the parties have agreed between themselves) dates to avoid for a hearing in the months of September 2018 to March 2019. November 2017 PCL applied to amend above direction so as to provide for a case management hearing in September 2018 December 2017 HMRC objected to PCL’s application Tribunal refused PCL’s application, stating that it would be in touch to list a case management hearing in May 2018 May 2018 PCL served updating statements July 2018 Tribunal wrote to the parties apologising for not arranging a case management hearing but stating that it did not appear that such hearing was necessary 9 August 2018 Parties sent agreed listing statement to Tribunal, stating (inter alia) that · the parties had agreed a hearing window of 2-20 December 2019 (later than the listing window of September 2018 to March 2019 directed by the Tribunal - but PCL was not available for any earlier consecutive 15-day period) · the parties would keep this window free pending listing of the appeal (and providing dates to avoid up to end of December 2019, in case the Tribunal was unable to list the hearing on the requested dates) 5 October 2018 Tribunal listed the hearing on the December 2019 dates requested by the parties 4 June 2019 Tribunal cancelled the December 2019 hearing as no judge was available to attend. The parties were asked to provide alternative availability dates. 14 June 2019 PCL wrote to Tribunal confirming 5-26 October 2019 as dates both parties were available for a hearing 1 November 2019 Tribunal listed the hearing on dates requested by parties (5-26 October 2019) 21 November 2019 PCL applied to vacate the hearing due to non-availability of counsel 3 December 2019 HMRC objected to PCL’s application 9 December 2019 Tribunal wrote to parties, saying (inter alia): “It is regrettable that having been provided with mutually convenient hearing dates on 14 June 2019, the Tribunal was not able to notify the parties that the appeal had been listed on those dates until 1 November 2019. Given the history of the appeal the Judge [Cannan] is surprised that the appellant's representative did not keep the October dates available, and if necessary seek an update from the Tribunal as to when the listing might be confirmed.” 12 December 2019 PCL responded to Tribunal, saying (inter alia): “We do wish, however, to place on record our response to the comments of Judge Cannan as you report them to have been. We do so, of course, with the utmost respect, but we cannot regard it as realistic or fair for there to be any criticism of solicitors or counsel in the circumstances. The case itself concerns facts arising in the first half of the last decade. The delay between the decision of the Upper Tribunal and the listing of the rehearing of the case for December 2019, may be fairly characterised as, at the least, regrettable. The case was removed from the list for December 2019 without any consultation and that decision was communicated to us by means of a letter with tick boxes stating that there was no judge available. Why this should have been the case when the trial had been fixed many months before was something which was not explained. The decision to take the trial out was inappropriate not only because of the already egregious delay entailed, but because counsel’s diaries had been managed on the basis of the listing. The failure to provide an explanation for the lack of a judge was, yet again, regrettable. We provided alternative dates in June. Whilst an apology for yet further unexplained delay in providing any listing dates for a further four and a half months is welcome, yet again no explanation has been proffered for this unacceptable delay. The listing notified to us was for October 2020 the suggestion that professionals should continue to keep diaries open for the listing of a case when there is no possibility of knowing when that listing might be is, with respect, unrealistic. It is similarly unrealistic to expect counsel’s clerks to be constantly on the phone to the tribunal clearing the date of every other case in which they were instructed. The difficulties arise because of the delay in responding to the available dates and in organising a hearing within a reasonable time. If the Tribunal does not have sufficient judges or staff to enable that to be achieved, the consequences for the administration of justice, and the achievement of trials within a reasonable time, are dire. Should the Tribunal be minded to refuse the appellant’s application we would respectfully request that the matter be listed for a short hearing.” 6 January 2020 Tribunal informed the parties that Judge Cannan considered it to be in the interests of justice to postpone the hearing and relisted the matter for 22 February 2021 to 12 March 2021 18 September 2020 PCL wrote to the Tribunal asking it to confirm as a matter of urgency that the hearing listed between 22 February 2021 and 12 March 2021 would be going ahead on the dates currently listed in person 22 September 2020 Tribunal wrote saying that due to the latest coronavirus restrictions it was unable to confirm whether the hearing would proceed on the dates listed and in person. The Tribunal directed PCL to re-consider whether the matter was suitable to be heard remotely 12 October 2020 PCL confirmed that it remained firmly of the opinion that the matter was not suitable for determination remotely and asked the Tribunal to inform the parties as to what action it was taking to locate a court room large enough to hold an in-person hearing 9 November 2020 PCL applied for an order summarily allowing its appeal on the basis of delay 30 November 2020 HMRC objected to PCL’s application 17 November 2020 PCL wrote to the Tribunal asking it to say within 7 days whether it would be able to confirm that the hearing would proceed in person on the dates currently listed 11 December 2020 PCL requested substantive response to its outstanding correspondence 16 December 2020 PCL told the Tribunal that it now considered that there was insufficient time to properly prepare for the hearing and applied for it to be vacated and relisted between 1 September and 8 October 2021 17 December 2020 Tribunal sought submissions from parties regarding case management issues related to PCL’s application for order summarily allowing the appeal on the basis of delay 25 December 2020 Tribunal responded to PCL’s letters of 12 October, 17 November and 16 December 2020, giving interim response regarding face to face and video hearing arrangements, and seeking submissions and information from the parties 13 January 2021 Following responses by parties, Tribunal cancelled the hearing listed for 22 February 2021 and directed that PCL’s application for the appeal to be summarily allowed on the basis of delay was to be heard (by video) on 22–23 February 2021