Bramley Ferry Supplies Ltd v Revenue and Customs Commissioners
| Jurisdiction | UK Non-devolved |
| Judgment Date | 07 June 2017 |
| Neutral Citation | [2017] UKUT 214 (TCC) |
| Date | 07 June 2017 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
[2017] UKUT 0214 (TCC)
Upper Tribunal (Tax and Chancery Chamber)
Judge Colin Bishopp, Judge Ashley Greenbank
David Bedenham, counsel, instructed by Rainer Hughes, solicitors, appeared for the appellant
Simon Pritchard, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, appeared for the respondents
Procedure – Application to admit new ground of appeal – Application to introduce new evidence – Applications refused.
[1] The applications before us arise in the context of an appeal by the Appellant, Bramley Ferry Supplies Limited, against the decision of the First-tier Tribunal (“FTT”) [2016] TC 05132 (Judge Brooks), which was released on 11 May 2016 (the “FTT Decision”).
[2] In that decision, Judge Brooks decided that the Appellant's appeal had been made out of time and refused its application for a direction that the appeal should be admitted late.
[3] The Appellant applied for permission to appeal against the FTT Decision. The application for permission to appeal set out two grounds of appeal.
- The first ground was that the FTT made an error of law when holding, on the basis of the decision of the Court of Appeal in R (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, that the potential merits of the appeal should not be taken into account when considering the application to admit an appeal out of time.
- The second ground was that, when considering that application, the FTT made an error law in failing to take proper account of the fact that the delay in making the appeal was due to the failure of the Appellant's legal advisers and not of the Appellant itself.
[4] The FTT refused permission to appeal. However, following an application to the Upper Tribunal, permission to appeal was granted.
[5] Prior to the hearing, the parties requested a stay of proceedings to await the decision of the Supreme Court on an appeal from the decision of the Court of Appeal in the case of BPP Holdings Ltd v R & C Commrs [2016] BVC 9. The stay was granted.
[6] By a notice dated 12 April 2017, the Appellant made two applications to the Tribunal:
- for permission to appeal on an additional ground, namely that the FTT's conclusion that the appeal had been filed out of time was against the weight of the evidence such as to constitute an error of law as per Edwards (HMIT) v Bairstow (1955) 36 TC 207; and
- for permission to introduce new evidence in the form of a witness statement of Ms Natalie Wallis, a paralegal employed by the Appellant's solicitors, dated 12 April 2017.
[7] We announced at the conclusion of the hearing that we would refuse both applications. Our reasons are set out below.
[8] Mr David Bedenham made the following submissions on behalf of the Appellant:
- The existing grounds of appeal related to the judge's refusal to permit a late appeal and did not challenge the finding of fact that the appeal was made out of time. In fact, the balance of the evidence was that the appeal was made within the 30 day time limit. This could be seen from the findings of fact in the FTT Decision: the notice of appeal was prepared on or before 1 May 2015; the grounds of appeal were settled by counsel on 27 April 2015; the email sending or, at least, apparently sending the notice of appeal to the Tribunal was dated 1 May 2015 and bore the same solicitors' reference as the notice of appeal (see FTT Decision [6] and [8]). The FTT disregarded that evidence in finding that the email was not sent to Tribunal before 24 December 2015. That evidence and the evidence of Ms Wallis (the subject of the second application) was inconsistent with and contrary to the FTT's conclusion such as to constitute an error of law in accordance with the principles set out in the decision of the House of Lords in Edwards (HMIT) v Bairstow (1955) 36 TC 207.
- Although the additional ground had been advanced at a late stage in the proceedings, it was in the interests of justice to permit the application. The Appellant traded in duty suspended alcohol. The licence granted to it in accordance with the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (its WOWGR licence) was fundamental to its business and the revocation of that licence, the subject matter of the intended appeal, was of critical importance...
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