Judgment summary
Mr Lyden applied to the Upper Tribunal (Tax and Chancery Chamber) for permission to appeal against a First-tier Tribunal (Tax Chamber) decision released on 13 February 2025 ("the Decision") (1).
The Decision had refused Mr Lyden's application to make a late appeal against closure notices which increased his income tax liability for two tax years (1). The FTT refused permission to appeal against the Decision on 12 June 2025 (1).
Mr Lyden renewed his application to the Upper Tribunal. Permission was refused on paper on 21 July 2026, and this decision follows an oral hearing on 25 August 2026, at which David Parker of Parkers Accountancy appeared for Mr Lyden (2).
The judge, applying section 11(1) of the Tribunals, Courts and Enforcement Act 2007, held that permission should only be granted where it is arguable, with a realistic prospect of success, that there is a material error of law in the Decision (3). Permission to appeal was refused on all four grounds advanced (14).
Background
The notice of appeal against the closure notices was filed more than four months late (4).
The reasons given for the delay were: the accountant's illness and inability to work for a lengthy period; Mr Lyden suffering a career-ending injury which affected his mental health, leading him to go to Australia for a lengthy period to recuperate with family; Mr Lyden's mental health limiting his capacity to deal with his tax affairs; and the accountant's work pressure on returning to work, and Mr Lyden's absence from the UK, meaning he did not contact Mr Lyden, which the accountant acknowledged he could have done more to prevent (4).
Applying the Martland criteria, the FTT accepted that the accountant's absence for health reasons would have constituted good grounds for delay, but noted his absence only began when the appeal was already two months late (5).
The FTT found that Mr Lyden's mental health and his absence in Australia were not good grounds for the delay, noting that HMRC had challenged the state of his health, no evidence was presented to substantiate it, and there was evidence he was able to deal with his agent during that period (6). The FTT also found his absence in Australia was not a barrier to communication with his accountant, and noted that a taxpayer cannot delegate entire responsibility for their tax affairs to their accountant, retaining some responsibility to ensure timely handling and follow-up (6).
The FTT gave no weight to HMRC's submission that the appeal was "doomed to fail" (7). Overall, the FTT held that Mr Lyden had not established a good reason for the delay and that it was not appropriate to permit a late appeal (8).
Core dispute
Mr Lyden sought permission to appeal the FTT's refusal to allow a late appeal, advancing four grounds: (1) that the FTT failed to conduct a holistic assessment of "good reasons" for delay and so erred in applying the Martland framework; (2) that the FTT gave insufficient weight to the prejudice suffered by Mr Lyden, rendering its exercise of discretion flawed; (3) that the FTT's scrutiny of the underlying merits was insufficient and its reasons inadequate; and (4) that the FTT disregarded relevant principles of contextual fairness (9).
Court findings
On grounds 1 and 2, the Upper Tribunal held that it is for the primary fact-finding tribunal to decide the weight to give to relevant factors in a multi-factorial evaluation, and an appellate tribunal should be slow to interfere unless irrelevant factors were considered or relevant factors ignored (10). Mr Parker was unable to identify any such error, and the FTT had expressly found that the prejudice to Mr Lyden weighed in favour of allowing the late appeal (10). No realistic prospect of success was found on either ground (10).
On the first element of ground 3, the Upper Tribunal noted the FTT had found neither that the appeal was "doomed to fail" nor that Mr Lyden's case was very strong, so the merits did not weigh strongly in either direction; there was no realistic prospect of success on this element (11).
On the second element of ground 3, concerning adequacy of reasons, the Upper Tribunal noted the FTT's decision extended to 36 paragraphs over five pages, setting out the applicable law, summarising submissions, and giving reasons based on the law and submissions (12). Applying the Senior President's Practice Direction on Reasons for Decisions of 4 June 2024, which states that reasons should be proportionate to the significance and complexity of the issues and should not be stated at greater length than necessary, the Upper Tribunal found the FTT's reasons met this standard and disclosed no error of law (12).
On ground 4, concerning the 30-day time limit for taxpayers to appeal closure notices or assessments as against HMRC not being subject to such strict time limits, the Upper Tribunal found this formed part of the statutory scheme for appeals and would not, of itself, be a factor to weigh in the Martland assessment (13).
Outcome
The Upper Tribunal found that there were no realistic prospects of success on any of the four grounds and refused permission to appeal (14).
Major issues / areas of contention
- Whether the FTT erred in law by failing to conduct a holistic assessment of "good reasons" for delay under the Martland framework
- Whether the FTT gave insufficient weight to the prejudice suffered by Mr Lyden in exercising its discretion
- Whether the FTT insufficiently scrutinised the merits of the underlying appeal and gave inadequate reasons for its decision
- Whether the FTT disregarded relevant principles of contextual fairness relating to differing time limits for taxpayers and HMRC