Judgment summary
This decision concerns an application by Jonathan Gwynne to reinstate his appeal, which had been automatically struck out on 25 November 2025 for breach of case management directions [4], [5], [33].
The underlying appeal concerned a personal liability notice issued to the appellant in respect of VAT penalties imposed upon Endeavour Strategic Developments LLP for submitting inaccurate VAT returns [1]. The appellant appealed against the notice in May 2022 [2].
Tribunal Judge Nigel Popplewell heard the reinstatement application on 26 June 2026. For the reasons given, he rejected the application and decided not to reinstate the appeal [6], [68].
Background
Following a case management hearing on 7 March 2025, the judge issued case management directions released to the parties on 13 March 2025 (the Directions) [3], [16]. The hearing had been set down and notified to the parties on 11 December 2024, and an application to postpone it was made on 27 February 2025 on medical grounds, supported by letters from the NHS (the medical evidence) [16].
Directions 1 and 2 dealt with correspondence involving the Crown Prosecution Service. Direction 1 required the appellant to write to HMRC to ascertain whether they intended to refer the outcome of the appeal to the CPS, and Direction 2 required HMRC to respond on or before 11 April 2025 [17].
Direction 3 required the appellant to deliver a list of documents on which he intended to rely and provide copies to HMRC within 60 days of 11 April 2025. Direction 4 required the appellant to provide witness statements on the same date [18], [19]. Direction 6 was an unless order stating that if the appellant failed to comply in full with Directions 1, 3 and 4, the proceedings would be struck out [20].
The appellant complied with Direction 1, and HMRC responded by letter dated 11 April 2025 [22]. The appellant did not provide a list of documents, the documents, or witness statements within 60 days of 11 April 2025 [23]. On 11 June 2025 the appellant applied for an extension of time to file witness statements, explaining it had been impossible to comply and that he was suffering extreme stress and anxiety [24]. The agent also emailed the tribunal on 11 June 2025 confirming that due to the appellant's medical situation it had not been able to take instructions to draft the witness statements [25].
On 3 September 2025 the tribunal wrote to the parties explaining that the appellant was only in breach if he had failed to submit documents and witness statements on which he intended to rely, and that should he now submit them in compliance with Directions 3 and 4 the proceedings would be struck out. The letter amended the date for compliance with the direction requiring listing information to a date within 30 days [27].
The appellant applied for a stay on 9 October 2025 and submitted an application to amend on 23 October 2025 [28], [29]. On 11 November 2025 the tribunal confirmed that Judge Dean had refused the application and granted 14 days for the appellant to comply with all outstanding directions or confirm compliance, with failure leading to strike out [29].
On 25 November 2025 the agent sent an index and bundles of discovery [30]. On 12 December 2025 the appellant provided his listing information but did not complete and return the video hearing attendance form [32]. In an email dated 30 December 2025 the tribunal indicated that Judge Brown had confirmed the appeal was automatically struck out on 25 November 2025 [33]. The appellant applied to reinstate on 26 January 2026 [34].
Core dispute
The dispute was whether the Tribunal should exercise its discretion to reinstate the appeal that had been automatically struck out for breach of unless orders [5], [37].
The appellant argued that HMRC's letter of 11 April 2025 did not enable the agent to advise what evidence should be provided, that compliance within the 60 day period was not possible, that the appellant was ill and unable to give instructions, that there was ambiguity in Judge Dean's directions of 11 November 2025, that the listing information was provided only a fortnight late, that there was no prejudice to HMRC, and that any failings were those of the agent rather than the appellant [35].
HMRC argued that compliance with Directions 3 and 4 was not conditional on the terms of HMRC's response, that the appellant had been represented by lawyers throughout, that there was no ambiguity in Judge Dean's directions or the tribunal's 3 September 2025 letter, that the breaches were serious and significant, that no good reasons were given, and that reinstatement would prejudice HMRC and be contrary to the efficient administration of justice [36].
Court findings
The judge stated it was for the appellant to demonstrate that discretion should be exercised to reinstate the appeal [37]. He set out the approach of considering the seriousness and significance of the breaches, the reasons for them, and then a balancing exercise, attaching considerable importance to the need for litigation to be conducted efficiently and to enforce compliance with rules and orders [38].
The judge held that a failure to comply with an unless order, or two in the circumstances, was serious and significant, noting the orders expressly warned of the consequences of failure [39]. He took into account that Endeavour Strategic Developments LLP, of which the appellant was a member, had previously failed to comply with unless orders resulting in that appeal being struck out [40]. He also noted the appellant had not strictly complied with Judge Dean's order because the video hearing attendance form had not been completed and submitted [41].
On the reasons, the judge accepted the agent was finding it difficult to obtain instructions during the 60 day period because of the appellant's medical condition, though he noted the medical evidence did not make clear why instructions could not be obtained and that the appellant was seemingly competent to explain his position in his email of 11 June 2025 [45].
He did not accept that any ambiguity generated by HMRC's letter of 11 April 2025 carried much weight [46]. He found that if the agent was concerned that HMRC's response was inadequate, it should have clarified the position well before the expiry of the 60 day period, and its failure to do so was a primary reason the time limit was missed [49]. He found the agent's 11 June 2025 email referred only to the appellant's health condition and made no mention of any inability to advise arising from HMRC's response [51].
Applying the principle in Katib, the judge held that failings by an adviser are generally treated as failures by the litigant, and so the agent's failings were attributed to the appellant [53], [54].
The judge attached little weight to the submission that Judge Dean's 11 November 2025 directions were ambiguous, finding no ambiguity and that clarification could have been sought [55], [57], [58]. He found no explanation had been given for the failure to provide the listing information within the 14 day period [60], [61].
Applying Chappell, the judge held he should not take the merits of the appellant's case into account unless it was unanswerable, and he was not provided with cogent evidence that it was [64]. On prejudice, he acknowledged rejecting the application meant the appellant could not challenge the personal liability notice and would be liable to a significant financial penalty, but held, following Katib, that this was a common feature and a consequence of the failure to comply with directions, and did not give it sufficient weight to overcome the seriousness of the breaches [65].
Outcome
The judge concluded that the reasons given for the failures were not sufficient to outweigh the seriousness and significance of the breaches, and that particular importance must be paid, as a matter of law, to the principle that directions of the tribunal should be complied with [66].
In accordance with the overriding objective, the judge held it was fair and just to dismiss the application [67]. He dismissed the application [68].
Major issues / areas of contention
- Whether the Tribunal should exercise its discretion to reinstate an appeal automatically struck out for breach of unless orders.
- Whether the breaches of the unless orders were serious and significant.
- Whether the appellant's medical condition and inability to give instructions were good reasons for non-compliance.
- Whether ambiguity in HMRC's response of 11 April 2025 or in Judge Dean's directions of 11 November 2025 excused non-compliance.
- Whether failings by the appellant's agent should be attributed to the appellant.
- The weight to be given to the prejudice arising from the appellant being unable to challenge the personal liability notice.
- The balance between prejudice to the parties and the principle that directions and time limits should be respected.