Judgment summary
This is a decision of the Upper Tribunal (Tax and Chancery Chamber) on a reconsideration, under Rule 22(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008, of an earlier refusal on the papers of permission to appeal (paras 1 to 3).
The underlying FTT Decision, released on 4 March 2026, had dismissed an application by Shane Matin to bar HMRC from further participation in an appeal concerning Personal Liability Notices ('PLNs') issued to him as sole company officer of APQ Developments Ltd, a company with corporation tax and construction industry scheme liabilities (paras 7 to 8).
The FTT had refused permission to appeal on all grounds on 9 April 2026, and the Judge had refused the renewed application on the papers in a decision released on 16 June 2026 (the 'UT Papers Decision') (paras 2 to 3). The Applicant, citing ill health, asked that the reconsideration also be dealt with on the papers, and the Judge was satisfied this could be done fairly and justly (paras 4 to 6).
The Judge considered five consolidated grounds of appeal and concluded that none disclosed an arguable material error of law in the UT Papers Decision, either individually or cumulatively, and refused the renewed application for permission to appeal (paras 104 to 107).
Background
The Applicant's Barring Application before the FTT was made under Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, relying on Rule 8(3)(c) (no reasonable prospect of successfully defending the proceedings) and Rule 8(3)(b) (failure to cooperate to the extent that the proceedings cannot be dealt with fairly and justly), both applied to respondents via Rule 8(7) (paras 9 to 12).
On 22 April 2025 HMRC applied for further and better particulars of the appeal and an extension to serve its Statement of Case; the Applicant opposed this. On 13 August 2025 HMRC sought further time to respond, and later that day the Applicant made the Barring Application (paras 21 to 23).
Judge Brooks directed on 11 September 2025 that HMRC, by 25 September 2025, either confirm objection to the Barring Application with reasons or confirm no objection. HMRC instead requested a copy of the application and additional time, having not received the application itself until 14 October 2025, despite requesting it on 12 and 25 September 2025 (paras 24 to 27).
The FTT found HMRC's conduct to be a reasonable response and not a procedural default or failure of cooperation (para 27). On 12 December 2025 the FTT directed a case-management hearing on the Barring Application, but following further representations from the Applicant about his health and ability to participate, the FTT decided on 9 January 2026 that the application could be determined on the papers, which occurred in the FTT Decision of 4 March 2026 (paras 28 to 31). The FTT also found it premature to conclude HMRC had no realistic prospect of defending the appeal, as HMRC had not yet served a Statement of Case (para 32).
Core dispute
The renewed application raised five grounds, each alleging that the UT Papers Decision failed properly to engage with an alleged error of law in the FTT Decision (para 33).
Ground 1 contended that the UT erred by treating HMRC's correspondence of 12 and 25 September 2025 as compliance with Judge Brooks' direction of 11 September 2025 (para 33).
Ground 2 contended that the UT failed to address the jurisdictional consequences of HMRC's alleged non-compliance, mischaracterising the matter as one of case management rather than jurisdiction (para 35).
Ground 3 concerned the relationship between the FTT's 9 January 2026 procedural decision to determine the Barring Application on the papers and the reasoning in the FTT Decision (para 36).
Ground 4 concerned alleged structural procedural unfairness, relying on Rule 2 of the FTT Rules, the principle of equality of arms, and Article 6 ECHR (para 37).
Ground 5 concerned alleged failure to engage with material evidence, including the SOLS Review, correspondence with HMRC's Chief Executive's Office, and later HMRC admissions, and challenged the adequacy of the FTT's reasons (para 38).
Court findings
On Ground 1, the Judge found the FTT was entitled to conclude, on the evidence, that HMRC had not received the Barring Application, had twice requested a copy, and had not defaulted or failed to cooperate; this amounted to disagreement with findings of fact rather than an arguable error of law (paras 40 to 44).
On Ground 2, the Judge held that BPP Holdings Ltd v HMRC [2017] UKSC 55 established that HMRC enjoys no privileged procedural status, but neither the FTT nor the UT Papers Decision had proceeded on that exempt basis; Denton v TH White Ltd [2014] EWCA Civ 906 and Martland v HMRC [2018] UKUT 178 (TCC) only assisted the Applicant if procedural default was established, which the FTT had rejected (paras 45 to 52).
On Ground 3, the Judge held that the 9 January 2026 procedural decision and the FTT Decision addressed different questions, and material relevant to case management need not be separately explained in relation to the merits determination; reliance on Porter v Magill [2001] UKHL 67 did not disclose an arguable basis for unfairness (paras 59 to 67).
On Ground 4, the Judge held that Rule 2 and the equality of arms principle require practical fairness reflecting the parties' actual circumstances, not identical treatment; because the FTT had found no procedural default by HMRC, the comparative fairness argument under Rule 2, equality of arms and Article 6 ECHR was materially weakened (paras 73 to 81).
On Ground 5, applying Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, the Judge found the FTT had adequately explained why the Rule 8(3)(b) and 8(3)(c) applications failed, without needing to address every document. Applying Edwards v Bairstow [1956] AC 14, the Judge found no finding unsupported by, or contrary to, the evidence, or one no reasonable tribunal could reach; the criticism was of the weight given to evidence, not a legal error (paras 87 to 102).
Outcome
The Judge concluded that, considered individually and cumulatively, the renewed grounds did not disclose a realistic prospect of establishing that the FTT erred in law, nor any other compelling reason to grant permission to appeal (para 106).
The renewed application for permission to appeal was refused (para 107).
Major issues / areas of contention
- Whether the UT erred by treating HMRC's correspondence of 12 and 25 September 2025 as compliance with Judge Brooks' direction of 11 September 2025 (Ground 1)
- Whether the UT failed to address jurisdictional consequences of HMRC's alleged non-compliance, wrongly treating it as case management (Ground 2)
- Whether the FTT's decision to determine the Barring Application on the papers was properly reconciled with the substantive FTT Decision (Ground 3)
- Whether structural procedural unfairness arose under Rule 2 of the FTT Rules, the equality of arms principle, and Article 6 ECHR (Ground 4)
- Whether the FTT gave adequate reasons and properly evaluated evidence, including the SOLS Review, Chief Executive's Office correspondence, and later HMRC admissions (Ground 5)
- Whether the FTT was correct to find that HMRC had no reasonable prospect of successfully defending the appeal under Rule 8(3)(c)
- Whether HMRC had failed to cooperate with the FTT to the extent required under Rule 8(3)(b)