Ross Michael Coates & Anor v The Commissioners for HMRC [2026] UKFTT 723 (TC)

[2026] UKFTT 00723 (TC)Case No TC 09887
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 8 May 2026Date Judgment date: 15 May 2026
Taylor House, London
Appeal reference: TC/2019/01747
PROCEDURE – barring application – deliberate and contumelious non-compliance with directions by HMRC – no prejudice to appellant – application dismissed.
Before
TRIBUNAL JUDGE
Between
Ross Michael CoatesClaimantRichard Francis Stephen BroughtonAppellanttrading asAppellantRoss Coates SolicitorsAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSAppellantRoss Michael CoatesRichard Francis Stephen Broughtontrading asRoss Coates SolicitorsAppellantsTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentsMr Andrew P Young, instructed by Lexlaw for AppellantMr Gift Nyoni, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Background

[1]This is an application by the Appellants (“RCS”) to bar HMRC.[2]On 2 November 2025

Judge Nicholas Aleksander issued the following directions in this appeal:

“LISTING INFORMATION 5. Not later than 30 January 2026 both parties shall send or deliver to the Tribunal and each other a statement detailing: (1) Whether counsel is appointed; (2) The number and role of participants for that party; (3) Confirmation that all participants for that party will attend the hearing centre for the face to face hearing of the appeal; (4) Where a participant is a witness, whether the witness will attend the entire hearing or only attend to give his or her evidence. (5) How long the hearing is expected to last (together with a draft trial timetable if the hearing is expected to last four days or more); (6) Whether reading time should be allocated to the panel in addition to the time estimated for the hearing in (5) above and, if so, how long; (7) two or three agreed periods of time for the hearing which are within or shortly after a hearing window starting 1 April 2026 and ending 30 September 2026 and each of which is at least as long as the longest time estimate for the hearing provided under (5) above OR if the parties are unable to agree such periods, then each party must provide their dates to avoid for a hearing in the same hearing window. … UNLESS ORDER 15. In the event that a party fails to comply with these Directions by the dates specified (absent the Tribunal granting an extension of time following an in-time application for the same) then these proceedings MAY be STRUCK OUT or the Respondents MAY be BARRED (as the case may be) without further reference to the parties.”

UNLESS ORDER

[3]On 26 January 2026 HMRC provided the listing information to the Tribunal. However they, deliberately, did not provide the listing information to RCS. In HMRC’s written response, Olivia Donovan of HMRC Legal Group, explains their reasons for this course of action as follows:
“3. The Appellant asserts that HMRC failed to comply with Direction 5 of the Tribunal’s directions released on 2 October 2025. That assertion is incorrect. 4. HMRC sent its listing information to the Tribunal on 26 January 2026, in compliance with the deadline of 30 January 2026. HMRC was therefore not in default of the direction. 5. The direction requires the provision of listing information to the Tribunal. HMRC complied with that requirement within time. 6. HMRC did not, at that stage, serve a copy of its listing information on the Appellant. That was a deliberate and proportionate case management decision, taken in light of the procedural history of this appeal. 7. As set out in HMRC’s Statement of Case, this appeal has been subject to repeated delay, including multiple extension applications and postponements sought by the Appellant over several years. 8. HMRC’s dates to avoid were provided to the Tribunal to assist listing. Providing those dates directly to the Appellant at that stage would have risked further delay by enabling the Appellant to attempt to avoid listing altogether, contrary to the Tribunal’s express intention to progress the appeal without further delay. 9. In any event, Direction 6 expressly provides that the Tribunal may fix the hearing date despite any non-compliance, and that a request for postponement based on inconvenience is unlikely to succeed where a party has failed to keep dates clear. 10. No prejudice has been suffered by the Appellant. The application identifies no procedural disadvantage arising from HMRC’s approach, only a technical complaint divorced from the realities of case management.”
[4]It is simply incorrect to assert, as Ms Donovan does at [4], that HMRC were not in breach of the Direction as they sent the listing information to the Tribunal. Direction 5 clearly requires that “both parties shall send or deliver to the Tribunal and each other” [my emphasis].[5]On 9 March 2026 RCS made an application for HMRC to be barred on the basis of non-compliance with Direction 5. That application suggests that there is an automatic barring order. On 10 March 2026 HMRC responded, opposing that barring application. On 11 March RCS replied. The case was then listed for an oral hearing to determine the application.[6]It is clear that there is no automatic strike-out/barring order in the directions. Rather it is drafted as a “may” order, giving the Tribunal the discretion to bar HMRC under r.8(3)(a) and r.8(7).[7]This is therefore not, as Mr Young suggested, a case of relief from sanctions. Rather it is for the Tribunal to consider whether to impose sanctions.

