© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
E1. Authorities & precedent
BINDING EFFECT OF HIGHER DECISIONS
General statement
"[4] In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability. Cross and Harris in in their instructive Precedent in English Law 4th ed (1991), p 11, rightly refer to the “highly centralised nature of the hierarchy” of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy.
[5] The doctrine is, of course, seen in its simplest and most familiar form when applied to the hierarchy of courts. On issues of law, (i) Circuit Judges are bound by decisions of High Court Judges, the Court of Appeal and the Supreme Court, (ii) High Court Judges are bound by decisions of the Court of Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by decisions of the Supreme Court. (The rule that a Circuit Judge is bound by a decision of a High Court Judge is most clear from a “Note” included at the end of the judgment in Howard De Walden Estates Ltd v Aggio [2008] Ch 26)." (Willers v. Joyce (Re: Gubay (deceased) No 2) [2016] UKSC 44)
- Court of Appeal and Supreme Court binding on Tribunals
“There is no doubt that, when applying the law of England and Wales, the Upper Tribunal is bound by decisions of the Court of Appeal on issues of law in accordance with the ordinary rules of precedent. This follows from its status as a higher court, to which the State provides a direct right of appeal.” (Secretary of State for Justice v. RB [2010] UKUT 454, §39)
- UT declining to make any observations on correctness of binding CoA decision
"[22] We indicated to the parties our provisional view that the Court of Appeal in Hoey has, as Mr Gordon quite properly accepts, determined the very issues which are the subject of this appeal against the Appellants. Where, as here, the Appellants do not seek to distinguish the decision of the Court of Appeal, by the doctrine of precedent we are bound by the decision of the Court of Appeal and it is not open to this Tribunal to rehear the arguments de novo and determine whether, with respect, we consider the Court of Appeal was wrong. We indicated our provisional view that we are unlikely to engage at any length with the criticisms made by the Appellants of the decision of the Court of Appeal in Hoey and will instead focus upon the issues that arise in the statutory appeal before us, which in our provisional view, have been answered by the Court of Appeal in Hoey." (Higgs v. HMRC [2023] UKUT 296 (TCC), Judges Mandalia and Poole)
- Binding precedent that might be wrong
In such circumstances there is the possibility of an automatic dismissal of the appeal in order to expedite the parties’ journey to a higher court with jurisdiction to depart from the binding precedent - see Allan v. HMRC [2015] UKUT 16 (TCC), §§18 – 22.
- Decisions of tribunals/courts of equivalent jurisdiction
E4. Co-ordinate jurisdiction decisions
Purpose of rules
- Litigants + advisers know as surely as possible what the law is
"[21] Furthermore, it is important not to undermine the role of precedent in the common law. Even though it appears clear that both the reasoning and conclusion on the point at issue in Cookson v Knowles and Graham v Dodds were flawed, at least in the light of current practice, it is important that litigants and their advisers know, as surely as possible, what the law is. Particularly at a time when the cost of litigating can be very substantial, certainty and consistency are very precious commodities in the law. If it is too easy for lower courts to depart from the reasoning of more senior courts, then certainty of outcome and consistency of treatment will be diminished, which would be detrimental to the rule of law." (Knauer v. MoJ [2016] UKSC 9)
- Legal certainty + avoiding the appearance that the outcome of the case depends on which Judge happens to hear it
"[47] As I have explained at para 5 above, this court will be very circumspect before accepting an invitation to invoke the 1966 Practice Statement, because it considers it to be important not to undermine the role of precedent and the certainty which it promotes. The court will not overrule a previous decision simply because the justices would decide the case differently today: Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36; [2021] AC 1014, para 49, citing Horton v Sadler [2006] UKHL 27; [2007] 1 AC 307, para 29. This principle is vitally important to the operation and reputation of a court which does not sit en banc, and whose composition consequently varies from one case to another. In such circumstances, the principle is essential to counter the risk that the outcome of cases might otherwise depend, or at least might appear to depend, on who happened to be sitting. It is also essential to enable the consistent application of the law, and its coherent development, to take place. As was said in R v National Insurance Comr, Ex parte Hudson [1972] AC 944 (“Ex parte Hudson”), pp 996-997, if a tenable view taken by a majority in the first appeal could be overruled by a majority preferring another tenable view in a second appeal, then the original tenable view could be restored by a majority preferring it in a third appeal, and finality of decision would be utterly lost. For all these reasons, there is great force in the observation made by Lord Hoffmann in relation to the Judicial Committee of the Privy Council in Lewis v Attorney General of Jamaica [2001] 2 AC 50, 90:
“If the Board feels able to depart from a previous decision simply because its members on a given occasion have a ‘doctrinal disposition to come out differently’, the rule of law itself will be damaged and there will be no stability in the administration of justice”.
That observation is equally applicable to this court."" (Re Dalton [2023] UKSC 36)
PER INCURIAM
- Made without consideration of a binding higher authority
“In general this Tribunal is bound by all decisions of higher courts, and would carefully consider the decisions of equivalent jurisdiction. Nevertheless, I am not so bound where any such decision was:
- Made without consideration of a binding higher authority (‘per incuriam’);
- Inconsistent with a decision of equivalent authority which I prefer;
- If the views expressed did not form part of the actual judgment of the court. Such non-binding views are referred to as ‘obiter’. Nevertheless, I am bound to give such obiter views expressed by a higher authority considerable respect and would be likely to follow them unless I considered they did not properly reflect a decision of even higher authority or were inconsistent with one of equivalent authority which I preferred.” (L H Bishop Electric Company Ltd v. HMRC, §58, Judge Mosedale)
Rule does not apply where a lower authority is overlooked:
“It seems to us that the fact the Court of Appeal was not referred to Laura Ashley does not deprive the DFS decision of authority (it was not ‘per incuriam’): the Court of Appeal is not bound to consider decisions of lower courts.” (London School of Economics and Political Science v. HMRC [2015] UKFTT 291 (TC), §43, Judge Mosedale).
