“such amounts payable to the Company on the occurrence of such events as specified in Schedule 1.”
“1.1 Subject to paragraphs 1.2 and 1.3, the Company shall pay to the Player a retainer per Contract Year (“Retainer”) of£75,000 . 1.2 If the player achieves a career aggregate of 5,000 Test runs of 5,000 One Day International (“ODI”) in the first Contract Year, the Retainer for Contract Years two and three shall be increased to£80,000 .”
“Our client is the sole director and shareholder of the company, which is a Sports Image Management company dealing with the sporting image rights of our client. The company provides the services of our client for personal appearances, expert commentary and other promotional services and seeks also to promote and protect the name and image of our client.”
“... there is no formal agreement in place between our client and the company with regard to the assignment of his image rights. ... The informal agreement between our client and his sports management agent is that our client pays 20% of all negotiated contracts and related incomes to his agent, such amounts being deducted from receipts before funds are credited to the company’s bank account. Our client’s agent is International Sports Management (ISM) Ltd, [...]”
“Firstly I think it is important to clarify that Mr Collingwood has assigned the right of publicity to PDC Rights Ltd. The right of publicity is the right of a person to control the commercial value and exploitation of his or her name, voice or likeness. Because right-of-publicity laws promote artistic and commercial pursuits, they are included among intellectual property law. These laws are usually reserved for celebrities and other public figures whose name and image are important to their career. By allowing celebrities the right to control the commercial use of their name, voice and image, right-of-publicity laws protect the commercial potential of sportspersons. The contracts referred to, [...] all related to publicity. Mr Collingwood has assigned his rights to income to PDC Rights Ltd. He, personally, has no legal right to benefit from such contracts. This right belongs to the company. Although these contracts are signed by Mr Collingwood and refer to Mr Collingwood personally he has effectively no personal entitlement to income from the contracts. The entitlement belongs to PDC Rights Ltd. I can see that HMRC are in possession of the Agreement for the Assignment of Intellectual Property rights which is between Mr Collingwood and PDC Rights Ltd.”
“5 Charge to tax on trade profits Income tax is charged on the profits of a trade, profession or vocation.”
“8 Person liable The person liable for any tax charged under this Chapter is the person receiving or entitled to the profits.”
“7 Income charged (1) Tax is charged under this Chapter on the full amount of the profits of the tax year [ (including amounts treated as profits of the tax year under section 23E(1))].”
“687 Charge to tax on income not otherwise charged (1) Income tax is charged under this Chapter on income from any source that is not charged to income tax under or as a result of any other provision of this Act or any other Act. (2) Subsection (1) does not apply to annual payments [ or to income falling within Chapter 2A of Part 4]. (3) Subsection (1) does not apply to income that would be charged to income tax under or as a result of another provision but for an exemption. (4) The definition of “income” in section 878(1) does not apply for the purposes of this section. (5) For exemptions from the charge under this Chapter, see in particular– section 768 (commercial occupation of woodlands), and section 779 (gains on commodity and financial futures).” section 768 (commercial occupation of woodlands), and section 779 (gains on commodity and financial futures).”
“689 Person liable The person liable for any tax charged under this Chapter is the person receiving or entitled to the income.”
“28A Completion of enquiry into a personal or trustee return (1) This section applies in relation to an enquiry under section 9A(1) of this Act. (1A) Any matter to which the enquiry relates is completed when an officer of Revenue and Customs informs the taxpayer by notice (a "partial closure notice") that the officer has completed his enquiries into that matter. (1B) The enquiry is completed when an officer of Revenue and Customs informs the taxpayer by notice (a “final closure notice”)- (a) In a case where no partial closure notice has been given, that the officer has completed his enquiries, or (b) In a case where one or more partial closure notices have been given, that the officer has completed his remaining enquiries….” (a) In a case where no partial closure notice has been given, that the officer has completed his enquiries, or (b) In a case where one or more partial closure notices have been given, that the officer has completed his remaining enquiries….”
