Hastings Insurance Services Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 15 August 2018 |
| Neutral Citation | [2018] UKFTT 478 (TC) |
| Date | 15 August 2018 |
| Court | First Tier Tribunal (Tax Chamber) |
[2018] UKFTT 0478 (TC)
Judge Greg Sinfield
Procedure – Application by third party for access to statement of case and skeletons after decision issued – Granted.
[1] KPMG LLP (“KPMG”) applied to the First-tier Tribunal for copies of HMRC's statement of case and both parties' skeleton arguments in this appeal. The appeal was heard in public over eight days in November 2016 and the Tribunal's decision was issued on 19 January 2018 with neutral citation [2018] TC 06306. KPMG was not a party to the appeal nor did it represent any party. KPMG seeks the documents requested in order better to understand HMRC's arguments in the appeal which, KPMG state, are relevant to their arguments in a different case in which they are instructed. In support of their application for access to the documents, KPMG rely on my decision in the Upper Tribunal in Aria Technology Ltd v R & C Commrs [2018] BTC 511 (“Aria Technology”).
[2] The Tribunal wrote to the parties in the appeal to give them the opportunity to make representations. Both the Appellant and the Respondents (“HMRC”) made submissions objecting to the documents requested being made available to KPMG. Having considered the objections, which I discuss below, I have decided that KMPG should be allowed to inspect the documents.
[3] In the civil courts, rule 5.4C of the Civil Procedure Rules (“CPR”) provides that a person who is not a party to civil proceedings may obtain certain documents from the records of the court as of right and other documents with the permission of the court. In this Tribunal, the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“FTT Rules”) make no provision for granting a non-party access to documents. Accordingly, the First-tier Tribunal can only allow a non-party to have access to documents if it has an inherent jurisdiction to do so.
[4] The inherent jurisdiction of a court or tribunal to allow a member of the public to have access to and inspect documents relating to proceedings in that court or tribunal is founded on the fundamental constitutional principle of open justice. Although it is a principle of common law, the principle of open justice applies to the tribunals, which were created by statute, as much as to the courts. This is clear from R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2013] QB 618 (“Guardian News”), in which Toulson LJ, with whom the other members of the Court of Appeal agreed, stated at [69] and [70]:
[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.
[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there …
[5] In Aria Technology Ltd v R & C Commrs [2018] BTC 511 (“Aria Technology”), I held that it was clear from [69] and [70] of Guardian News that the Upper Tribunal has an inherent jurisdiction to determine how the principle of open justice should be applied and to grant a non-party access to documents relating to proceedings in accordance with that principle. Aria Technology concerned an application to the Upper Tribunal but it is clear that, as a tribunal exercising the judicial power of the state, the same requirements of open justice apply to the First-tier Tribunal. It is for the First-tier Tribunal to determine how the principle of open justice should be applied, subject to any legislative provisions and the supervision of the Upper Tribunal and appellate courts. Accordingly, the First-tier Tribunal has an inherent jurisdiction to determine how the principle of open justice should be applied in relation to any proceedings in the Tribunal.
[6] The FTT Rules do not expressly allow the First-tier Tribunal to allow a non-party to inspect or have access to documents relating to proceedings. There are, however, two rules that may be relevant to the question of whether the Tribunal has an inherent jurisdiction to allow non-parties to have access to documents relating to proceedings. The first is rule 14 of the FTT Rules which is headed “Use of documents and information” and provides:
The Tribunal may make an order prohibiting the disclosure or publication of–
- specified documents or information relating to the proceedings; or
- any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.
[7] Nothing in rule 14 suggests the existence of a general rule that documents or information relating to proceedings cannot be disclosed. On the contrary, I consider that rule 14 indicates that, absent an order prohibiting disclosure and subject to any other statutory restriction, documents or information relating to proceedings may be disclosed on a limited basis or published more widely . Further, disclosure of documents or information relating to the proceedings may be made by the Tribunal, the parties to the proceedings or third parties, such as journalists.
[8] Rule 32(1) of the FTT Rules is also relevant...
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