- Authority on related but different legislation does not make decision per incuriam
"[374] None of these cases referred to by Mr Watkinson concerned what is now section 83(1)(p) and it is therefore difficult to see them as confirming that Corbitt is binding authority on the scope of the tribunal's jurisdiction under section 83(1)(p). Indeed, despite his conclusion that Corbitt was "authoritative" that an appeal provision must be capable of being construed as giving the tribunal a supervisory jurisdiction, absent which the tribunal had no supervisory jurisdiction, in Dollar Land Judge J noted that the appeal provision (section 40(1) Value Added Tax Act 1983) had been expanded since the time of Corbitt and now included provisions which were accepted (including by HMRC) as supervisory in nature, concluding:
"Therefore, contrary to the position at the time of the Corbitt decision, it is no longer possible to conclude that the value added tax tribunal may never exercise supervisory jurisdiction in an appeal against the decision of the commissioners."
...
[376] The question of the breadth of the tribunal's jurisdiction is a vexed and difficult one, which has been considered in a number of previous decisions, but none of those authorities which Mr Watkinson identified as missing in action in Zeman (nor Corbitt, which was not on his list but which we raised ourselves and have just addressed) would have compelled the UT to a different conclusion, nor in fact did he specifically identify any which he thought would have that effect. They might have made the UT reconsider its view (although we rather doubt that given the range of authorities the UT did address), but it is not the case that any authority or statutory provision not addressed by the UT would have compelled it to reach a different conclusion." (WM Morrison Supermarkets Ltd v. HMRC [2025] UKFTT 1542 (TC), Judge Baldwin)
- The fact that different arguments were not deployed does not affect the ratio
"[84] In my judgment, therefore, Merck must persuade us that Newron was decided per incuriam. This court gave consideration to the meaning of that expression in Morelle Ltd v Wakeling [1955] 2 QB 379. The judgment of the court states at 406:
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong."
[85] They added:
"In our judgment, acceptance of the Attorney-General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided."" (Merck Serono SA v. Comptroller-General [2025] EWCA Civ 45, Lewison, Arnold, Birss LJJ)
"[136] First, although the facts of the Fleming case itself may not have been similar to those in the present case, the facts of Condé Nast were materially similar. This is because there were some payments which had been made in a period (the three years before the new limitation period came into effect on 1 May 1997) when there would still have been time on the facts to bring a claim for restitution of wrongly paid tax even under the new limitation period. That did not prevent the House of Lords reaching the decision which it did, of disapplying the new time limit in respect of all of the claims before it. The ratio of a case is the legal principle which is necessary to explain the outcome of that case on its facts. I cannot see how Mr Baldry's argument can account for the actual outcome on the facts of Condé Nast.
[137] Secondly, the fact that different arguments might have been deployed in an earlier case does not prevent the relevant legal principle from forming part of its ratio. In a slightly different context, because it concerned an earlier decision of this Court rather than an earlier decision of the House of Lords or Supreme Court, Sir John Donaldson MR said of the doctrine of per incuriam:
"I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion."
See Duke v Reliance Systems Ltd [1988] QB 108, at 113 (emphasis in original).
[138] The position appears to be different if a point of law was simply assumed to be correct in an earlier decision (even that of a superior court) without any argument on it: see e.g. FSHC Group Holdings Ltd v GLAS Trust Corpn Ltd [2019] EWCA Civ 1361, [2020] Ch 365, at [136] (Leggatt LJ, giving the judgment of the Court). But Fleming was not such a case: there was argument on the material issue of law. What Mr Baldry's submission really amounts to is that there was a better argument available to HMRC, which it did not advance at that time and which it now does.
[139] In my view, there is an important distinction in principle between a case in which an argument was not advanced on the earlier occasion and a case in which the legal issue was entirely different: see, by way of example, R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213. In that case, there had been an earlier decision of the Court of Appeal in which a challenge to the very same scheme now under challenge had been rejected: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397. That did not prevent the Court of Appeal from reconsidering the matter (and indeed deciding it in favour of the claimant) because there was an entirely new legal issue and a different ground of challenge advanced in Elias, which had not been raised in the earlier case. In the earlier case, the grounds of challenge were the conventional public law grounds of irrationality and breach of legitimate expectations; whereas, in Elias, the grounds arose under the Race Relations Act 1976. This was not therefore simply a case where different arguments were advanced which had not been made in the earlier case; the legal issues were themselves different.
[140] In the present case, in contrast, the legal issue is on proper analysis the same as that which arose in Fleming (on the facts of Condé Nast) and the decision in that case is binding on this Court." (Jazztel Plc v. HMRC [2022] EWCA Civ 232, per Singh LJ)
- Subsequent legislation changing the legal landscape (HRA 1998)
"[59] The case of Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 was not concerned with social services, but it raised a question as to whether there were circumstances in which lower courts might not be bound by decisions of the House of Lords, in the light of contrary decisions of the European Court of Human Rights. In a speech with which the other members of the committee expressed agreement on that aspect of the case, Lord Bingham concluded that lower courts should normally follow precedents which are binding on them under the domestic principles of stare decisis. He admitted one partial exception to that rule. Explaining that there were a number of considerations which made X v Bedfordshire a very exceptional case, he stated at para 45 that on these extreme facts “the Court of Appeal was entitled to hold, as it did in para 83 of its judgment in D [v East Berkshire], that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act”." (GN v. Poole BC [2019] UKSC 25)
INTERPRETATION OF JUDGMENTS
- Every judgment must be read in context to identify what it was deciding
"[45] As is the case of every passage extracted from a judgment, it is important to read it in the context of the facts and issues of the case. The issue in Nethermere was whether two individuals, who were part-time homeworkers who sewed garments manufactured by the appellant company, were employees of the company, and so had standing to bring proceedings for unfair dismissal. The company's case was that they were self-employed. It is critical to note that it was not argued that a separate contract arose each time that the applicants accepted a batch of garments to sew. Such contracts would not have satisfied the requirement for the period of continuous employment required in order to bring a claim for unfair dismissal. Instead, it was argued that that there was an overriding or umbrella contract under which individual batches of garments were accepted by the applicants: see p 626 per Stephenson LJ." (Professional Game Match Officials Ltd v. HMRC [2024] UKSC 29)
"[60] It is important not to lose sight of the basic tenets of common law reasoning that every judgment must be read in context, by reference to what was in issue in the case, and that it is only the ratio of the decision which establishes a precedent and not obiter dicta. All too often advocates treat the analysis of cases as if it were simply an exercise in looking at the language used by judges, forgetting that it is not particular verbal formulations that make the common law but the principles on which the actual decisions in cases are based. As Mark Leeming, a judge of the New South Wales Court of Appeal, has observed in a perceptive note on the Takhar case, Lord Kerr's judgment is an excellent example of how cases should be read, in his careful exposition of how the statements in the two Owens Bank cases did not bear on what was actually in issue in those cases: see M Leeming, “Has the golden age of fraud passed?” (2019) 19 Oxford University Commonwealth Law Journal 298, 302.
