Talbot Kwok v The Commissioners for HMRC [2026] UKFTT 624 (TC)

[2026] UKFTT 00624 (TC)

Case No TC 09858

FIRST-TIER TRIBUNAL

TAX CHAMBER

Date Judgment date: 23 April 2026

Between

TALBOT KWOKAppellant

THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondents

Decided on papers

Appeal reference: TC/2024/06025

TRIBUNAL JUDGE MATTHEW DONMALL

DECISION

Introduction

[1]On 16 November 2024, the Appellant filed a notice of appeal against a refusal to allow £62,990.26 as input VAT tax for periods 12/23 and 01/24, and on 13 November 2025, five days before the hearing of his appeal (the Listed Hearing), HMRC withdrew. On 12 December 2025 the Appellant made an application for costs under rule 10(1)(b) of the First-tier Tribunal (Tax Chamber) Rules 2009 (FTTTC Rules), claiming costs of £168,573.45 (the Costs Application).

[2]By their response to the Costs Application of 28 January 2026 (HMRC’s Response), HMRC accept liability for the Appellant’s reasonable and proportionate costs, to be assessed on the standard basis, but submit that the Costs Application does not include a schedule in sufficient detail to allow the Tribunal to undertake a summary assessment; that the claimed costs are unreasonable and disproportionate; and that the appropriate direction is that the costs be assessed by way of detailed assessment if not agreed.

[3]It follows that the issues before me for determination are:(1) Should an order be made for HMRC to pay the Appellant’s costs of and incidental to the appeal?

(2) Should such an order be made on the standard or indemnity basis?

(3) Should the order be for detailed assessment of the Appellant’s costs, or should I proceed to summary assessment (and if so, in what amount)?

[4]For the reasons set out below, I direct that HMRC should pay the Appellant’s costs of and incidental to the appeal, on the standard basis, to be determined by detailed assessment if not agreed.

Papers before me

[5]In considering the Appellant’s Cost Application, I have the following papers before me:(a) Exhibit A to the Costs Application, being the Hearing Bundle for the Listed Hearing. This was comprised of some 250 pages of documents, followed by legislation and case law.

(b) Exhibit B is a four-page document with submissions entitled “Evidence of HMRC’s Unreasonable Behaviour”.

(d) Exhibit D is a two-page summary of the hours claimed by the Appellant by month. (2) HMRC’s Response. (a) Exhibit E: A 31-page “Summary of Additional Litigant-in-Person Time”, i.e. additionalto that already claimed in the Costs Application, for November 2025 to March 2026.

(b) Exhibit F:

“2019 and 2024 VAT Compliance Checks” (c) Exhibit G: “VAT Repayment Interest Correspondence with HMRC” (d) Exhibit HMRC: “Clarification Correspondence with HMRC”

Background

[6]The following outline chronology is to provide a broad context for the discussion of the issues before me and is not intended to be exhaustive:(1) The Appellant submitted a VAT return for 12/23 in which the VAT reclaimed on purchases was £56,215.14. As there was no output VAT on sales declared, the net VAT position was a repayment claim of £56,215.14.

(2) On 24 January 2024, HMRC opened a check into the Appellant’s VAT return for 12/23, asking for further documents and information, including a VAT audit trail detailing sales and purchases that made up the figures on the return.

(3) Correspondence followed, in which (among other things) HMRC requested various purchase invoices.

(4) On 17 October 2024, HMRC wrote to the Appellant notifying him of HMRC’s decision that the amount of input tax claimed in his VAT returns for 12/23 and 01/24 were wrong, and reducing the repayment amounts from £56,215.14 to £25,880.75 (12/23) and from £75,219.37 to £42,563.50 (01/24) (the Decision).

(5) On 16 November 2024, the Appellant submitted his notice of appeal against the Decision, arguing that the full amount of input VAT claimed is allowable and so claiming an entitlement to the further repayment of £62,990.26 that had been disallowed.

(6) On 9 January 2025, the appeal was assigned to the standard category.

