Tax Tribunal dismisses third party application for disclosure of documents

In Cider of Sweden Ltd v HMRC and another [2022] UKFTT 00076 (TC), the First-tier Tribunal (FTT) dismissed an application by Ernst & Young LLP (EY) for disclosure of documents which related to appeal proceedings before the FTT between Cider of Sweden Ltd (CSL) and HMRC.

Background

EY applied for disclosure of various documents brought into existence in the context of existing appeal proceedings (the main proceedings) in the FTT between CSL and HMRC (the Application).

CSL and HMRC were engaged in litigation in both the High Court and the FTT, in respect of the same underlying issues. Broadly, CSL complained that the Excise Duty Post Duty Point Dilution regime gave rise to unlawful discrimination against it as an EU drinks manufacturer, as a result of which it sought both damages in the High Court under the Francovich principle and a refund of duty in the FTT. 

As a result of press coverage, EY became aware of the High Court proceedings and, having a number of its own clients interested in the same underlying issue, obtained copies of the claim form, particulars of claim, defence and HMRC’s response to a request for further information in relation to the defence. These documents were obtained pursuant to CPR 5.4C(1) (which enables a non-party to obtain a copy of such documents).

In the High Court particulars of claim, reference was made to the fact that CSL had notified an appeal to the FTT, claiming a repayment of excise duty. The reference number of the proceedings before the FTT was referred to.

EY then made the Application to the FTT, relying on the FTT's decision in Hastings Insurance Services Ltd & HMRC v KPMG LLP (Third Party) [2018] UKFTT 478 (TC), which confirmed that third parties interested in the outcome of appeal proceedings before the FTT are entitled to obtain a copy of any of the pleadings filed by the parties, including a copy of the parties' skeleton arguments. The Application explained that the purpose of receiving a copy of the requested documents was so that EY could review, consider and understand the parties’ arguments in order to potentially inform its clients’ arguments in their own respective (unrelated) disputes with HMRC.

The FTT wrote to CSL's representative (KPMG) and HMRC informing them that it was minded to grant the Application, but affording them the opportunity to object. Both HMRC and KPMG (on behalf of CSL) objected and directions were  issued for the matter to be decided at an oral hearing. At the time of the hearing of the Application, the main proceedings were still at an early stage. There had been no hearing of any type, nor was any listed or likely in the near future.

FTT decision

The Application was dismissed.

EY argued that the FTT should follow the approach adopted by it in Hastings, following the Upper Tribunal in Aria Technology Ltd v HMRC (Situation Publishing Ltd, third party) [2018] UKUT 0111 (TCC), approved and adopted by the FTT in Fastklean Ltd v HMRC (Keith Gordon, Third Party) [2020] UKFTT 0511 (TC).

This approach relied heavily on reference to CPR 5.4C(1), as being an expression of the principle of open justice. Part of that principle is to enable the wider public to see not only how claims are dealt with by the justice system but also why claims are made. EY argued that this meant that there was no need for there to be a hearing (either actual or imminent) before the entitlement to see the pleadings arose. It had demonstrated a legitimate interest in the documents it was seeking, being an interest in other contemplated related litigation. As it was the practice of the High Court to disclose pleadings to third parties on request, it would be inimical to open justice if the FTT did not do likewise. EY argued that, in line with CPR 5.4C, the burden lay on CSL and HMRC to show why access should be denied; the onus was not on it to show why access should be granted.

HMRC argued that the open justice principle did not apply at such an early stage in the proceedings and accordingly the FTT had no jurisdiction to provide access to the documents which EY sought. It argued that, even if this was wrong, EY had not demonstrated that it had a legitimate interest in the material it sought.

CSL supported the submissions made by HMRC and in addition made the following points. It submitted that the authorities showed that, for the principle of open justice to be engaged at all, there must be some kind of “judicial involvement” in the case (not necessarily a full hearing), and whilst the authorities considered in various contexts the necessary nature and extent of such involvement, the present case had not reached that point. CSL also argued that, even if it was accepted that the open justice principle applied at this stage of the proceedings, EY had failed to produce any evidence to show how public understanding of the judicial process would be advanced by providing it with access to the documents, nor was there any evidence as to the clients whose cases it was claimed would be assisted by such access.

The FTT concluded as follows:

1. a general right of access to pleadings in the FTT did not exist by reference to CPR 5.4C(1), either (a) by the application of that rule by analogy or by way of “guidance” to the FTT, or (b) because that rule expresses a general underlying right to such access applicable to the FTT, deriving from the principle of open justice. The FTT decided that its position did not conflict with what was said in Aria, as the FTT was careful in that case to limit its comments to the Upper Tribunal and did not consider the question of how those comments should apply to the FTT. The FTT noted that the context of Hastings was materially different from the present case and, in any event, the principles as subsequently clarified by the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, must take precedence;
2. EY had not shown that provision to it of the relevant documents at this early stage in the proceedings would advance any purpose of the principle of open justice; and
3. if the FTT was wrong in relation to both of the above issues, it would consider EY to have a legitimate interest in accessing the relevant documents. The FTT noted that simply wishing to understand the legal basis of the arguments being advanced (whether out of academic or journalistic interest, or in order to inform one’s conduct of a similar dispute) is a perfectly legitimate reason for seeking access to the documents, but would consider that the interests of CSL and HMRC in the confidentiality of the documents outweighed that interest at this stage of the proceedings and so would still refuse access to them. 

Comment

The Supreme Court in Cape confirmed that the reference to courts includes tribunals. However, there is no equivalent to CPR 5.4C in the FTT Rules (SI 2009/273).  Although FTT hearings are normally held in public and full written decisions are normally published online and are thus available to the general public, the documents submitted by the parties to the FTT are not publicly available and as CSL’s appeal to the FTT had not yet been listed for a hearing when EY made the Application and, unlike in the civil court system where there is a public register of claims made (which any member of the public can search for a fee), there is not a publicly available register of appeals notified to the FTT. Given the importance of open justice, there is an argument for the FTT to maintain a public register of proceedings before it and for the FTT Rules to be amended to include a Rule similar to CPR 5.4C.

This is an important issue (the decision records that HMRC itself considers this issue to be of importance, especially given the wider issues surrounding taxpayer confidentiality) and it will be interesting to see whether EY seeks permission to appeal to the Upper Tribunal.

The decision can be viewed here.