“22. An enquiry, begun by way of an enquiry notice, is concluded by a closure notice. The closure notice comprises two elements: (1) A statement of the officer’s conclusions; and (2) A statement of what, if anything, must be done to give effect to those conclusions. 23. The whole point of tax returns and enquiries into them is to ensure that the public interest in taxpayers paying the correct amount of tax is met. To that end, HMRC must have an appropriate ability to examine the return, but the taxpayer must have a fair opportunity to challenge (by way of appeal) either (i) the conclusions of HMRC or (ii) the manner in which those conclusions have been given effect to (by way of amendments to the return). As can be seen fromsection 28A of the Taxes Management Act 1970 , a closure notice quite clearly contains – and must contain – both elements; equally, as section 31(1)(b) of the same Act provides, an appeal lies against both “any conclusion stated” or any “amendment made”. 24. It is important to appreciate that the conclusions of a closure notice are distinct from the amendments that may arise out of those conclusions. Obviously, there is a nexus between the two – the amendments implement the conclusions reached – but they are very different things. The conclusions in a closure notice consist of a statement why the taxpayer’s return is incorrect (if it is), whereas the amendments set out how the return must be corrected in order to give effect to those conclusions. A closure notice must state the officer’s conclusions; and having issued a closure notice, HMRC has no power to amend the relevant return other than to give effect to the conclusions: Bristol & West at [24]; Investec at [51].”
“45. In my judgment the principles to be applied are those set out by Henderson J as approved by and elaborated upon by the Supreme Court. So far as material to this appeal, they may be summarised in the following propositions: (i) The scope and subject matter of an appeal are defined by the conclusions stated in the closure notice and by the amendments required to give effect to those conclusions. (ii) What matters are the conclusions set out in the closure notice, not the process of reasoning by which HMRC reached those conclusions. (iii) The closure notice must be read in context in order properly to understand its meaning. (iv) Subject always to the requirements of fairness and proper case management, HMRC can advance new arguments before the FTT to support the conclusions set out in the closure notice.”
“Trade” cannot be precisely defined, but certain characteristics can be identified which trade normally has. Equally some indicia can be found which prevent a profit from being regarded as the profit of a trade. Sometimes the question whether an activity is to be found to be a trade becomes a matter of degree, of frequency, of organisation, even of intention, and in such cases it is for the fact-finding body to decide on the evidence whether a line is passed. ... Trade involves, normally, the exchange of goods or of services for reward, not of all services, since some qualify as a profession or employment or vocation, but there must be something which the trade offers to provide by way of business. Trade, moreover, presupposes a customer (to this too there may be exceptions, but such is the norm), or ... trade must be bilateral—you must trade with someone. ... Then there are elements or characteristics which prevent a trade being found even though a profit has been made—the realisation of a capital asset, the isolated transaction (which may yet be a trade).”
“There is no justification in principle for differentiating between salary and wage earners and professionals whose income is the product of their personal exertion. In either case the person whose personal exertion earns the income derives the income.”
“…it seems to me, however, reasonably clear that paragraph III…is intended to be divided into two parts, and the finding of fact is “the present of£400 referenced to in paragraph II of this amended case was an emolument which arose or accrued to the appellant by reason of his vocation as a jockey.”
“... in consideration of, professional work done and vocation services rendered in successfully steering the horse ... to victory, in other words for accomplishing the object of his professional engagement, and that it was in the nature of a bonus or voluntary addition to the prescribed fee under the regulation scale”
“… It is accordingly the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but on the contrary, the court should seek to apply the old maxim of English law, verba ita sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does not mean that the court is to make a contract for the parties, or to go outside the words they have used, except insofar as they are appropriate implications of law.”
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see [Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd[1997] 3 All ER 352 ,[1997] AC 749 ]). (5) The “rule” that words should be given their “natural and ordinary meaning” reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had ...”
“57. In my view the principles which emerge from this line of authorities are the following. (i) Where an issue arises as to the identity of a party referred to in a deed or contract, extrinsic evidence is admissible to assist the resolution of that issue. (ii) In determining the identity of the contracting party, the court’s approach is objective, not subjective. The question is what a reasonable person, furnished with the relevant information, would conclude. The private thoughts of the protagonists concerning who was contracting with whom are irrelevant and inadmissible. (iii) If the extrinsic evidence establishes that a party has been misdescribed in the document, the court may correct that error as a matter of construction without any need for formal rectification. (iv) Where the issue is whether a party signed a document as principal or as agent for someone else, there is no automatic relaxation of the parol evidence rule. The person who signed is the contracting party unless (a) the document makes clear that he signed as agent for a sufficiently identified principal or as the officer of a sufficiently identified company, or (b) extrinsic evidence establishes that both parties knew he was signing as agent or company officer. 58. In my fourth proposition the phrase ‘sufficiently identified’ is not a happy one. It is intended to include cases where there is an inconsequential misdescription of the entity on behalf of whom the individual was signing. This is exemplified by Badgerhill Properties Ltd v Cottrell.”