(7) Following an extension of time application, on 14 April 2025, HMRC submitted their Statement of Case, contesting the appeal on the basis that the Appellant had to comply with his legal requirement to retain sufficient records to support their VAT Return declarations and produce them accordingly.

(8) On 26 August 2025, the hearing was listed for 18 November 2025, for one day. There was only one witness statement, that of a VAT compliance officer for HMRC, Louise Campbell.

(9) On 13 November 2025, HMRC withdrew from the appeal.

(10) On 14 November 2025, the Tribunal confirmed that HMRC were no longer defending the decision under appeal and the appeal was therefore allowed.

I: Should a costs order be made?

[7]Section 29 Tribunal Courts and Enforcement Act 2007 provides that the award of “The costs of and incidental to all proceedings” in the Tribunal shall be at the discretion of the Tribunal and subject to the FTTTC Rules.

[8]Rule 10(1) FTTTC Rules provides that the Tribunal may only make an order for costs in certain limited cases including: a) wasted costs; b) “if the Tribunal considers that a party or their representative has acted unreasonably in bringing, defending or conducting the proceedings” and c) in a case allocated to the complex track and in respect of which the appellant has not opted out of the costs’ regime. The intention behind Rule 10 of the FTT rules is “that the First-tier Tribunal is designed in general to be a ‘no costs shifting’ jurisdiction … Rule 10 should therefore be regarded as an exception to this general expectation that both sides will bear their own costs, whatever the result of the appeal”, Distinctive Care v HMRC

[2019] EWCA Civ 1010

per Rose LJ at [7].

[9]In respect of the approach to be taken to considering whether a decision to withdraw amounts to unreasonable conduct under rule 10(1)(b), the Upper Tribunal in Tarafdur v HMRC

[2014] UKUT 362

set out the principles, including whether it was unreasonable for the withdrawing party not to have withdrawn at an earlier stage. However, given that HMRC accept liability for paying the Appellant’s costs under rule 10(1)(b), it is unnecessary to consider these points further.

[10]A claim to costs must be made, in writing (rule 10(3)(a)); may be made at any time but no later than 28 days after the final determination of the appeal (rule 10(4)) and must be accompanied by a schedule of costs (rule 10(3)(b)). The Costs Application was made in writing and made within 28 days of the Tribunal letter of 14 November 2025. Even though there may be issues with regards to the schedule in the Costs Application in this case, considered further below, any deficiency does not of itself preclude a costs order being made, see the lengthy consideration of this issue in Harris v HMRC

[2022] UKFTT 00447 (TC)

. Consistent with that, although HMRC contend that the Costs Application does not provide sufficient detail to enable summary assessment, they do not contend that there should be no order as to costs for that reason.

[11]I am satisfied in these circumstances that the Tribunal can and should make the order that HMRC should pay the Appellant’s costs of and incidental to the appeal.

II. Costs on the standard or indemnity basis?

[12]Part 44.3 CPR explains the difference between standard and indemnity costs:(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. (Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)

(2) Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party. (Factors which the court may take into account are set out in rule 44.4.)

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

[13]In essence under the standard basis the court will disallow costs which are unreasonably or disproportionately incurred and unreasonable or disproportionate in amount. Any doubt under the standard basis is resolved in favour of the paying party. By contrast costs awarded on an indemnity basis will exclude only costs unreasonably incurred or unreasonable in amount and the benefit of the doubt is in favour of the receiving party.

