Spc00662

APPEAL – Review – Non-appearance of Appellant – Appeal heard in Appellant’s absence – Application to set aside or vary the determination – Whether Appellant had good and sufficient reason for failing to attend – No new reasons given for non-attendance – Application dismissed – Special Commissioners (Jurisdiction and Procedure) Regs (SI 1994/1811) r.19(1)

THE SPECIAL COMMISSIONERS

	CHRISTOPHER JOHN DUNNE	Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

		

				Special Commissioner:  SIR STEPHEN OLIVER QC

Sitting in Chambers in London 

© CROWN COPYRIGHT 2008

DECISION ON APPELLANT’S APPLICATION

1.	On 19 December 2005 the Respondents (“HMRC”) amended Mr Christopher John Dunne’s return for the period to 5 April 2005.  Mr Dunne appealed on 10 January 2006 and the matter was received by the Special Commissioners on 15 June 2006. The appeal was heard on 8 October 2007 in the absence of Mr Dunne.  Reasons for dismissing the appeal were released on 11 December 2007.  

2.	On 16 December 2007 Mr Dunne wrote to the Special Commissioners applying for the decision to be set aside.  His grounds were that there should never have been a hearing in the first place because he had been an employee of Holme Ltd: hence the Lattice Pension scheme “were allowed to transfer my pension to the Holme Pension Scheme”.  The letter explained that his wife had been very ill.

3.	I accepted Mr Dunne’s letter of 19 December 2006 as an application under rule 19 of the Special Commissioners rules.  On 28 December 2007 I directed that Mr Dunne should lodge a statement setting out in full the reasons for his failure to appear at the hearing on 8 October and to support his statement with any documentation relating to the state of health of his wife.  Mr Dunne’s letter of explanation dated 13 January 2008 reads as follows:

“I asked on several occasions for the hearing to be postponed as due to my wife’s illness I had no time to deal with the Inland Revenue accusing me of some wrong-doing.

Further to the above I received no evidence from the Inland Revenue until 1 October 2007 and on 5 October 2007 at 8.30pm by special courier, this was insufficient time to seek legal advice of any kind, the Inland Revenue should have let me have their bundle at least six weeks prior to any hearing date.

Therefore these are my reasons for asking for the decision to be set aside.”

On 13 January 2008 Mr Dunne sent a doctor’s letter stating that the named person had undergone a successful operation in March 2007.

The events leading up to the hearing of 8 October 2007

4.	Following receipt of the matter by the Special Commissioners on 15 June 2006, the Special Commissioners issued standard directions to the parties.  HMRC proposed their own directions on 30 January 2007.  By 6 March 2007 it had become apparent to the Tribunal that Mr Dunne had not complied with the directions and had not suggested any alternative directions.  The Clerk to the Special Commissioners therefore wrote to Mr Dunne on 13 March 2007 and asked him for a date for a “non-compliance hearing”.  A non-compliance hearing was listed for 2 May 2007.  

5.	The Clerk to the Special Commissioners telephoned Mr Dunne in early April 2007.  Mr Dunne asked for the hearing to be vacated and for it to be re-listed in Manchester.  The hearing was duly relisted for hearing in Manchester on 2 May with arrangements for HMRC to be present via video link. 

6.	The Clerk to the Special Commissioners received a letter from Mr Dunne on 20 April 2007.  This explained the grounds of his appeal.  

7.	On 23 April 2007 Mr Dunne wrote to the Clerk to the Special Commissioners saying that he would not be attending the hearing on 2 May and stating that there were “no grounds for any such hearing”.  

8.	The Clerk to the Special Commissioners, by letter of 18 May 2007, suggested a hearing between 1 July and 30 September of 2007.  Mr Dunne was asked, on 14 June, for dates to avoid during that period.  He responded saying that his wife had recently undergone major surgery and that he would not be available to attend any hearing for the foreseeable future.  The Clerk to the Special Commissioners, on 28 June 2007, wrote to Mr Dunne inviting him to confirm if he wished to make a formal application to postpone the listing of the hearing and, if so, asking him when he expected to be able to attend a hearing.

9.	By letter to the Clerk to the Special Commissioners, received on 20 July 2007, Mr Dunne stated that he had been an employee of Holme Ltd which had entitled him to be a member of their pension scheme, which entitled him to transfer his Lattice Group pension into Holme Ltd pension scheme.  Mr Dunne stated in the letter that he hoped that explanation resolved the matter and that he could see no reason for any further correspondence.