“AGREEMENT FOR THE ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS 85. PARTIES (1). PAUL DAVID COLLINGWOOD (2). PCD RIGHTS LIMITED 88. … 89. AGREED PROVISIONS 90. … 1.1. the Intellectual Property": shall mean any and all intellectual property rights or analogous intangible rights under licences, consents, orders, statutes or otherwise including, without limitation: …”
“the payment of the sum of one pound (£1 ) by the Assignee to the Assignor, receipt and sufficiency of which the Assignor hereby acknowledges the Assignor assigns to the Assignee, throughout the world, with full title guarantee, the entire right, title and interest, including without limitation, any copyright or similar rights, whether vested, contingent· or future, together with the right to secure, renew and extend such right title and/or interest in the Assignee's name (and/or the name of its licensees, successors and/or permitted assigns) and all other rights (now name of its licensees, successors and/or permitted assigns) and all other rights (now in known or which may hereafter come into existence) and to the JPRs, to hold the same unto the Assignee (and its licensees, successors and/or permitted assigns) absolutely for the whole period of the relevant IPRs for the time being capable of being assigned by the Assignor together with any and all renewals and extensions and thereafter (insofar as possible) in perpetuity.”
“8. Neither party hereto shall be entitled to assign the whole or any part of their rights or obligations under this agreement without the other party’s prior written consent.”
“10. No modification, amendment or waiver of this agreement or any provisions of it shall be binding upon either party unless confirmed in writing and signed by both of the parties.”
“We confirm that there is an informal ‘Assignment of Rights’ agreement between our client and the company with regard to his image rights and we will provide you with a copy shortly under separate cover. … “Firstly I think it is important to clarify that Mr Collingwood has assigned the right of publicity to PDC Rights Ltd…. The contracts referred to, [...] all related to publicity. Mr Collingwood has assigned his rights to income to PDC Rights Ltd…”
“1.1.12 rights to sue for passing-off past infringements, and rights of the same or similar effect or nature in any jurisdiction.”
“BETWEEN (1) SLAZENGERS LIMITED … (“the Company”) (2) PAUL COLLINGWOOD (“Player”) …International Sports Mangement …”
“such amounts payable by the Company on the occurrence of such events as specified in Schedule 1”
“1.1 Subject to paragraphs 1.2 and 1.3, the Company shall pay to the Player a retainer per Contract Year (“Retainer”) of£75,000 . 1.2 If the Player achieves a career aggregate of 5,000 Test runs or 5,000 One Day International (“ODI”) in the first Contract Year, the Retainer for Contract Years two and three shall be increased to£80,000 .”
“PAYMENT AND CONSIDERATION 3.1 The Company [Slazenger Ltd] shall pay to the Authorised Agent (as per clause 11.1) during the Contract Period the Sponsorship Payments as earned by the Player. 3.2 Payments of the Retainer shall be made in two equal instalments…The Company shall pay the relevant Sponsorship Payment to the Authorised Agent within (30) days of receipt of the relevant invoice. 3.3 The Authorised Agent shall provide the Company on 1 July and 31 December in each Contract Year detailing any additional Sponsorship Payments which the Player has earned during the preceding six (6) months together with a valid VAT invoice for such amount. The Company shall be entitled to review such statement and the Player shall provide all reasonable assistance in replying to any queries the Company might have. Subject to the Company being satisfied that the statement is accurate the Company shall pay the relevant Sponsorship Payment to the Authorised Agent within thirty (30) days of receipt of the relevant invoice.”
“Nothing in this Agreement shall be construed so as to imply that the Player is an employee of the Company.”