[14]The test for whether indemnity costs are payable requires that the conduct of the litigation must be unreasonable to a high degree and “out of the norm”, see Excelsior Commercial & Industrial Holdings Ltd v Sailsbury Hammer Aspden & Johnson

[2002] EWCA 879

as applied in a Tribunal context in Ad Hoc Property Management Ltd v HMRC

[2019] UKFTT 315

. In Ad Hoc Property Management,Judge Canaan noted that in considering whether there has been unreasonable conduct to a high degree, he should be wary of placing too much weight on the fact that the respondents effectively capitulated. He cited Arcadia Group Brands Ltd v Visa Inc

[2015] EWCA Civ 883

“83. The Judge had a wide discretion as to costs but I consider that, in awarding costs on the indemnity basis rather than the standard basis, the Judge made an error in principle. The weakness of a legal argument is not, without more, justification for an indemnity basis of costs, which is in its nature penal. The position might be different if proceedings or steps taken within them are not only based on a plainly hopeless case but are motivated by some ulterior commercial or personal purpose or otherwise for purely tactical reasons unconnected with any real belief in their merit.”

[15]In Cheshire Centre for Independent Living v HMRC

[2020] UKUT 275 (TCC)

, the Upper Tribunal made clear that the threshold for an order for costs under rule 10(1)(b), and that for indemnity costs, is not the same: for indemnity costs, the conduct must be unreasonable to a high degree. It does not follow that if costs are awarded under rule 10(1)(b), it must be on the indemnity basis.

[16]In Harris, the Tribunal observed, by extension of the Court of Appeal’s reasoning in Distinctive Care, that when considering whether indemnity costs should be awarded the Tribunal does not consider the length of the enquiry to be a relevant factor, as the focus of the Tribunal was to be on the handling of the litigation and not as to the quality of the original decision, and the earliest conduct that was relevant in the context of whether a party had behaved unreasonably was the point at which the proceedings commenced [100-101].

[17]Accordingly, the question I must address is whether HMRC’s conduct of the litigation was “unreasonable to a high degree” such as to warrant assessment of costs on an indemnity basis.

[18]As to this, it is notable that the Cost Application itself did not claim costs on an indemnity basis. At Part 9, conclusion, it asserted the “reasonableness and proportionality” of the costs claimed, which is consistent with costs on the standard basis. Rather, it is only after HMRC’s Response had sought an order on the standard basis that in his Reply, the Appellant advanced a contention for the indemnity basis. That contention was put as follows:

[30]As set out in Part 3 of the Appellant’s Costs Application, the Respondents’ conduct included reliance on speculative methodology, failure to engage with evidence, procedural mismanagement, disproportionate withholding of VAT repayments, and the very late withdrawal of the case after the Appellant had completed substantial preparation for trial.

[31]Those matters are relied upon collectively as demonstrating conduct which falls outside the norm and which justifies consideration of assessment on the indemnity basis.

[19]Part 3 of the Costs Application had set out the six aspects of conduct relied upon (emphasis in original):

“3.1 Reliance on Speculation Rather Than Evidence HMRC repeatedly relied on hypothetical “risks” and speculative concerns—such as the possibility of duplicate claims or receipts being used by others—despite: • no third-party claims • no duplicate input tax • no supplier objections • full traceability of transactions Speculative concerns were treated as determinative without evidential foundation. This approach reversed the normal evidential burden and required the Appellant to disprove risks that had no factual basis. 3.2 Failure to Consider Evidence Properly The Appellant consistently provided invoices, receipts, payment evidence, supplier confirmations and full explanations. HMRC did not meaningfully engage with this material and rejected Regulation-compliant documentation without addressing the evidence supplied. This necessitated repeated resubmission of documents and additional explanations, substantially increasing workload. 3.3 Procedural Mismanagement After Caseworker Transfer Following the transfer of the file in May 2024, the enquiry experienced: • loss of continuity, • repeated requests for documents already provided, • new concerns raised late without clear explanation, and • significant delay. This duplication and lack of continuity materially increased the time required for the Appellant to respond and maintain records. 3.4 Disproportionate Withholding of VAT HMRC withheld: • £152,626.50 between January and October 2024; and • £62,990.26 between October 2024 and November 2025. This prolonged withholding went far beyond what was necessary for reasonable verification. It caused the Appellant’s business to enter enforced hibernation, removed the ability to fund representation, and directly resulted in the extensive time the Appellant was forced to spend preparing the case alone. 3.5 Failure to Comply With Tribunal Directions HMRC did not include the Appellant’s 250-document evidence pack in the hearing bundle, notwithstanding express directions requiring both parties’ documents to be included. This omission: • prejudiced the Appellant’s preparation, • required Tribunal intervention, and • generated avoidable additional work. Non-compliance with directions is well-recognised as unreasonable conduct under Rule 10. 3.6 Late Withdrawal After Full Preparation HMRC withdrew the appeal five days before the hearing, after maintaining their position for many months. By that time, the Appellant had: • reviewed the entire 571-page bundle, • drafted a skeleton argument, • prepared oral submissions, • prepared for cross-examination, and • completed all Tribunal requirements. A very late withdrawal after full LIP preparation is a classic example of unreasonable conduct, repeatedly recognised in Tribunal authority.”