[61] In Takhar the claimant was seeking to show that the judgment against her was procured by fraud by relying on evidence obtained after the trial. Thus, there was no issue about whether the evidence in question was “new” or about what constitutes “new” or “fresh” evidence for the purpose of a claim to set aside a judgment for fraud: the evidence was “new” on any view of the matter. The only issue in the appeal was whether there was a requirement to show that the new evidence could not have been discovered with reasonable diligence in time to be deployed in the earlier proceedings (see para 37 above). No question arose as to whether it is or may be an abuse of process to attempt to set aside a judgment for fraud relying solely on information which the claimant had when the judgment was given.
[62] Accordingly, the Supreme Court did not receive argument on nor have to apply their minds to that question, let alone decide it. The judgments must be read in this light..." (Finzi v. Jamaican Redevelopment Foundation Inc [2023] UKPC 29)
- Observations of judges must be read in relation to the issues before them/should not be automatically applied to issues they cannot have had in mind
“It is a cardinal rule that the observations of judges and the law as stated by them must be read in relation to the issues which they had to try, and their remarks cannot safely be applied to questions which could not have been in the judges’ minds at the time.” (re Pilkington’s Will Trust [1961] Ch 466 at 489, Upjohn LJ).
“In my judgment, the references to entitlement in equity and beneficial entitlement [in a previous case] must be read in the context of the particular case in which those words were used. No one had in mind the problem with which I am concerned.” (Hoare Trustees v. Gardner (Inspector of Taxes) [1978] 2 WLR 839 at 844).
“I think the better view is that the Upper Tribunal either intended no comment on burden of proof at all in [137] or, if they did, they were talking merely of a shift in the evidential burden, in the sense that, as the appellant had shown that there was a comparator which gave equivalent tax liability to the arrangements actually adopted, the evidential burden had shifted to HMRC to establish that it was not a valid comparator.” (Hilden Park LLP v. HMRC [2017] UKFTT 217 (TC), §37, Judge Mosedale)
- General description of provision not to be confused with interpretation of specific wording
"[114] The Appellant submitted that its argument on this point was supported by the Supreme Court decision in Project Blue, where Lord Hodge said at [69] that the "'scheme transactions'…are the actual transfer or transfers by which a chargeable interest moves from V to P or P acquires a chargeable interest deriving from it". However, this was part of a general description of the provisions and was not an interpretation of s.75A(1)(b); indeed Lord Hodge referred to s.75A(1)(a), not s.75A(1)(b), as the authority for this comment." (Tower One St George Wharf Limited v. HMRC [2025] EWCA Civ 1588)
- Not to interpret using syntactical sleight of hand
"[58]...The reason that HMRC seized upon that paragraph is that the punctuation of §45 is slightly different to that of §48: in §45, the obligation to submit the BoD within the required period is referenced in the clause highlighted in bold above, which is separated from the rest of the paragraph by dashes. Interpreting those dashes as indicating a parenthetical clause, HMRC submitted that the CJEU's conclusion in Döhler can be stated by omitting that clause as follows:
"non-fulfilment of an obligation, linked to the benefit of an inward processing procedure in the form of a system of suspension, which must be carried out after the discharge of that customs procedure … gives rise, in respect of the entire quantity of the goods covered by the bill of discharge, to a customs debt".
[59] That is, we regret to say, pure syntactical sleight of hand and does not reflect the conclusion of the CJEU in Döhler. The CJEU's conclusion is in fact set out in §48. That is the paragraph which gives the answer to the referring court, and it is that paragraph which is repeated in the dispositif. Both §48 and the dispositif make clear that the consequence of non-compliance found in that case (namely the customs debt on the entire quantity of goods covered by the BoD) arose because the BoD had not been submitted at all within the relevant period of time. The CJEU does not, in either §48 or the dispositif, reach any conclusion as to the consequences of errors in individual cells within a BoD.
[60] The highlighted clause in §45 cannot therefore simply be omitted from the reasoning as HMRC seeks to do, because its removal then produces a conclusion which is completely different to the conclusion set out in §48 and the dispositif." (Thyssenkrupp Materials (UK) Limited v. HMRC [2024] UKUT 79 (TCC), Bacon J and Judge Sinfield)
- Purposive approach to interpretation of ratio
"[59]...Mr Warburton's argument is an attempt to escape the wide scope of a well-understood principle by latching on to certain words in the leading judgments and ascribing to them a meaning they will not bear textually and an effect which would run counter to the very principles and policies explained in those judgments. It is an approach to legal analysis which, in my judgment, should be seriously discouraged." (Warburton v. Chief Constable of Avon and Somerset Constabulary [2023] EWCA Civ 209, Phillips, Moylan and Males LJJJ)
LOWER COURT CASE LAW
- Deference to the consistent conclusion of experienced, expert Judges
"[59] Seventh, the respondents' patently more commercial construction of the savings clause has been unequivocally preferred by five experienced former and current judges of the Commercial Court (Butcher and Jacobs JJ, Sir Julian Flaux C, Popplewell and Phillips LJJ). It has also been adopted by McDonald J in the Irish High Court in Hyper Trust who expressed the following opinion, with which we agree, at para 50:
"I can see that a lawyer might construct an argument that the effect of the Government supports is to make good outlays already expended by the insured rather than to save or reduce those outlays in advance. However, I do not believe that this is how the savings clause would be construed by a reasonable person in the position of the parties."" (Gatwick Investment Ltd v. Liberty Mutual Insurance Europe SE [2026] UKSC 14)
STATUS OF LOWER COURT REASONING WHERE HIGHER APPEAL
- Lower court decision not binding if decided on a different basis by higher court
"[107] Although we are not bound by the decision of this court on the invoice issue in Zipvit (because the Supreme Court decided the case on a different point), I do not consider that there is anything in that judgment that is out of step with EU case-law as it stood at the time of Zipvit..." (Tower Bridge GP Limited v. HMRC [2022] EWCA Civ 998, Lewison, Snowden, Henderson LJJJ)
- CoA decision on issue not binding where UKSC decides appeal on another basis and that issue did not need to be decided
"[110] We are satisfied that the FTT erred in law in deciding it was bound by Derry CA on this issue. According to Al-Mehdawi, a decision of the Court of Appeal is not binding where the Supreme Court in giving the final decision on the case decided the appeal on the first issue and decided that the second issue, on which the Court of Appeal made a decision, did not need to be decided or resolved (as in Derry SC per Lord Carnwath at [68]-[69]). This is notwithstanding the further doubt cast on Derry CA in the obiter comments of Lady Arden in Derry SC at [82]-[83] that the Court of Appeal's decision on the issue may be wrong and the figures in boxes 15 & 16 of the return for adjustments to tax were not part of the statutory return.