“11.1 The Player hereby designates the Authorised Agent as the Player’s authorised agent for the purpose of invoicing and collecting amounts due in connection with this Agreement. All notices, submissions or material for the Player’s approval to be made or delivered by the Company to the Player pursuant to this Agreement shall be delivered to the Authorised Agent at the said address free of all charges such as, for example, shipping charges and customs charges, marked for the attention of Neil Fairbrother. In the event that the Player becomes tax resident in an alternative country, the Player agrees to notify the Company of such change as soon as reasonably possible following such transfer.”
“…Further to our conversation, I would like to confirm the details of yourPCA Ambassador work… You are engaged to undertake…”
“… AMONG (1) INTERNATIONAL SPORTS MANAGEMENT LIMITED (2) PAUL COLLING WOOD (‘PC’) (3) CLYDESDAL BANK PLC … 3. Grant of Rights … 3.2 PC warrants and undertakes to the Sponsor that: … 3.2.2 he has not granted and undertakes not to grant to any third party other than the Sponsor the Sponsorship Rights in relation to each of the Events.”
“4. Sponsorship Fees 4.1 In consideration of PC undertaking to grant to the Sponsor the Sponsorship Rights as described in this Agreement, the Sponsor agrees to pay to ISM the Sponsorship Fee of£68,000 (exclusive of VAT) per annum.”
“8. Relationships … 8.2 ISM and PC shall be responsible for making all appropriate deductions for or payments of tax, national insurance and other contributions due and payable… 8.3 PC and ISM shall be responsible for the declaration of any Sponsorship Fees to any governing or regulatory body.”
“9. Assignment This Agreement is personal to PC, the Sponsor and ISM and none of PC, the Sponsor or ISM may assign, transfer or sub-licence any of their rights or obligations thereunder without the prior written consent of the other party.”
“...income derived from the personal exertions of the taxpayer is his income for tax purposes, even if it is paid to a third party. That principle must in our opinion apply to the concepts of emoluments and earnings for the purposes of income tax on employment income in the United Kingdom.”
“From this line of authority I derive the following principles in the context of the present case: (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“…there is a line of authority which shows that if a party does not call a witness who is not known to be unavailable and/or who has no good reason for not attending, and if the other side has adduced some evidence on a relevant matter, then in the absence of that witness a judge is entitled to draw an inference adverse to that party and to find that matter proved.”
“If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced, it would not displace the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witnesses who might have been called on the part of the defendant amounts to nothing.”
“Looking at the authorities from Blatch v. Archer (1774) 1 Cowp. 63 right up to Earle v. Eastbourne District Community Hospital [1974] V.R. 722 , it may be accepted that the effect of a party failing to call a witness who would be expected to be available to such a party to give evidence for such party and who in the circumstances would have a close knowledge of the facts on a particular issue, would be to increase the weight of the proofs given on such issue by the other party and to reduce the value of the proofs on such issue given by the party failing to call the witness.”
“In Jones v Dunkel, (1959) 101 CLR at p. 320; [1959] ALR at p. 381; Windeyer, J, cited Wigmore on Evidence, 3rd. ed. (1940), vol. 2 s285, p. 162, which reads as follows: "The consciousness indicated by conduct may be, not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanations by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.”
“It seems to us that on aspects where the evidence points in a direction against Lloyd’s in an area which could have been dealt with by Mr Randall the judge should have drawn an adverse inference from Lloyd’s failure to call Mr Randall to deal with it. This does not mean that any allegation that the names make against Mr Randall must be accepted because he did not give evidence. It simply means that where the evidence points in a certain direction an adverse inference can be drawn from a failure to call the witness to deal with it.”