10.	It appears from the file that the matter was then referred to a Special Commissioner who directed that the matter be set down for a substantive hearing during the period October to December 2007.  Mr Dunne was asked, by letter of 24 July 2007, to notify the Clerk to the Special Commissioners of his dates to avoid during that period.  There being no reply from Mr Dunne, the Clerk to the Special Commissioners wrote on 15 August 2007 stating that the appeal would take place on 8 October 2007. 

11.	It appears that no reply was received from Mr Dunne and on 14 September the Clerk to the Special Commissioners wrote to him enquiring whether he would attend the hearing and asking whether he wished to request a video link from the Manchester office.

12.	On 21 September 2007 Mr Dunne responded stating that he would not be able to attend as his wife was quite ill at the time.

13.	The Clerk to the Special Commissioners wrote to Mr Dunne on 25 September 2007 stating as follows:

“The Special Commissioner has seen and considered the contents of your letter and does not consent to a postponement of your hearing and it will proceed as scheduled on 8 October 2007.

If you wish to make a further application the Special Commissioner would require details about your wife’s current condition from her doctor.”

14.	Mr Dunne’s response was received by the Clerk to the Special Commissioners on 4 October 2007.  This stated that he had by then received witness statements (on 1 October 2007) together with a bundle of evidence.  He said in the letter that he needed more time than a couple of days to seek legal advice to respond to this evidence.  He would not, he said, be able to attend on 8 October and did not feel it unreasonable to ask for a postponement, “given that my wife’s illness has not allowed me to deal with this matter”.

15.	On 5 October 2007 the Clerk to the Special Commissioners wrote to Mr Dunne notifying him that the Special Commissioner had refused his request for a postponement of the hearing.  That letter expressed the view that Mr Dunne had had sufficient time to prepare his appeal, particularly as the notice of appeal had been lodged with the Special Commissioners in June 2006.  

16.	The decision of the Special Commissioner (Mr Michael Tildesley) released in December 2007 dealt at some length with his reasons for rejecting Mr Dunne’s application for postponement.

Conclusion

17.	Regulation 19(1) of the Special Commissioners (Jurisdiction and Procedure) Regulations (1994/1811) provides, so far as is relevant, as follows:

“(1)	If, on the application of a party of its own motion, a Tribunal is satisfied that –

(a)	…, or 
(b)	a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear or to be represented, or
(c)	…

the Tribunal may review and set aside or vary the decision in principle or final determination (or both of the decision in principle and the final determination).”

I have dealt with Mr Dunne’s application “on paper”, Regulation 19(1)(b) has evidently been installed in the Regulations to enable reconsideration of the decision giving in the absence of a party where there is good and sufficient reason for his absence.  Typically it would apply and enable reconsideration to take place where something unexpected and unavoidable has prevented the party from attending.  It was not, as I read it, designed to apply where the Special Commissioner, who heard the case, has already looked into the circumstances of the party’s absence and has concluded that it is right to go ahead.  

18.	Here the Special Commissioner (Mr Michael Tildesley) considered the circumstances of Mr Dunne’s absence.  He then gave a reasoned conclusion as to why the hearing should go ahead.  He had before him Mr Dunne’s letter to the Clerk to the Special Commissioners of 21 September, an e-mail from Mr Dunne of 2 October and a letter from Mr Dunne of the same date.  He observed in paragraph 9(2) of the Decision that Mr Dunne had had ample time to prepare his appeal for the reasons explained in that paragraph.

19.	Mr Dunne’s letter of 16 December 2007 contains nothing new.  In particular, it provides no specific reason why Mr Dunne could not actually get to the hearing.  Mr Dunne’s further letter of 13 January 2008 contained as an enclosure the doctor’s letter.  This again gives no indication as to the state of health of the person in question at the time of the hearing in October 2007.

20.	In essence, the reasons given by Mr Dunne for his absence, in support of his application for the Decision to be reviewed and set aside, are substantially the same as those reasons that were presented in writing to Mr Tildesley.  The reasons were, as I have already noted, taken into account by Mr Tildesley in reaching his decision to go ahead with the hearing in Mr Dunne’s absence.  

21.	It is not for me to review Mr Tildesley’s decision to go ahead and hear the appeal.  My sole authority is to look at the circumstances of Mr Dunne’s absence, being circumstances that were not available to the Special Commissioner at the time, and to decide whether Mr Dunne had good and sufficient reasons for failing to appear.  As I have already explained, Mr Dunne has advanced no further reasons. I am therefore unable to allow Mr Dunne’s application. I should add that the question whether the Special Commissioner’s decision to go ahead was a “reasonable” one lies within the “judicial review” function of the High Court and not with this Tribunal.

SIR STEPHEN OLIVER QC
SPECIAL COMMISSIONER

RELEASED: 7 February 2008

SC 3129/2006