“There is a well-recognised need for caution in permitting challenges 10 to findings of fact on the ground that they raise this kind of question of law. That is well seen in arbitration cases and in many others. It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. As this case demonstrates, it is all too easy for the appeals 15 procedure to the High Court to be misused in this way. Secondly, the nature of the factual inquiry which an appellate court can and does undertake in a proper case is essentially different from the decisionmaking process which is undertaken by the tribunal of fact. The question is not, has the party upon whom rests the burden of proof 20 established on the balance of probabilities the facts upon which he relies, but, was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was 25 not so entitled. It follows, in my judgment, that for a question of law to arise in the circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to 30 that finding; and, fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of evidence coupled with a general assertion that the tribunal's conclusion was against the weight of the evidence and was therefore wrong. A failure to 35 appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to the High Court.”
“6. Miss Field did not attempt to challenge the Commissioners’ case that there had in fact been a loss of VAT attributable to fraud in the three chains which led back to defaulters, or in the related chains where 25 Eyedial’s purchases were from a contra-trader. Her cross-examination of the HMRC officers who attended to give oral evidence about the transactions was limited to satisfying herself that there remained an outstanding VAT debt, which in all cases the officer concerned confirmed to be so. There was, moreover, no evidence to the contrary 30 and we accept as a fact that there was outstanding tax in each of the three chains which led back to a defaulter, and in the four related chains to which Eyedial was linked via a contra-trader. As the transactions which make up the chains, the defaults and the fraudulent nature of the defaults were all undisputed there is nothing to be gained 35 by our setting out the detail of the chains, though we shall have some observations to make about them later.”
“As Miss Field cross-examined the witnesses only as to the continuing existence of the VAT loss, and did not argue that the VAT losses were attributable to any other cause or that her own transactions were not connected to them (in other words, she did not seek to argue that the 20 goods in which she dealt had not been handled by the other traders identified by the Commissioners in establishing the chains) we do not propose to deal with the evidence relating to the transactions which preceded Eyedial’s own purchases, but to confine ourselves instead to Eyedial’s own transactions, in each case of a purchase matched by a 25 sale of exactly the same quantity of goods.”
“in some cases the evidence showed 20 that the missing trader had not in fact received the tax, but had arranged for the price of the goods to be paid to a third party”
“[27] In January 2006, there were several telephone conversations between Miss Field and Mr Armstrong, who paid a further visit to Eyedial on 13 January. The same topics were discussed and, according 25 to Mr Armstrong’s record, Miss Field again volunteered at the meeting that she was aware that there were fraudulent chains but that she did not wish to become caught up in them. Mr Armstrong’s response, according to his record—and we consider it to be an accurate one— was to repeat what he had already said, that Eyedial would inevitably 30 be caught up in such chains if it carried on trading in large quantities of mobile phones. Later that month Miss Field asked again for permission to make monthly returns, a request which was refused by a letter of24 January 2006 , in which Mr Armstrong also told Miss Field that of the 12 transactions which featured in Eyedial’s 11/05 return, 11 had been 35 traced, all to defaulting traders. [28] A few days later Mr Armstrong sent Eyedial a formal warning letter, advising it that it was at risk of being considered by the Commissioners to be jointly and severally liable with others in its chains of transactions. Miss Field’s response was to advise Mr 40 Armstrong that she had immediately ceased trading with her current suppliers, and was looking for others. According to Mr Armstrong’s notes, which again Miss Field did not challenge, she extolled the quality of her due diligence, and asked Mr Armstrong for his own opinion. He declined to give it, but did tell her that she should continue 46 to make the checks she was undertaking. However, a few days later he wrote to her, again pointing out that merely making the enquiries was not enough; true due diligence, he wrote, was the analysis of the information received. A few days later, in a telephone conversation in which Miss Field complained to Mr Armstrong 5 that, when checking with HMRC’s Redhill office, to ensure that Eyedial was a registered trader, an intending purchaser had been told (she understood) that Eyedial was a defaulter; her complaint was not so much that it had apparently been described, wrongly, as a defaulter, but that it had not 10 in fact been involved in any defaulting chains. Mr Armstrong reminded her that, as he had told her in his letter of24 January 2006 , the Commissioners had discovered that it had been involved in several such chains. [29] The next visit took place on20 February 2006 , shortly before the 15 start of the period with which we are concerned. On this occasion, too, Mr Hunton was present; Mr Armstrong was accompanied by another officer, a Mr Martin. Mr Armstrong’s note was again not challenged. It shows that Miss Field said she knew that there were pre-arranged chains of transactions, but that she was not involved in them and that 20 Mr Armstrong was picking on her by not allowing Eyedial to make monthly returns. Again, Eyedial’s due diligence was discussed, in the manner which we have already related. As had become his habit, Mr Armstrong wrote following the meeting, again pointing out that due diligence consisted in the analysis of the information obtained from the 25 other traders with which Eyedial was proposing to deal. On5 May 2006 Miss Field wrote to Mr Armstrong. Her letter contains the following passage, on which the Commissioners rely: ‘Defaulters: we note your comments concerning the possibility that we may have unknowingly been involved in transactions 30 where there have been defaulters, and you state this may have an impact on the application [for monthly returns]. We understood that following the recent EC ruling, that we can not be held responsible for defaulters within a transaction chain of whom we are unaware. Therefore how can this be taken into consideration 35 in relation to our application for monthly VAT returns?’ ”
“You know that some people go into this and deal with dodgy people, but I’ve got nothing to hide. If you say don’t do a deal, we’ll not. We don’t want to go to jail.”
“On1 February 2006 , Ms Field phoned me she had received my Joint & Several warning letter. She told me that she had ceased trading with all the people that she had traded with in the past and was sourcing new suppliers now she was exporting. She asked if she was safe if she 35 carried on doing the checks she was doing. I told her that the due diligence she did was the only thing that would protect her from me taking any action and she should keep it up and not become complacent and let it slip. She said that Veracis had been in and told her that they thought her due diligence was very good, what did I 40 think? I told her I wouldn’t comment on that, just reiterated my previous point. She said the paperwork was being drawn up with her investor and they would send me a copy. She asked me to send her the check list for exports discussed at the last meeting. I told her I would.”
“what to do with them?”