- Discouraging parties from rearguing a point of law at first instance to persuade a second judge to take a different view on the same arguments

"[113] In the context of Covid-19 business interruption insurance cases, there is an obvious need for coherence, certainty and cost-effective use of resources. There are now well over a hundred claims which have been issued in the Commercial Court, and which are being managed in a Covid-19 BI sub-list. The Commercial Court, and indeed other courts, have taken steps to expedite hearings, so that important points of principle can be decided. This was the case, for example, in the FCA test case proceedings as well as in Corbin & King and more recently in London International Exhibition Centre. As a result of the importance of points raised affecting the market as a whole, judges in the Commercial Court have been reasonably generous in granting permission to appeal. It is inimical to the efficient conduct of the Covid-19 BI cases if each point decided at first instance is then to be reargued at first instance, in order to attempt to persuade a second Commercial Court judge to take a different view to the first. Clearly that is a permissible exercise where a party is able realistically to contend that there is a clear error on the part of the first judge. However, it is not a useful or permissible exercise where a party is really doing little or no more than seeking to repeat, before a second judge, arguments which were rejected by the first judge. In the latter case, parties should recognise  when a particular point is not, realistically, open at first instance and can only properly be pursued, if at all, on appeal." (Gatwick Investments Limited v. Liberty Mutual Insurance Europe SE [2024] EWHC 124 (Comm), Jacobs J)

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- Judicial criticism of citation of first-instance cases involving no issue of principle

"[24] As we have said, we were referred to several further decisions of the (predecessor) Tribunal at first instance, which were the application of principle to the facts, by HMRC. These were Anwar [1994] Lexis Citation 1136, Customs and Excise Commissioners v Rosner [1994] BVC 31 and The Plessey Company Ltd [1996] BVC 2074 ('Plessey'). All (notwithstanding the date of the report in Plessey which was a decision from 1994) pre-date the learning in BLP onwards. Whilst of interest, we derive no assistance from them.

[25] It has always been the case, absent a necessary reason to the contrary, the Tribunal will likely to be only assisted by citation of cases involving principle. The inevitable presence in a bundle and reference in pleadings to a multiplicity of first instance decisions involves additional work for everyone for no gain. They invariably increase the length of any hearing if they are referred to. And if not referred to it simply emphasises their lack of utility. They can also distract from the issues in the individual case before the Tribunal.

[26] In R v Erskine [2010] 1 WLR 183 Lord Judge CJ said in the context of criminal appeals (at [75]) which we see no reason to not equally apply to hearings before the Tribunal given the terms of the overriding objective:

... adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it." (Visual Investments International Limited v. HMRC [2024] UKFTT 843 (TC), Judge Rudolf KC)

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UPPER TRIBUNAL
 

- Other UT decisions not binding but to be followed unless convinced/satisfied wrong

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"[9] So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, para 59. I would have thought that Circuit Judges should adopt much the same approach to decisions of other Circuit Judges." (Willers v. Joyce (Re: Gubay (deceased) No 2) [2016] UKSC 44)

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"I do, however, question whether the concept of "per incuriam" is a helpful one to deploy in the present case, where as a matter of precedent the decision in Zaman was not binding on the UT, although as they rightly recognised at [114] they should normally follow a decision of an earlier UT "unless we are satisfied that the earlier decision is wrong". The UT were so satisfied and decided not to follow Zaman, as they were fully entitled to do. But there was no need to stigmatise the earlier decision as having been reached per incuriam, which is a stringent doctrine normally invoked to justify a departure from the principle of stare decisis. There is a good deal of case law on the subject to which we were not referred, so I prefer to say no more about it." (HMRC v. Sintra Global Ltd [2025] EWCA Civ 1661, Henderson LJ)

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“there is no rule of stare decisis between tribunals of co-ordinate jurisdiction. Rightly it [departed from an earlier Tribunal] only when convinced the earlier decision was wrong – for broadly tribunals should strive to achieve consistency amongst themselves. But once so convinced it was its duty to apply the law as it considered it to be.” (Procter & Gamble UK v. HMRC [2009] STC 1990, §43).

"[97] Accordingly, I am not strictly bound by the decision of HHJ Bird in Tecnimont. But I should (and would) follow it for reasons of judicial comity unless convinced it was wrong. Unfortunately, I am so convinced, and I do decline to follow it, preferring my own analysis set out above. On my analysis, looking simply at the elements of enrichment and “at the expense of”, there is (at least) a real prospect of success within the meaning of CPR rule 24.3. In my judgment there ought to be a resolution of the claim only after a full trial and the complete facts are known." (Terna Energy Trading doo v. Revolut Ltd [2024] EWHC 1419 (Comm) HHJ Paul Matthews)

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“It is common ground that the approach to be adopted in these circumstances, as a matter of judicial comity, is that I should follow the judgment of another judge of coordinate jurisdiction, which extends in this case to Sales J sitting in the UT exercising a judicial review jurisdiction, and that I should only depart from his judgment if I am convinced that it is wrong.” (R (oao Rowe) v. HMRC [2015] EWHC 2293 (Admin), §83).