Following the transfer of the file in May 2024, the enquiry experienced: HMRC withheld: This omission: By that time, the Appellant

By that time, the Appellant had:

[20]In my judgment, there would be potential procedural unfairness here were I to make a finding on indemnity costs in the Appellant’s favour, in that the Appellant did not raise indemnity costs until his Reply, and HMRC in their Response did not therefore know that this was a point that they might need to respond to. But in any case I do not consider that there is sufficient basis for a finding that HMRC’s conduct was unreasonable to a high degree such as to warrant the penal imposition of an assessment on the indemnity basis. I do not consider that the complaints at 3.1, 3.2, 3.3 and 3.5, even taken at their highest as asserted, would be sufficient to amount to conduct that was unreasonable to a high degree. As to 3.4, the withholding of VAT between January 2024 and October 2024 was all a period prior to the appeal, and for that reason would not be a sufficient basis of itself for indemnity costs. In any case, I would not consider that the steps taken within that period involving HMRC undertaking checks of the Appellant’s VAT returns and the evidential basis for them to be outside the norm, in light of the witness evidence of Officer Campbell and contemporaneous documentation to which she refers in Exhibit A to the Costs Application. As regards the period from October 2024 up to November 2025 when HMRC was defending the Decision, HMRC implicitly concede, in accepting an order of costs against them under rule 10(1)(b), that their withdrawal was unreasonably late. But of itself, the fact that HMRC persisted in defending this appeal until the last moment is not sufficient to meet the higher threshold for indemnity costs, see paragraphs 14 and 15 above, and the same applies to the complaint at 3.6. I therefore conclude that costs should be assessed on the standard basis.

III. Should there be summary or detailed assessment?

[21]A key difference between summary assessment and detailed assessment is that summary assessment would be undertaken by the Tribunal, whereas detailed assessment is not. Rule 10(6) and rule 10(7)(a) provide as follows: (6) The amount of costs (or, in Scotland, expenses) to be paid under an order under paragraph (1) may be ascertained by—(a) summary assessment by the Tribunal;

(b) agreement of a specified sum by the paying person and the person entitled to receive the costs or expenses (the “receiving person”); or

(c) assessment of the whole or a specified part of the costs or expenses, including the costs or expenses of the assessment, incurred by the receiving person, if not agreed. (7) Following an order for assessment under paragraph (6)(c) the paying person or the receiving person may apply— (a) in England and Wales, to a county court, the High Court or the Costs Office of the Supreme Court (as specified in the order) for a detailed assessment of the costs on the standard basis or, if specified in the order, on the indemnity basis; and the Civil Procedure Rules 1998 shall apply, with necessary modifications, to that application and assessment as if the proceedings in the tribunal had been proceedings in a court to which the Civil Procedure Rules 1998 apply;…”

[22]In Harris, Judge Amanda Brown KC considered in detail the nature of summary assessment and when it is appropriate. In particular:(1) The Tribunal considers that it is apparent that the Civil Procedure Rules (CPR) essentially assumes that summary assessment is an exercise which will be carried out only where there is a judge with a sufficient familiarity with the proceedings to undertake the task [40].