Legal framework

[8]In determining whether to exercise its discretion to impose a sanction, including barring under r.8(3)(a) and r.8(7), the Tribunal must seek to give effect to the overriding objective to deal with cases fairly and justly, which means balancing the various factors such as reasons for non-compliance and the question of prejudice: BPP Holdings v HMRC [2016] EWCA Civ 121 at [27].[9]In determining whether to bar HMRC in such circumstances it is now well established that the Tribunal should follow the three stage approach in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926 at [24], as approved in BPP Holdings v HMRC [2016] EWCA Civ 121; [2016] STC 841 and BPP Holdings v HMRC [2017] UKSC 55; [2017] STC 1655. “A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application…”

Discussion

[10]First, I identify and assess the seriousness and significance of the breach.[11]There has been a serious breach. HMRC has deliberately failed to comply with the Tribunal’s directions. If they considered the direction open to abuse, by “enabling [RCS] to avoid listing”, they should have applied to vary the directions so that the listing information was provided directly to the Tribunal only.[12]Especially when RCS are a regulated profession, indeed officers of the court, it is an extraordinary allegation to say that they would deliberately engage in abusive behaviour without particularising the conduct on which HMRC rely to support the allegation. If HMRC consider such an allegation could have been made-out the proportionate conduct would have been to apply to the Tribunal to vary the directions so the listing information would be filed but not served. The conduct of HMRC – deliberately choosing to flout the directions of the Tribunal – is wholly unreasonable conduct. (Although it does not follow that RCS subsequently applying for HMRC to be barred was a reasonable course of action.)[13]I also note that by failing to cooperate with the Tribunal, in violation of r.2(4)(b), HMRC have brought about (at least in a but for sense) the circumstances giving rise to this hearing – incurring unnecessary expense and diverting the resources of the Tribunal.[14]I acknowledge that at the hearing – quite properly – HMRC apologised for the conduct of their previous litigator. They regretted the tenor of the submissions. They acknowledge that it was conduct which if engaged in by a regulated individual could lead to disciplinary sanctions. However, that apology comes very late, and as such I attach little weight to it.[15]Whilst HMRC’s conduct is serious, it is hard to characterise it as significant in the context of the appeal. The purpose of listing information is to allow the substantive hearing to be listed. With the information HMRC provided to the Tribunal a substantive hearing has been listed for 26-30 June 2026.[16]Second, I consider why the default occurred.[17]As noted, the default occurred because HMRC, through its litigator, deliberately chose to disregard the Tribunal’s directions. That is a very serious matter. I agree with the RCS in their reply that HMRC’s conduct was “contumelious”. I note that HMRC have apologised on the day of the hearing. I attach little weight to that, due to the delay in HMRC apologising.[18]Finally, I consider all the circumstances of the case in the round.[19]While HMRC’s conduct in this matter is indeed contumelious, RCS have suffered no real prejudice in the conduct of the litigation. Mr Young suggested there was prejudice to the system as a whole when HMRC act in this way – I accept that, but it goes to the seriousness of the breach, it is not prejudicial to RCS in their ability to present their case.[20]Mr Young suggested that RCS had been prejudiced as they were not able to comment on the timetable for the hearing, required by Direction 5(5). However, that only applies when a hearing is listed for four or more days – the substantive hearing in this case is listed for three days. So that is not relevant.[21]Mr Young also suggested that barring is appropriate as the value of the penalties in issue is relatively small compared to the professional costs for HMRC and RCS in litigating a three day hearing. I do not find that to be a relevant factor.[22]The case has been listed in the same way as it would have been if HMRC had copied RCS in when sending the listing information to the Tribunal. In those circumstances – viewing matters in the round – I find it would be disproportionate to bar HMRC.[23]The application is therefore dismissed.

Right to apply for permission to appeal

[24]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. Release date: 15 May 2026