[111] The FTT was not bound by Derry CA and was free to determine the issue of whether the claim to share loss relief was made in the return on the basis of the correct application of Cotter to the facts of this case. In doing so, it would have come to the conclusion set out below." (Murphy v. HMRC [2025] UKUT 165 (TCC), Richard Smith J and Judge Rupert Jones)
- Reference to lower court reasoning where there is a general endorsement by higher court
"[57] In particular, the reasoning of David Richards LJ in NCL CA at [67]-[78], including his approval of the FTT's decision in that case, is illuminating and I have drawn from it. As the UT observed, NCL SC included a general endorsement of the reasoning below at [19] and I do not detect that this section of the Court of Appeal's judgments was disapproved (see also at [67], referring to the Court of Appeal's reasoning on this issue)." (A D Bly Groundworks and Civil Engineering Limited v. HMRC [2025] EWCA Civ 1443, Falk LJ)
- Highly persuasive where not disapproved
"[106] The Court of Appeal's decision in Project Blue was reversed by the Supreme Court on a different ground, but these comments have not been disapproved. As Mr Henderson recognised, they remain highly persuasive, and he explicitly confirmed that HMRC do not ask this Court to depart from them, while recognising that HMRC may argue to the contrary in the Supreme Court should an appropriate case arise." (The Tower One St George Wharf Limited v. HMRC [2025] EWCA Civ 1588)
Higher appeal withdrawn by HMRC
- Indication that the lower decision is correct
"[54] Silver was an FTT judgment and, as such, it is not binding on this Tribunal. Consideration was given as to whether the fact that HMRC appealed Silver and subsequently withdrew from the appeal meant that the judgment itself could be given the status of that of having been given by the Upper Tribunal, but it was concluded that was not the case.
[55] There is, however, significance in HMRC’s appeal and withdrawal in the context of the principle of judicial comity. Judicial comity forms part of the principle of precedent. Both comity and precedent are rooted in the principle of stare decisis which requires courts to honour the findings of law made in earlier cases, in the case of precedent by a higher court and in the case of comity by co-ordinate courts. As set out in the case of HMRC v Abdul Noor [2013] UKUT 71 [82] it is the reasoning by reference to which a decision or judgment is reached that should be followed unless considered to be wrong.
[56] HMRC litigated Silver on the basis that the hypothetical recalculation did not permit account to be taken of a personal allowance which had been reduced as a consequence of the chargeable event gain and they lost. An appeal must have been lodged on the basis that Judge Mosedale had made an error of law. But it was subsequently withdrawn in close proximity to the making of a legislative amendment. Therefore there must be a strong indication that the judgment was not wrong but that ministers were concerned that the interpretation adopted would carry consequences which had not been addressed in Silver. Legislation was therefore introduced and ultimately enacted to address those consequences of which the facts of this case are an illustration. It is somewhat difficult to conclude that applying the legal principles determined by Judge Mosedale to the facts of this case the factual differences would impact her decision a full section 23 ITA calculation is required. A full calculation s23 ITA calculation is a full section 23 ITA calculation whether HMRC like the outcome or not." (Sally Judges v. HMRC [2022] UKFTT 77 (TC), Judge Amanda Brown QC)
PERMISSION DECISIONS
- Permission to appeal decisions generally not authoritative unless otherwise stated
"[6.1] A judgment falling into one of the categories referred to in paragraph 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this direction thatindication must be present in or clearly deducible from the language used in the judgment.
[6.2] Paragraph 6.1 applies to the following categories of judgment
- Applications attended by one party only
- Applications for permission to appeal -
- Decisions on applications that only decide that the application is arguable
County court cases, unless
(a) cited in order to illustrate the conventional measure of damages in a personal injury case; or
(b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available." (Practice Direction (Citation of Authorities) [2001] 1 WLR 1001)
- Permission to apply for judicial review decisions generally not authoritative unless otherwise stated
"[41] The decision in the Greenpeace case was subsequently followed in a number of lower court decisions. There were also decisions to a contrary effect and there are cases where the court treated time as running from the date of the actual grant of planning permission without any examination of the issue. There is some discussion of such cases in two articles: Jones and Phillpot, "When He Who Hesitates is Lost: Judicial Review of Planning Permissions" [2000] JPL 564 and Roots and Walton, "Promptness and Delay in Judicial Review - an update on the continuing saga" [2001] JPL 1360. These cases involve judgments on applications for permission to apply for judicial review. Such cases are generally not regarded as authoritative: see Clark v University of Linconshire and Humberside [2000] 1 WLR 1988, 1998-1999 paras 40-43, per Lord Woolf MR. For my part the earlier decisions, other than the important judgment of Laws J in the Greenpeace case, can be regarded as overtaken by the Court of Appeal decision in the present case. It is therefore on the reasoning in the Greenpeace case and in the Court of Appeal judgment that I must concentrate." (R (Burkett) v Hammersmith and Fulham LBC (No 1) [2002] UKHL 23)
"[70] We would observe that it is the case that decisions on applications for permission to apply for judicial review are "generally not regarded as authoritative": see R (Burkett) v Hammersmith and Fulham LBC (No 1) [2002] UKHL 23 at [41]. Further, Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 generally restricts the citation as case-law authority of "decisions on applications that only decide that the application is arguable". In R (on the application of Hexpress Healthcare Ltd) v The Care Quality Commission [2023] EWCA Civ 238, at [4] the Court of Appeal expressly gave permission for its decision to refuse an application for judicial review because the grounds were not arguable to be cited in accordance with the terms of the Practice Direction. That said, subsequent Tribunals have adopted the approach in Root2 Tax to identifying a tax advantage." (HMRC v. Asset House Piccadilly Limited [2025] UKFTT 206 (TC), Judge Geraint Williams)
- UT allowing HMRC to rely on JR permission decision
[71] [The taxpayer] objected that a permission decision could not be cited as authority, referring to the Supreme Court Practice Direction on the Citation of Authorities [2001] 1 WLR 1001. That objection is misconceived. The Practice Direction on the Citation of Authorities does not exclude from citation all types of permission decision. Rather, it sets out (in §§6.1 and 6.2) the following specific categories of judgment which may not be cited unless the judgment clearly indicates that it purports to establish a new principle or to extend the present law:
"Applications attended by one party only
Applications for permission to appeal
Decisions on applications that only decide that the application is arguable
County court cases, unless (a) cited in order to illustrate the conventional measure of damages in a personal injury case; or (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available."