“151. … it was suggested for Mr Magdeev in reliance upon Jaffray v Society of Lloyd’s[2002] EWCA Civ 1101 that I was effectively bound to draw such inferences, at the risk of perpetrating a legal wrong. 152. As I noted in the course of legal submissions, this line of argument neglects to take account of the recent Court of Appeal decision in Manzi v King’s College Hospital NHS Foundation Trust[2018] EWCA Civ 1882 , where Sir Ernest Ryder SPT said: “Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. "the court is entitled [emphasis added] to draw adverse inferences” 153. He also made clear that such matters as proportionality may give rise to a valid reason for a witness’s absence. 154. In my judgment the point can be dealt with relatively briefly thus: i) This evidential “rule” is, as I have indicated above, a fairly narrow one. As I have noted previously ([2018] EWHC 1768 (Comm) at [115]), the drawing of such inferences is not something to be lightly undertaken. ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the “missing” witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. iii) The Court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: a) the overriding objective; and b) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during trial. iv) In this case, save as to one very narrow issue with which I will deal at the appropriate point below, the exercise required of the parties relying on this principle has not really been done…” “Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. "the court is entitled [emphasis added] to draw adverse inferences” i) This evidential “rule” is, as I have indicated above, a fairly narrow one. As I have noted previously ([2018] EWHC 1768 (Comm) at [115]), the drawing of such inferences is not something to be lightly undertaken. ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the “missing” witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. iii) The Court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: a) the overriding objective; and b) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during trial. iv) In this case, save as to one very narrow issue with which I will deal at the appropriate point below, the exercise required of the parties relying on this principle has not really been done…”
“44. In British Railways Board v Herrington[1972] AC 877 , 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said: “The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”
“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
“142. This statement of principle is in accordance with the earlier decisions of the House of Lords in R v IRC ex p. T C Coombs & Co[1991] 2 AC 283 and Murray v DPP[1994] 1 WLR 1 and the comments of Lord Sumption in the Supreme Court in Prest v Prest[2013] 2 AC 415 at [44]. 143. These principles mean that before I draw an inference and made a finding of fact adverse to a witness who was not called, I need to ask myself: - is there some evidence, however weak, to support the suggested inference or finding on the matter in issue? - has the Defendant given a reason for the witness’s absence from the hearing? - if a reason for the absence is given but it is not wholly satisfactory, is that reason “some credible explanation” so that the potentially detrimental effect of the absence of the witness is reduced or nullified? - am I willing to draw an adverse inference in relation to the absent witness? - what inference should I draw?”
“57. … it is not open to a party to call a witness to give evidence which that party will say is not only wrong but deliberately so. In this respect, the following passage in the judgment of Mustill LJ (as he then was) in The ‘Filiatra Legacy’ [1991] 2 Lloyd’s Rep. 337 at page 361 explains the position: “In one category are the situations where a party says that his own witness is giving mistaken albeit honest evidence and where he seeks to establish this either by calling direct evidence to contradict what his witness has said or by arguing that, when the evidence is regarded as a whole, a mistake is to be inferred. We believe that this is a common occurrence in civil litigation and unobjectionable in principle, provided that care is taken to avoid surprise and hence injustice. We adopt the reasoning of the British Columbia Court of Appeal in Cariboo v Carson Truck Lines 32 D.L.R. (2d) 36 (1961), and in the English cases there cited. From this must be distinguished the situations where a party wishes to assert that the evidence given in chief by a witness whom he has called is not only wrong, but is wrong on purpose. The most obvious instance is one where the witness has turned coat and has deliberately failed to come up to proof. Here the position seems clear. The party cannot cross-examine his own witness by reference to his proof of evidence or other previous statement unless and until the court has ruled that he is hostile. Nor may he call evidence to establish the general bad character of his witness. (See Ewer v Ambrose (1825) 3 B. & C. 246; The Criminal Procedure Act, 1865, s.3, applied by the Civil Evidence Act, 1968) ...” “In one category are the situations where a party says that his own witness is giving mistaken albeit honest evidence and where he seeks to establish this either by calling direct evidence to contradict what his witness has said or by arguing that, when the evidence is regarded as a whole, a mistake is to be inferred. We believe that this is a common occurrence in civil litigation and unobjectionable in principle, provided that care is taken to avoid surprise and hence injustice. We adopt the reasoning of the British Columbia Court of Appeal in Cariboo v Carson Truck Lines 32 D.L.R. (2d) 36 (1961), and in the English cases there cited. From this must be distinguished the situations where a party wishes to assert that the evidence given in chief by a witness whom he has called is not only wrong, but is wrong on purpose. The most obvious instance is one where the witness has turned coat and has deliberately failed to come up to proof. Here the position seems clear. The party cannot cross-examine his own witness by reference to his proof of evidence or other previous statement unless and until the court has ruled that he is hostile. Nor may he call evidence to establish the general bad character of his witness. (See Ewer v Ambrose (1825) 3 B. & C. 246; The Criminal Procedure Act, 1865, s.3, applied by the Civil Evidence Act, 1968) ...”