“The Upper Tribunal is not bound by decisions of the High Court, as:
(a) the intention of Parliament, in enacting the Tribunals Courts and Enforcement Act 2007…and constituting the Upper Tribunal as a court of superior record makes it clear that Parliament did not intend the Upper Tribunal to be bound by the High Court as a matter of stare decisis;
(b) as a matter of principle, the need for predictability and consistency of outcome are not offended;
(c) there is a substantial line of authority that Tribunals which are constituted as superior courts of record are free to depart from High Court decisions, which line of authority has not been disturbed…
…the Upper Tribunal may depart from a decision of the High Court, if the Upper Tribunal is “convinced” (using the language at paragraph 40 of RB) or “satisfied” (using the language at paragraph 47 of RB) “…that [the High Court decision] is wrong”. We do not consider that there is any difference between “convinced” and “satisfied” in this context.” (Gilchrist v. HMRC [2014] UKUT 169 (TCC), §§85(ii)…94, David Richards J and Judge Ghosh).

“As to the latter, we are not so bound, although we should depart from a decision of the High Court only in circumstances where another High Court judge would properly be able to do so. Thus, we would be able to depart from Mann J’s conclusion only if we thought it was plainly wrong or if we considered ourselves bound by authority that would have bound Mann J. This is not an issue where the fact that this tribunal is a specialised tribunal would affect the propriety of our departing from Mann J’s judgment.” (Khawaja v. HMRC [2013] UKUT 353 (TCC), §27, Judges Berner and Herrington).

“…it seems to us equally clear that where the Tribunal is exercising a jurisdiction formerly exercised by the High Court, it need not regard itself as formally bound by the decisions of the High Court. Subject to one qualification [see below], we think the position should be the same as with the High Court as dealing with decisions of co-ordinate jurisdiction: ‘That you will follow the decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity…’ ” (Secretary of State for Justice v. RB [2010] UKUT 454, §40).

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- Is Tribunal prepared to say other decision is "plainly" wrong?

"[383] Our starting point, therefore, is that we should not depart from Zeman, even if we would have reached a different conclusion ourselves, unless we are convinced that it was wrong.  Just as the UT in Suterwalla regarded "convinced" and "satisfied" as effectively the same test, we regard both of those as equating with whether we regard Zeman as "plainly" wrong.  We can only be "convinced" that Zeman is wrong if we are so sure of that that we are prepared to say that it is "plainly" wrong." (WM Morrison Supermarkets Ltd v. HMRC [2025] UKFTT 1542 (TC), Judge Baldwin)

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- Conflicting UT decisions: follow later decision that expressly considers earlier decision

"[93] We find ourselves unable to conclude that either decision is clearly wrong or, conversely, clearly right. We note that HMRC are contemplating an appeal so it is possible the conflict may be resolved at a higher level, but we cannot delay this decision on that account. In the circumstances, we consider that we should follow Medpro UT on the grounds that it is the more recent decision and expressly considers the correctness of the earlier decision." (Pawar v. HMRC [2025] UKUT 309 (TCC), Judges Raghavan and Paines KC)

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"There were a number of inconsistent first instance decisions on the point, which Rimer J considered, and came to a clear conclusion as to which line of authority he agreed with. In those circumstances, very convincing reasons indeed would have had to have been put before Judge Hodge QC before he could sensibly have departed from the reasoning and conclusions of Rimer J." (Re Lune Metal Products ltd (in administration [2006] EWCA Civ 1720, §9, Neuberger LJ)

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- High Court decisions: same as UT decisions, but possibly less inhibition in revisiting issues

“It is common ground that the decision in Morris is not binding on the Upper Tribunal. Nevertheless, the decision is clearly persuasive and I should follow it unless I conclude that it was wrong. See in that regard the judgment of the Upper Tribunal (David Richards J and Julian Ghosh QC) in Gilchrist v HMRC [2015] 2 WLR 1, at paragraphs 85-101.” (R (oao Higgs) v. HMRC [2015] UKUT 92 (TCC), §24, Barling J).

“It is clear therefore that the Upper Tribunal is not bound by a previous High Court decision. We cannot see any argument therefore that the F-tT should be bound by the High Court in preference to a conflicting Upper Tribunal decision.” (Meena Seddon Settlement v. HMRC [2015] UKFTT 140 (TC), §35).

“[Lady Hale in AH (Sudan) v. Secretary of State [2007] UKHL 49] emphasised the highly specialised character of some legislation before the tribunals, and the need for the higher courts to respect their expertise. Consistently with that approach, where such specialised issues arise before the Upper Tribunal, it may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so.” (Secretary of State for Justice v. RB [2010] UKUT 454, §41)

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