[72] The Sibley judgment does not fall into any of those categories. It is a decision on an application for permission to apply for judicial review, where the judge concluded that the grounds advanced by the claimant were not reasonably arguable (and refused permission to rely on a further new ground at the hearing). The judgment may therefore properly be relied upon by HMRC. It is clearly relevant to the issues in this case, not least because the claimants' arguments in the present case bear some similarity to the arguments sought to be advanced in Sibley." (R (oao Fluid System Technologies (Scotland) Limited v. HMRC [2025] UKUT 278 (TCC), Bacon J and Judge Raghavan)
- Court giving permission for it to be cited
"For the detailed reasons set out below I have concluded that neither of the grounds is arguable and therefore refuse permission to apply for judicial review on these two grounds. As this judgment addresses the conflict between decisions at first instance, permission is granted to cite it in accordance with the terms of the Practice Direction (Citation of Authorities) [2000] 1 WLR 1001." (R (oao Hexpress Healthcare Ltd) v The Care Quality Commission [2023] EWCA Civ 238, Dingemans LJ)
PRIVY COUNCIL
- Great persuasive weight but generally not binding
"[12]...First, given that the JCPC is not a UK court at all, decisions of the JCPC cannot be binding on any judge of England and Wales, and, in particular, cannot override any decision of a court of England and Wales (let alone a decision of the Supreme Court or the Law Lords) which would otherwise represent a precedent which was binding on that judge. Secondly, given the identity of the Privy Counsellors who sit on the JCPC and the fact that they apply the common law, any decision of the JCPC, at least on a common law issue, should, subject always to the first point, normally be regarded by any Judge of England and Wales, and indeed any Justice of the Supreme Court, as being of great weight and persuasive value. Thirdly, the JCPC should regard itself as bound by any decision of the House of Lords or the Supreme Court - at least when applying the law of England and Wales." (Willers v. Joyce (Re: Gubay (deceased) No 2) [2016] UKSC 44)
"[226]...Privy Council decisions are not binding on courts in England and Wales, but they are considered highly persuasive..." (Milton Park Holdings Ltd v. HMRC [2025] UKFTT 1353 (TC), Judge Williams)
- Do not follow if inconsistent with binding decision
“[16] There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding in accordance with the principles set out in paras 5, 8 and 9 above.” (Willers v. Joyce (Re: Gubay (deceased) No 2) [2016] UKSC 44)
- Unless Privy Council expressly directs courts not to follow earlier decision
“[21] In any case where the Practice Direction applies, I would hold that the following procedure should apply from now on. The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales.” (Willers v. Joyce (Re: Gubay (deceased) No 2) [2016] UKSC 44)
SCOTTISH DECISIONS
- Generally follow in revenue matters
"[45] There is a well-established practice that the courts in this jurisdiction will follow the decisions of courts in Scotland on the same point of interpretation in revenue matters, since the legislation is of application in both jurisdictions and it would be highly undesirable if there were inconsistent decisions. This is particularly so at the appellate level, since any decision of ours will be binding on this Court and lower courts and tribunals in England and Wales, while the decision of the Inner House will be binding on all courts and tribunals in Scotland. This is subject to there being a "compelling reason" not to follow a Scottish decision on the same point: see e.g. Secretary of State for Employment and Productivity v Clarke Chapman & Co Ltd [1971] 1 WLR 1094, at 1102 (Widgery LJ); and Deane v Secretary of State for Work and Pensions [2010] EWCA Civ 699; [2011] 1 WLR 743, at para. 26 (Ward LJ), citing Abbott v Philbin (Inspector of Taxes) [1960] Ch 27, at 49 (Lord Evershed MR); and [1961] AC 352, at 373 (Lord Reid).
In my view, this Court should accord the greatest respect to the decision of the Inner House in Adnan. I can see no compelling reason to depart from the decision of the Inner House. Although I see some force in the submissions advanced on behalf of the Appellants, I also see force in the contrary submissions made on behalf of the Respondent, which in substance found favour in the Inner House." (R (oao DK) v. HMRC [2022] EWCA Civ 120, Singh LJ)
“whilst it is the case that the English and Scottish courts (including tribunals forming part of their respective judicial systems) are not bound to follow the judicial decisions of the other, regardless of the hierarchy level of the prior decision, it has long been the position that the interpretation of tax legislation ought, so far as possible, to follow the decisions of the cross-border court. Tax law generally applies to England and Wales and Scotland alike and should therefore be applied in the same way in both jurisdictions.” (National Exhibition Centre Ltd v. HMRC [2015] UKUT 23 (TCC), §30, Roth J and Judge Berner).
“In a case of a revenue statute of this kind it is the duty of this court, unless there are compelling reasons to the contrary, to say, expressing such doubts as we feel we ought to do, that we should follow the Scottish decision.” (Abbott v. Philbin [1960] Ch 27, 49, Lord Evershed MR – approach approved in House of Lords [1961] AC 352 at 367 and 373)
- Not binding (applies to Tribunal decisions)
“The decision is not binding (Under s41(2) of the Constitutional Reform Act 2005 such a decision of the Supreme Court is to be regarded as the decision of a court of the relevant part of the United Kingdom and, as pointed out by the Upper Tribunal in Commrs for HMRC v National Exhibition Centre Limited [2015] UKUT 23 (TCC) at [30], tribunals from the respective judicial systems of the relevant parts of the UK are not bound to follow the judicial decisions of the other).” (Deloitte LLP v. HMRC [2016] UKFTT 479 (TC), §14)
- HoL and UKSC decisions on appeal from Court of Session not technically binding in England
"[102] We begin with Mr Brodsky’s submission that the Tribunal is not bound by Udny. He is correct that judgments of the House of Lords (and now the Supreme Court) which decide an appeal from the Court of Session are not binding in England [5].
