ANDREW HOWARD PARNHAM & MARK WILD v THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS [2023] UKUT 00285 (TCC)
| Jurisdiction | UK Non-devolved |
| Judge | JUDGE SWAMI RAGHAVAN,JUDGE GUY BRANNAN |
| Subject Matter | 29 November 2023 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Published date | 29 November 2023 |
Neutral Citation: [2023] UKUT 00285 (TCC) Case Number: UT/2021/000090
UT/2021/000091
UPPER TRIBUNAL
(Tax and Chancery Chamber) By remote video hearing
EXCISE DUTIES –assessment on road hauliers for joint and several liability in relation to
excise duty on duty suspended loads in 2006 – preliminary issues hearing before FTT – whether
FTT erred in not indefinitely staying proceedings or not barring HMRC in circumstances
where both parties agreed fair hearing not possible due to passage of time – no – cross-appeal
by HMRC - whether FTT erred in refusing HMRC’s strike out application – no –the issue
raised by the strike-out (whether findings UT had made in 2016 in relation to the same disputed
journeys were determinative) had been previously determined against HMRC in previous FTT
proceedings – appeal and cross-appeal dismissed
Heard on: 4 October 2023
Judgment date: 28 November 2023
Before
JUDGE SWAMI RAGHAVAN
JUDGE GUY BRANNAN
Between
ANDREW HOWARD PARNHAM
MARK WILD Appellants/Respondents
and
THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS
Respondents/Appellant
Representation:
For the Appellants: Ian Bridge, Counsel, instructed by Keystone Law
For the Respondents: Isabel McArdle, Counsel, instructed by the General Counsel and
Solicitor to His Majesty’s Revenue and Customs
1
DECISION
INTRODUCTION
1. The appellants are road hauliers who were made liable to joint and several liability excise
duty assessments based on HMRC’s view that an irregularity arose in the haulier’s transport of
duty suspended spirits contracted to be delivered from the UK to an Aldi warehouse in
Belgium. Mr Parnham was assessed for duty of £484,206. Mr Wild was assessed for
£1,302,036. This is an appeal against a decision of the FTT (“the 2020 FTT”) following a
hearing in 2020 published as Mark Wild (Trading as Mark Wild Haulage) and Andrew Parham
(trading A H Parnham Transport v HMRC [2021] UKFTT 34 (TC) (“the 2020 FTT Decision”)
which dealt with various preliminary issues in Mr Parnham’s and Mr Wild’s appeals.
2. The substantive proceedings turn on a single factual issue of whether the consignments
of spirits contracted to be delivered to the Aldi Warehouse in Belgium in 2006 by the appellants
were delivered there or not. Along with other driver/hauliers, the appellant hauliers were
subcontracted to undertake the deliveries by the main haulier contractor SDM European
Transport Ltd (“SDM”) on whom excise duty assessments (£6.3m) had also been imposed in
SDM’s capacity as guarantor of the deliveries under the relevant legislation. Mr Parnham’s and
Mr Wild’s appeals were stayed behind SDM’s appeal however SDM’s appeal was not finally
determined until 2016. Although SDM’s initial hearing took place before the FTT in 2010 that
decision was appealed to Upper Tribunal in 2013 following which it was remitted back to a
different FTT panel. That subsequent decision of the FTT in 2014 was then appealed to the
Upper Tribunal. SDM’s appeal was not finally determined until the Upper Tribunal remade
that 2014 FTT decision in 2015. Delays then occurred in getting the appellants’ stayed appeals
back on foot. In 2018 HMRC sought, unsuccessfully, to strike out Mr Parnham’s and Mr Wild’s
appeals as lacking a reasonable prospect of success given the findings in the SDM hearing,
however the 2018 FTT (Judge Poole) considered those findings in respect of SDM’s appeal
did not determine the appellants’ appeals.
3. The appeal now before us is against the 2020 FTT decision which made determinations
on various preliminary issues. In particular, it refused the appellants’ application that HMRC
should be barred from further participating (the FTT was not persuaded HMRC was at fault).
The FTT also refused HMRC’s strike out application (which had argued it would be an abuse
of process for the appellants argue the same factual issue given that had already been
determined in SDM’s appeal). This was on the basis that the FTT considered the implication
of the factual findings HMRC sought entailed dishonesty on the part of the appellants (that
their evidence was untruthful and that they were complicit in a diversion fraud), and that
fairness required that allegation was put to the appellants. The findings in SDM’s appeal were
not determinative. The result of both those refusals by the 2020 FTT was that the substantive
hearing would need to proceed to a substantive hearing before the FTT.
4. The appellants, with the permission of the Upper Tribunal, and HMRC, with the
permission of the FTT, now appeal the 2020 FTT’s decisions refusing their respective barring
and strike out applications. (Although the Upper Tribunal hearing had been listed for
September 2022 that was postponed due to the period of national mourning.)
5. The appellants’ case, in essence, is that in circumstances where, as here, both parties were
agreed a fair hearing was not possible (HMRC having indicated a fair hearing was not possible
in 2019 prior to the preliminary issue hearing), the FTT should have barred HMRC from
participating, summarily allowing the appeals, or else stayed the proceedings indefinitely.
HMRC’s cross-appeal is that the FTT was wrong not to strike out the case arguing the FTT
was wrong to assume that HMRC’s case entailed allegations of dishonesty.
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