“46. From these authorities I derive the following propositions: (a) The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof has to be exceptional. (b) Nevertheless the issue does not have to be of any particular type. A legitimate state of agnosticism can logically arise following enquiry into any type of disputed issue... ... (d) A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court's endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation of being entitled to resort to the burden of proof. (e) In a few cases the fact of the endeavour and the reasons for the conclusion will readily be inferred from the circumstances and so there will be no need for the court to demonstrate the endeavour and to explain the reasons in any detail in its judgment. In most cases, however, a more detailed demonstration and explanation in judgment will be necessary.”
“24. When this court in Stephens v Cannon used the word "exceptional" as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice - and a respectable and useful part at that - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other...”
“41. There is in our judgment no room for doubt that the First-tier Tribunal does not have any judicial review jurisdiction. That was made abundantly clear by the House of Lords in Customs and Excise Commissioners v J H Corbitt (Numismatists) Ltd[1981] AC 22 . That case related to the Value Added Tax Tribunals rather than the First-tier Tribunal, but they too were a creature of statute with no inherent jurisdiction, and the relevant principles are identical. Lord Lane (with whom the majority agreed) said, in what remains the classic statement on the point: “Assume for the moment that the tribunal has the power to review the commissioners’ discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the [Finance Act 1972 ]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.” “Assume for the moment that the tribunal has the power to review the commissioners’ discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the [Finance Act 1972 ]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.”
“….in so far as the complaint is not focused upon the consequences of the statute but rather upon the conduct of the commissioners then it is clear that the tribunal had no jurisdiction. Its jurisdiction is limited to decisions of the commissioners and it has no jurisdiction in relation to supervision of their conduct.”
“In our view, the FTT does not have jurisdiction to give effect to any legitimate expectation which Mr Noor may be able to establish in relation to any credit for input tax….In contrast, a person may claim a right based on legitimate expectation which goes behind his entitlement ascertained in accordance with the VAT legislation (in that sense); in such a case, the legitimate expectation is a matter for remedy by judicial review in the administrative court; the FTT has no jurisdiction to determine the disputed issue in the context of an appeal under s83.”
“The question of jurisdiction can only be determined by reference to the particular statutory scheme in question that governs the tax tribunal’s jurisdiction.”
“There is no material difference between the right of appeal set out in s31 of TMA 1970 … and that set out ins83(1)(c) of the Value Added Tax Act 1994 . All the statutory provisions confer a right of appeal against specified HMRC decisions and none makes any reference to matters other than the statutory provisions dealing with the taxes concerned. If Parliament did not intend s83(1)(c) to give the Tribunal jurisdiction to consider matters other than a person’s right to credit under VAT legislation, I see no reason why Parliament could have intended it to consider, on an appeal under s31 of TMA 1970 … questions of … legitimate expectation which go beyond the relevant statutory provisions. If anything, the provisions of s50(6) and s50(7) of TMA 1970 make this even clearer in the context of this appeal than it was in the VAT appeal being considered in Noor, as those sections emphasise that the Tribunal’s focus should be on the amount of the assessments being made and leave no room for a consideration of whether considerations of legitimate expectation … prevent HMRC from making the assessments.”
“74. I have added emphasis because whether or not there is jurisdiction in any case turns on the language of the relevant legislation and the nature of HMRC's act or discretion; hence the conflicting arguments about discretion or the lack thereof. … 79. Many of the cases to which I was referred related to the statutory scheme in the VATA and not the TMA. Although it is a First-tier Tribunal decision, and therefore of persuasive authority only, Mr Randle relied on Judge Richards, as he then was, at paragraph 87 of Alway Sheet Metal[2017] UKFTT 198 (TC) (“ASM”). Judge Richards pointed out that the Tribunal's jurisdiction had to be determined by reference to the statutory provisions governing the appellant's appeal “as the Tribunal is a creature of statute with no inherent jurisdiction”
“The primary duty of the Revenue is to collect taxes which are properly payable in accordance with current legislation but it is also responsible for managing the tax system: sees1 of the Taxes Management Act 1970 . Inherent in the duty of the management is a wide discretion. Although the discretion is bounded by the primary duty (see R (on the application of Wilkinson) v IRC[2005] UKHL 30 at [21],[2006] STC 270 at [21], [2005] I WLR 1718 per Lord Hoffman…”