[103] However, where such a judgment has been repeatedly followed and endorsed by English courts and tribunals, it is accepted as authoritative: for example Donoghue v Stevenson [1932] AC 562 was also decided by the House of Lords following an appeal from the Court of Session.
[104] In considering whether Udny was similarly to be treated as authoritative, we took into account the following:
(1) In Grove, Cotton LJ, giving the leading judgment in the Court of Appeal, relied on Lord Westbury’s judgment in Udny, including his reference to “ sole or chief residence” describing it as a statement “which expresses what is sufficient to acquire a domicile of choice, and to give up the domicile of origin”.
(2) In Winans, the House of Lords cited Udny as an authority.
(3) In Re Fuld, Scarman J said Lord Westbury’s speech was “a classic description” of the concept of domicile, and went on to highlight two elements as being particularly relevant to that case, one of which was the dictum containing the reference to “chief residence”.
(4) In Bullock, the Court of Appeal endorsed the same dictum, with Buckley LJ saying only that “the expression ‘unlimited time’ requires some further definition”.
(5) In Portland, Nourse J stated that Udny was “the leading case” on the test appropriate to abandoning a domicile of choice.
(6) In Plummer, Hoffman J said that Lord Westbury’s statement had “always been treated as an authoritative statement of the circumstances in which a domicile of choice may be acquired”.
(7) In Cyganik, Mummery LJ stated that the dictum constituted one of two “important features” of the law of domicile. Longmore LJ said that in Re Fuld Scarman J had “correctly set out the principles by which English law determines whether a domicile of origin has been replaced by a domicile of choice”, and went on to say that “these principles cannot be revisited by this court stemming as they do from Udny v Udny…, Winans v Attorney-General…and IRC v Bullock…”
[105] We thus have no hesitation in finding that Udny is binding on this Tribunal." (Strachan v. HMRC [2023] UKFTT 617 (TC), Judge Redston)
ECHR DECISIONS
- Not binding
"[31] It is, of course, open to a domestic court to refuse to follow the Strasbourg court’s analysis and conclusion in MGN v UK, especially as it is a single decision of one section of the Strasbourg court. It is not as if there is a number of section decisions to the same effect or a decision of the Grand Chamber; it is also of some possible relevance that there was no oral argument in MGN v UK.
[32] However, there is undoubtedly a very powerful argument for concluding that we should effectively follow the Strasbourg court’s approach in that case. The judgment was full and careful, and the ultimate decision was based on a report which was prepared by a senior United Kingdom judge and was largely acted on by the UK government..." (Times Newspaper Limited v. Flood [2017] UKSC 33)
- Normally follow a clear and consistent line of decisions
[36] Our duty under the Human Rights Act 1998 section 2 is “take account of” the decision of the court. There appears to be no relevant Grand Chamber decision on the issue, but we would normally follow a “clear and constant line” of chamber decisions (see Manchester City Council v Pinnock [2011] 2 AC 104, para 48). This might perhaps be said of some of the previous decisions referred to in the judgment, including most recently Tsfayo v United Kingdom (2006) in which the application of article 6 was conceded by the government. However, it is apparent from the Chamber’s reasoning (see para 58 cited above) that it was consciously going beyond the scope of previous cases. In answer to Lord Hope’s concern that there was “no clearly defined stopping point” to the process of expansion, its answer seems to have been that none was needed. That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime." (Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36)
- Supreme Court refusing to follow decision of the Chamber inconsistent with previous Supreme Court decision
"[37] The scope and limits of the concept of a “civil right”, as applied to entitlements in the field of public welfare, raise important issues as to the interpretation of article 6, on which the views of the Chamber are unlikely to be the last word. In my view, this is a case in which, without disrespect to the Chamber, we should not regard its decision as a sufficient reason to depart from the fully considered and unanimous conclusion of the court in Ali. It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position." (Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36)
EU DECISIONS
CJEU decisions
- Decisions in references from the UK before end of 2020 have binding force
[16] It follows that, under the terms of the Withdrawal Agreement, judgments of the CJEU on references from United Kingdom Courts and Tribunals made before the end of 2020 are to have "binding force in their entirety on and in the United Kingdom" even if handed down in 2021 or later. Further, the United Kingdom is required by article 4(2) to ensure compliance with article 4(1) "through domestic primary legislation". (HMRC v. Perfect [2022] EWCA Civ 330)
- CA not following post-brexit CJEU decision
[118] It is also noticeable that in Kemwater the court did not refer to Geissel and on one view directly contradicts it. The only case that it cited was Ferimet. But Ferimet did not refer to Geissel either. Moreover, as I have said, Ferimet was a reverse charge procedure case for which the PVD itself laid down no formal requirements. The court in Kemwater did not explain why it was transposing a case dealing with the reverse charge procedure to the wholly different situation which it was considering.
[119] Because judgment in Kemwater was given after 31 December 2020 we are not bound by it, although we may have regard to it. In my judgment it is at odds with the previous jurisprudence of the court; proceeded to a decision without the benefit of an Advocate General’s opinion; does not explain why it applied a case in which no EU formalities were prescribed to one in which they were; and does not deal with the cases which only gave effect to corrected invoices, or where the taxable person ultimately supplied the information that the PVD required the invoice to contain. Although I have had regard to it, I do not consider that we should follow it." (Tower Bridge GP Limited v. HMRC [2022] EWCA Civ 998, Lewison LJ)
- Unreasoned order not treated as determinative
"[79] It seems to us that it is impossible for us to conclude that Megasol should determine the outcome of these appeals. There is no detailed reasoning in the CJEU's Order, the point was not substantively addressed and the facts were not fully laid out (e.g. whether Megasol had complied or had failed to comply with necessary exemption formalities required by the 2016 Implementing Regulations). Moreover, the Court dismissed the application on the basis that Megasol had not shown that the regulations were, as Ms Vicary put it, causing it a problem. On that basis, the Court considered that the point being raised a hypothetical situation in respect of which Megasol was seeking a declaratory decision and therefore had not established that it had a sufficient interest in bringing the proceedings. We consider that it is unsafe to treat Megasol as authority for any proposition other than that Megasol had simply failed to demonstrate how the 2016 Implementing Regulations were or might be applicable to it and, therefore, the application was inadmissible.
