The recent case of Wyatt Paul v HMRC [2022] UKUT 116 (TCC) confirmed: permission by a party must be sought from the Upper Tribunal (UT) to argue a new point which was not argued before the First-Tier Tribunal (FTT). The UT refused HMRC permission to argue a point on estoppel by convention on the basis that it was a new argument of a fact-sensitive nature.
Case Background
Wyatt Paul (the Appellant) appealed against the decision made by the FTT in Wyatt Paul v HMRC [2020] UKFTT 415 (TC). The decision related to the availability and timing of US tax relief to Lloyd’s underwriters, including whether HMRC’s enquiry process was invalid because several provisions within the Tax Management Act 1970 had not been complied with.
The appeal was dismissed by the FTT. The Appellant then appealed to the UT.
The Appellant’s ground of appeal concerned whether a notice of enquiry which had not been posted to the Appellant’s address in accordance with s115 TMA 1970 was properly served and whether that notice was ‘received’.
HMRC pursued a new argument that the Appellant was estopped by convention from denying that a valid enquiry had been opened, following the Supreme Court’s decision in Tinkler v HMRC [2021] UKSC 39.
Decision
The UT denied HMRC permission to raise a point on the issue of estoppel due to the fact that no specific evidence, nor findings of facts were made on the issue before the FTT.
Relevant principles in Singh v Dass [2019] EWCA Civ 360 regarding the admission of new points in appeal were relied upon by the Appellant. The UT agreed and confirmed any party, whether it be the Appellant or Respondent, must seek the UT’s permission to argue a new point which was not brought before the FTT.
The Purpose of Appeals
The appeal system exists to enable parties to appeal against a decision in a higher court. On appeal, the same facts and findings are reviewed and it is not common for new points of fact to be raised. The case of Sivier v Riley [2021] EWCA Civ 713 confirms the need to keep new points out of appeals stating that it is often procedurally unfair to raise fresh arguments and the purpose of appeals are to review cases, not to re-hear them.
Arguments should be presented at the court of first instance and in the case of Wyatt Paul v HMRC, the UT noted HMRC had the opportunity to argue the point of estoppel before the FTT but failed to do so. If HMRC had done so at the first instance, the hearing would have been conducted differently (with regards to the evidence).
Case highlights
The decision in this case highlights the importance, to parties in litigation, of raising all relevant arguments at the court of first instance and the first appeal stage. The UT, along with higher appeal courts, will not easily allow new arguments to be presented, especially those involving findings of facts.
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