“the Liquidator wishes to interview Mr Kara in respect to the merits of the appeals and 40 the credibility of Imran Kara as a witness. Only in an interview conducted in person will the liquidator be able to ascertain the extent to which (if any) Mr Kara is lying. As the Tribunal Judge at the First-tier Tribunal Hearing in Manchester (18 & 195 November 2010 ) found, much of the evidence of Mr Kara was wholly implausible and untenable. Such an exercise cannot be usefully conducted in correspondence or via video link.”
“(1) The lack of co-operation shown by Mr Kara to the Liquidator; 6 (2) The overall lapse of time since the strike out application, a particularly strong factor in the light of the emphasis now put on the need for litigation to be conducted effectively as recognised in McCarthy & Stone, regardless as to whether any party is particularly at fault in that regard. For example, the fact that the application for an order in the High Court was delayed 5 because of the attention needed to be given to the Commission Proceedings and that was not entirely because of fault on the Applicants part (although as indicated above in my view they were not completely blameless), does not mean that the delay ensuing should not be taken into account, particularly where it is the 10 Respondents, who are clearly blameless in this regard, who are prejudiced as a result. (3) The delay in pursuing the ceding of the conduct of the appeal, exacerbated by the failure to recognise the invalidity of the purported assignment; and (4) The absence of a specific provision in the Rules permitting reinstatement 15 meaning that the burden is a heavy one on the Applicants to show special circumstances justifying the setting aside of the strike-out direction.”
“ 28. Rule 8 (6) of The Tribunal Rules provides as follows: 15 “An application under paragraph (5) must be made in writing and received by the Tribunal within 28 days after the date that the Tribunal sent notification of the striking out to the appellant.”
“(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. 30 (2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the 35 proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.”
“There is nothing in the wording of the relevant rules that justifies either a different or particular approach in the tax tribunals of FtT and the UT to compliance or the efficient conduct of litigation at a proportionate cost. To put it 40 plainly, there is nothing in the wording of the overriding objective of the tax tribunal rules that is inconsistent with the general legal policy described in Mitchell and Denton. As to that policy, I can detect no justification for a more relaxed approach to compliance with rules and directions in the tribunals and while I might commend the Civil Procedure Rules Committee for setting out the 45 policy in such clear terms, it need hardly be said that the terms of the overriding objective in the tribunal rules likewise incorporate proportionality, cost and 9 timeliness. It should not need to be said that a tribunal’s orders, rules and practice directions are to be complied with in like manner to a court’s. If it needs to be said, I have now said it.”
“I considered the length of the delay in this case and explanation for it. It is clear 15 that from the date of appointment of the Liquidator the consistent view was taken that the purported assignment of the rights of the appeals was invalid in law. Despite the Applicant’s repeated correspondence on the point, that position was not challenged nor was any action taken to validate the assignment. It was submitted that the Applicant had made vigorous efforts to regain conduct of the 20 appeals. I do not accept this to be the case; to the contrary the Applicant took no action to remedy the situation in respect of the assignment and failed to engage in any meaningful way with the Liquidator.”
“However, this must be balanced against the prejudice to HMRC which is twofold: first there is a strong argument in finality of litigation. A substantial amount of time has elapsed over which HMRC was entitled to assume that matters had been concluded. Second, the impact of the time that has elapsed on the quality of 20 evidence. Although the Applicant now restricts its application in respect of MAN/2007/0820 to the arguments pursued in Fonecomp, the evidence (if any is still within HMRC’s possession) which would have to be reviewed in respect of those arguments is unknown. In balancing these factors I concluded that the prejudice to HMRC outweighed that of the Applicant.” 25 29. She also held in relation to the Supply Appeal that although different considerations applied and the burden of proof in that appeal rests with the Appellant rather than HMRC, those considerations were not sufficient to overcome the impact of the lapse of time on the evidence and the public interest in the finality of litigation: see [76] of the Decision. 30 30. Finally, she concluded at [77]: “I considered the overriding objective to deal with cases fairly and justly and in doing so I have balanced the interests of both parties. The significant period of time which has elapsed, taken together with the lack of co-operation shown by Mr Kara to the liquidator from the outset and the absence of any meaningful 35 action to address the issue of the purported assignment or pursue the ceding of the conduct of the appeals all lead me to conclude that the prejudice to the Applicant in refusing this application does not outweigh those factors.”
“23. … I think the Upper Tribunal should exercise extreme caution in entertaining appeals on case management issues. Mr Gammie QC for HMRC drew my attention to the decision of the Court of Appeal in Walbrook Trustee v Fattal & Others [2008] 10 EWCA Civ 427, not as establishing any novel proposition but as containing in paragraph 33 the following convenient statement from the judgment of Lord Justice Lawrence Collins: “I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has 15 applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.” 20 24. I am clear that the principle applies with at least as great, if not greater, force in the tribunals’ jurisdiction as it does in the court system.”
“To justify the reception of fresh evidence or a new trial three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with 40 reasonable diligence for use at the trial; secondly, the evidence must be such that, if 15 given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
“….. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. 20 Upon an appeal from the judge’s grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships’ House, is not to exercise an independent discretion of its own. It must defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. 25 The function of the appellate court is initially one of review only. It may set aside the judge’s exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist, which although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be 30 demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it…..”
“ (i) The resiling party has the burden of establishing that the previously forgone point 15 should be raised. (ii) It will be harder to raise a point which has been expressly conceded. (iii) If taking the point would risk causing prejudice to the other party, in the sense that it might have been deprived of the opportunity of dealing with the case differently in court below, then it is unlikely that resiling will be allowed. The greater the risk, the 20 less likely it is that it will be allowed. (iv) There is a low threshold of risk for these purposes (… “any possibility”..). (v) The burden of establishing no risk is on the party who wishes to withdraw the concession, and the other party should have the benefit of any doubt in this area.”