[80] Accordingly, we do not consider that that Megasol determines the position in these appeals." (Canadian Solar EMEA GmbH v. HMRC [2024] UKFTT 85 (TC), Judge Brannan)
AG opinions
- Advocate General opinions not binding
“However, this statement formed no part of his proposed answer to the question to the court which was to the extent an airline operating a domestic route could rely on the exemption within Article 148(g). His view was not repeated or considered by the CJEU, nor is it clear whether the parties had made submissions on this point. His views are not binding on this Tribunal.” (Norwich Airport Ltd v. HMRC [2012] UKFTT 277 (TC), §133)
FOREIGN AUTHORITIES
- On international tax matters
Considered in, for example, Irish Bank Resolution Corporation Ltd v. HMRC [2017] UKFTT 702 (TC).
- High Court of Australia authority persuasive
"[228] Geraghty v Minter [1979] HCA 42 is a decision of the High Court of Australia (equivalent to the UK Supreme Court) A decision of the High Court of Australia is not a binding precedent in the UK; instead, it may be of persuasive authority, meaning we may consider it, but are not required to follow it." (Milton Park Holdings Ltd v. HMRC [2025] UKFTT 1353 (TC), Judge Williams)
- Hong Kong authorities pre-dating National Security Law of 2022 persuasive
"[230] TTYP was a decision of the Hong Kong Court of Final Appeal ("HKCFA") in which Sir Anthony Mason (former Chief Justice of Australia) delivered the judgment. Historically, UK case law and judicial principles were highly influential, especially in areas like common law, in the HKCFA. Prior to the imposition of the National Security Law in 2022, UK judges sat on the HKCFA. The TTYP decision predates the National Security Law by some 12 years and we accept it is of persuasive authority." (Milton Park Holdings Ltd v. HMRC [2025] UKFTT 1353 (TC), Judge Williams)
- Informal translation of foreign authorities
"[384] [Counsel for the taxpayer] argued that no weight whatsoever should be attached to the informal translation. She argued that:
(1) HMRC had been aware of the appellant’s case on PFC (ie that “purely cosmetic applied only to surgery) since the Skeleton Argument had been filed three weeks previously and had also been aware that the Authorities Bundle included only the official English translation.
(2) The appellant had had no opportunity to test the accuracy of the informal translation or to decide whether it should seek an alternative translation.
(3) No one present spoke Swedish.
(4) There were only translations of three paragraphs and any paragraph in any judgment should be read in context.
[385] I have had regard to the Overriding Objective and I agree with her on all counts. Accordingly I have disregarded both the translation and the arguments for HMRC predicated thereon." (Aesthetic-Doctor.Com Ltd v. HMRC [2024] UKFTT 48 (TC), Judge Anne Scott)
ACADEMIC AND COUNSEL OPINIONS
- Eminent counsel opinion has persuasive authority
“The seminal opinion, as the appellants describe it, is that of Mr Michael Nolan QC (later Lord Nolan) and Mr Robin Mathew (now QC) of 7 December 1978…At first sight that conclusion seems contrary to the view expressed in the Nolan opinion, quoted at para 13 above. Although the opinion is not binding on me, a statement of such eminent authorship is obviously of great persuasive value.” (Irish Bank Resolution Corporation Ltd v. HMRC [2017] UKFTT 702 (TC), §§13…65, Judge Bishopp).
UNPUBLISHED DECISIONS
- Unpublished decisions not admissible for HMRC
"[10] For present purposes, in refusing permission for HMRC to rely on Wesley we had regard to the overriding objective of dealing with cases fairly and justly. There is no rule of law which prohibits a party from relying on an unpublished decision in another tribunal. Each case must be considered on its own merits and it is a matter for the discretion and judgment of the particular tribunal. We took into account the following factors:
(1) As we understand it, most written decisions of the FTT on substantive appeals are published on the FTT’s website, on the National Archive and on BAILII. Some basic cases are not published and there may be certain circumstances, including oversight, where a decision is not published. HMRC will be aware of all unpublished decisions of the FTT whereas most taxpayers and their representatives will have no knowledge of unpublished decisions. HMRC might therefore be perceived as having an unfair advantage over the general body of taxpayers. There is potential for HMRC, even if only by inadvertence, to refer to favourable unpublished decisions but not to refer to unfavourable decisions. Indeed, we note that in Ardmore, counsel for HMRC gave an assurance that no-one connected with the appeal including HMRC’s policy leads, were aware of any other relevant, unpublished FTT decision.
(2) We agree with the FTT in Ardmore that elementary justice demands that rules which bind a citizen should be ascertainable by the citizen by reference to identifiable sources which are publicly accessible (see Fothergill v Monarch Airlines Limited [1981] AC 251 at 279, per Lord Diplock, albeit in a different context). (3) We accept that in this case there was no specific prejudice to the appellants. The appellants are well represented and were given notice prior to the hearing that HMRC intended to rely on Wesley and were provided with a copy of the decision. We should add that, in his submissions on the issue of whether we should have looked at Wesley (in its unpublished state), Mr Rivett made it quite clear that he was not claiming any specific prejudice to the appellants. His position, quite properly, was that he was making his submissions in the interests of all those taxpayers, and in particular those without representation, who might be prejudiced if HMRC was permitted to make references to unpublished authorities of which HMRC alone were likely to be aware.
(4) There was ample authority before us from the higher courts as to the correct test for the POEM of the trusts and we had the benefit of full submissions from experienced counsel. We considered that we were unlikely to gain any further assistance from Wesley.
[11] Weighing all these factors, we considered that fairness and justice required us to refuse permission for HMRC to rely on Wesley in its unpublished state."
(Haworth v. HMRC [2024] UKUT 58 (TCC), Edwin Johnson J and Judge Cannan)
"[25] HMRC referred the Tribunal to an unpublished 2019 First-tier Tribunal decision. In Ardmore Construction Ltd v HMRC [2014] UKFTT453 the First-tier Tribunal did not consider it proper for HMRC to cite an unpublished decision. Judge Brooks stated, at [20]:
“This clearly raises the question of fairness and whether HMRC should be permitted to rely on an unpublished (as opposed to an unreported) decision not freely available to the general taxpayer, especially as we are obliged to give effect to the overriding objective, contained in Rule 2 of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (the “Tribunal Rules”), to “deal with cases fairly and justly” which includes dealing with a case in ways which “are proportionate” to the “resources of the parties”.
