Judgment summary
The Upper Tribunal considered an application by Furlong Services Limited for an extension of time to seek permission to appeal a decision of the First-tier Tribunal (FTT) released on 25 July 2024. The FTT decision concerned an information notice issued by HMRC, confirming some aspects and varying others (1)-(2).
The FTT had refused permission to appeal on 23 September 2024 on the basis that there was no right of appeal, given that paragraph 32(5) Schedule 36 Finance Act 2008 makes such decisions final (4), (57). The Appellant then had until 11 November 2024 to apply to the Upper Tribunal for permission to appeal, but did not do so until 7 August 2025, a delay of some 9 months (5)-(6), (36).
Applying the three-stage test in Martland v HMRC, the Upper Tribunal Judge found the delay serious and significant, attributable to repeated errors by the Appellant's then solicitors, Rainer Hughes, in using the wrong form and misdirecting correspondence (36)-(49). The Judge also refused a late application to adjourn the oral hearing (14)-(34), and ultimately refused the Extension Application, meaning the application for permission to appeal was not admitted (59)-(60).
Background
The FTT heard an appeal against an information notice issued by HMRC and released its decision on 25 July 2024, confirming certain aspects and varying others. The FTT noted that, in accordance with paragraph 32(5) Schedule 36 Finance Act 2008, the decision was final (2).
The Appellant applied to the FTT for permission to appeal on 27 August 2024. The FTT refused permission on 23 September 2024, on the basis that there was no right of appeal. Due to an incorrect email address, this decision was not received until it was re-sent on 11 October 2024 (4).
Under Upper Tribunal Rule 21(3)(b), the Appellant had until 11 November 2024 to apply to the Upper Tribunal for permission to appeal. Instead, its solicitor sent an application using the wrong FTT form (T247) to the FTT on 22 October 2024, which did not comply with Rule 21 requirements (39)-(41). The FTT did not respond until 6 March 2025, explaining the error, but the Appellant's solicitor then sent the same wrong form to the Upper Tribunal (42)-(44). Following further correspondence and the FTT closing its file on 27 June 2025, the Appellant's solicitor finally submitted the correct Form FTC 1 to the Upper Tribunal on 7 August 2025 (45)-(47).
Core dispute
The central question was whether the Upper Tribunal should extend time under Rule 21(3)(b) to allow the Appellant to apply for permission to appeal the FTT's Decision, applying the three-stage test in Martland v HMRC (13), (35).
A subsidiary issue was whether there was in fact a right of appeal against the FTT's Decision at all, given that paragraph 32(5) Schedule 36 Finance Act 2008 states that a decision of the FTT on an appeal against an information notice is 'final' (57)-(58).
Shortly before the hearing, the Appellant, through newly instructed solicitors GSP Law Limited, also applied to adjourn the oral hearing to allow its director to explain his lack of knowledge of the earlier defaults (14)-(28).
Court findings
The Upper Tribunal Judge refused the application to adjourn the oral hearing, finding it too late in the proceedings for the Appellant to adduce further evidence explaining the delay, and that HMRC and the administration of justice would be prejudiced by vacating the hearing (28)-(34).
Applying the Martland three-stage test, the Judge found the delay of some 9 months (or approximately 5 months of culpable delay after allowing for the FTT's own delay in responding) to be serious and significant (36), (50). The reason for the delay was a series of errors by the Appellant's solicitors, Rainer Hughes, including use of the wrong form and failure to follow the FTT's guidance, for which no adequate explanation was offered (48)-(49).
The Judge held that, following Katib, failures by a litigant's solicitor should generally be treated as failures by the litigant, though he took into account that the Appellant's director, Mr Curtis, was unaware of the defaults until 8 April 2026 (29)-(31), (53). The Judge found there was real prejudice to HMRC and to the administration of justice from the delay, but that compliance with the information notice as varied would not cause the Appellant serious prejudice (54)-(55). The Judge was not satisfied there were strong grounds that a right of appeal existed, given paragraph 32(5) Schedule 36 Finance Act 2008, though he treated the point as arguable (57)-(58).
Outcome
The Upper Tribunal refused the Extension Application (60).
As a result, under Rule 21(6), the Upper Tribunal was required not to admit the Appellant's application for permission to appeal (60).
Major issues / areas of contention
- Whether time should be extended under Upper Tribunal Rule 21(3)(b) for a late application for permission to appeal a First-tier Tribunal decision.
- Application of the three-stage Martland test to assess the length of, reasons for, and circumstances surrounding the delay.
- Whether paragraph 32(5) Schedule 36 Finance Act 2008 operates as a statutory bar preventing any right of appeal from the FTT's decision on the information notice.
- Whether failures by the Appellant's solicitors should be attributed to the Appellant itself, applying the principle in HMRC v Katib.
- Whether the hearing of the Extension Application should be adjourned to allow further evidence from the Appellant's director.
- Assessment of prejudice to HMRC, to the Appellant, and to the administration of justice in granting or refusing the extension.