(2) Good reason to refuse summary assessment may include, inter alia, the paying party showing substantial grounds for disputing the sum claimed [41] This may include a challenge to the proportionality of the claim [41]. Again at [54](1): summary assessment is an exercise which proportionately deals with an ancillary matter in the case where there is little controversy as to the determination of the extent (or quantum) of the claimant’s claim.

(3) Summary assessment, by its very nature, does not permit of a detailed consideration of the application of the indemnity principle, i.e. that the costs stated do not exceed the costs which the receiving party is liable to pay in respect of the work which the schedule covers [45].

(4) At least the level of particularisation as required under the CPR and Form N260 is appropriate [58, 61]. Where there has been no judicial determination of the appeal, more detail may be required. “The schedule of costs needs to provide a sufficient summary of the time and cost incurred in relation to key stages/activities (most specifically critical documents) in the appeal.” [61].

(5) Defects in the schedule of costs will be a matter taken into account when determining whether to summarily assess [54].

(6) A relevant consideration is the size of the claim. Cost claims in excess of £100,000 are comparatively rare in the Tribunal. [88]

[23]In the present case, HMRC contend that the Costs Application does not provide sufficient detail to enable summary assessment to take place. The Appellant disputes this, referring to the comprehensive breakdown of the work undertaken across pages 26-151 of the Costs Application.

[24]While it is very lengthy, and detailed in certain respects, I do not consider that the Cost Application is drafted in such a way as to facilitate a summary assessment of costs. Take, for example, the claim to 312 hours of work in June 2025. At pages 116 to 120, the Appellant sets out what he did. Under 3, he identifies the “Detailed Tasks Performed” as follows:

“June required: • restructuring hundreds of pages of evidence, • building numbering systems for bundles, • drafting internal legal notes and analytical commentaries, • annotating documents to show relevance and provenance, • creating cross-references across multi-year records, • reading and interpreting Tribunal Directions, • preparing listing information and witness considerations, • obtaining supplementary third-party confirmations, • designing the architecture for the final Tribunal case.”

[25]The Appellant does not state how much time was spent on each task. Instead, he asserts at a later point that his daily average working time that month was 12-13 hours a day. This is not in keeping with the approach in Form N260 (nor indeed is it like the way in which costs are itemised for the purposes of detailed assessment in the model form of bill of costs under CPR Part 47 schedule of costs precedents).

[26]Even were it not for this difficulty, I am firmly of the view that summary assessment would not be appropriate in any case in this matter, given the following:(1) The size of the claim, at £168,573.45, before even the further costs sought by the Appellant in his Reply.

(2) The fact that HMRC has substantial grounds for disputing the proportionality and extent of those costs. The total number of hours claimed is 6,404 hours, in respect of an appeal that was listed for a single day, with a single HMRC witness, and with a hearing bundle of 571 pages, half of which was comprised of legislation and case law. Even if the Appellant had a further 250-page evidence pack as he asserts, that remains a relatively modest number of total pages of documentation for the hearing.

(3) A significant proportion of these costs pre-dated the commencement of the appeal itself. While costs incidental to proceedings can include costs notified before the appeal was notified before the FTT, it depends on the nature of the work done and the scope of the ultimate appeal, and in Distinctive Care the Court of Appeal noted that “Which costs are properly recovered is a matter for the costs officer who is experienced in these matters to decide.” The Costs Application appears to proceed as though all costs in the period from January 2024 can be recovered, including (for example) accountant fees in respect of the reconstruction of VAT evidence for periods other than those at issue in the appeal.

[27]For these reasons I decline the Appellant’s invitation to undertake a summary assessment of his costs and order detailed assessment if the costs cannot be agreed.

Conclusion

[28]For the above reasons, I order HMRC to pay the Appellant’s costs of and incidental to the appeal on the standard basis by way of detailed assessment if they cannot be agreed.

Right to apply for permission to appeal

[29]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.

Cited in 1 later judgment

Athena Luxe Limited v The Commissioners for HMRC 2026