[26] I do not consider it proper for HMRC to have cited an unpublished decision in this case and I have not relied upon it." (Fastklean Ltd v. HMRC [2020] UKFTT 289 (TC), Judge Sukul)
On the approach to publication see P1: Nature of Tribunal's decision
- Unpublished decisions may be admissible for taxpayer
"[12] In the FTT there may be additional relevant factors. For example, the FTT in Ardmore noted that as a matter of judicial comity, the FTT will generally follow other FTT decisions unless satisfied that they are wrong. The perception of unfairness may be stronger in those circumstances. However, we do not rule out that there may be cases where it may be appropriate for the FTT to be referred to and to take into account an unpublished FTT decision. Indeed, HMRC may well consider it appropriate to refer the FTT to an unpublished decision which is unfavourable to their case." (Haworth v. HMRC [2024] UKUT 58 (TCC), Edwin Johnson J and Judge Cannan)
"[22] One of the reasons given by Mr Messore for his application was that a Tribunal may not allow a party to refer to or rely on an unpublished Tribunal judgment. In Ardmore Construction Limited v HMRC [2014] UKFTT 453 (TC) at [22], Judge Brooks refused to allow HMRC to rely on an unpublished judgment of the Special Commissioners because HMRC had copies of all Special Commissioners and Tribunal judgments, and it was not fair for them to rely on a case which the taxpayer could not access.
[23] More recently, in Greencyc v HMRC [2021] UKFTT 480 (TC), Judge Alexander first cited the relevant passages from Ardmore and then refused permission for the taxpayer to rely on an unpublished interlocutory decision. He said:
“what is sauce for the goose must also be sauce for the gander - if it is not proper for HMRC to cite an unpublished decision, fairness dictates that it is also improper for the appellant to cite an unpublished decision.”
[24] Ms Mallik submitted that this was the correct approach, and that the Tribunal should neither publish the Decision, nor should any person (other than the parties) be able to refer to or rely on it.
[25] However, my own view is that there is a difference between HMRC citing and relying on unpublished judgments, and the taxpayer doing so. Taxpayers rarely have copies of unpublished judgments; this usually only happens if they or their advisers know an appellant in a previous case, or if the adviser maintains a library of judgments in earlier cases in which they represented an appellant.
[26] In contrast, HMRC is the respondent in all tax appeals. They have an entire and complete library of unpublished judgments. If HMRC were permitted to rely on these judgments at the Tribunal, they could select one from that library, and the taxpayer (and the Tribunal panel) would not know whether other contradictory or conflicting unpublished judgments also existed.
[27] But the position is not the same where the taxpayer seeks to rely on an unpublished judgment. HMRC know whether or not that judgment is atypical, an outlier, or reflects the consensus view of previous Tribunals who have considered similar issues. They are thus in a position to challenge reliance on an unpublished judgment, whereas the taxpayer is not.
[28] This reflects the position in Ardmore, where Judge Brooks first noted at [20] that:
“HMRC has copies of all decisions made in the various tax courts, because, of course, it is always a party to such proceedings.…This means that HMRC has the ability to draw upon some decisions of the tax courts that are not freely available to the general taxpayer,”
[29] He then said:
“This clearly raises the question of fairness and whether HMRC should be permitted to rely on an unpublished (as opposed to an unreported) decision not freely available to the general taxpayer, especially as we are obliged to give effect to the overriding objective, contained in Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the ‘Tribunal Rules’), to ‘deal with cases fairly and justly’ which includes dealing with a case in ways which ‘are proportionate’ to the ‘resources of the parties’.”
[30] Thus, I would allow a taxpayer to rely on an unpublished judgment as long as HMRC had had due notice, but I would not allow HMRC to do the same. In other words, the HMRC goose and the taxpayer gander are not in the same position. I accept, however, that other judges may take a different view." (Lillicrap v. HMRC [2023] UKFTT 72 (TC), Judge Redston)
- HMRC not seeking publication of unfavourable decision until much later
"[14] We would add that the present circumstances vividly illustrate the potential unfairness to taxpayers. Wesley concerned the question of POEM. It also concerned what was described as the “different persons argument”. The FTT determined that argument in favour of the taxpayer. The same argument was raised by HMRC in this appeal before the FTT. The decision in Wesley was released to the parties in February 2021, which was after the FTT hearing in the present appeal but a year before the FTT released its decision. We understand that the present appellants and their legal advisers were unaware that there was an FTT decision which dealt with POEM and the different persons argument. It might well have assisted the taxpayer and indeed the FTT in this appeal to see how the FTT in Wesley had dealt not only with POEM but also with the different persons argument. In the event, the FTTs came to the same conclusion on the different persons argument. Of course, this might all have been avoided if HMRC had invited the FTT to publish the decision in Wesley soon after it was released. It seems unlikely that it went unnoticed by HMRC that the decision had not been published." (Haworth v. HMRC [2024] UKUT 58 (TCC), Edwin Johnson J and Judge Cannan)
ARTIFICIAL INTELLIGENCE
- Artificial Intelligence generated authorities
"[23] Although we have accepted that Mrs Harber did not know the AI cases were not genuine, we reject her submission that this did not matter because the Tribunal had decided other reasonable excuse cases on the basis of ignorance of the law and/or mental health issues. We instead agree with Judge Kastel, who said on the first page of his judgment (where the term "opinion" is synonymous with "judgment") that:
"Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court's time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the…judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity."
[24] We acknowledge that providing fictitious cases in reasonable excuse tax appeals is likely to have less impact on the outcome than in many other types of litigation, both because the law on reasonable excuse is well-settled, and because the task of a Tribunal is to consider how that law applies to the particular facts of each appellant's case. But that does not mean that citing invented judgments is harmless. It causes the Tribunal and HMRC to waste time and public money, and this reduces the resources available to progress the cases of other court users who are waiting for their appeals to be determined. As Judge Kastel said, the practice also "promotes cynicism" about judicial precedents, and this is important, because the use of precedent is "a cornerstone of our legal system" and "an indispensable foundation upon which to decide what is the law and its application to individual cases", as Lord Bingham's said in Kay v LB of Lambeth [2006] UKHL 10 at [42]. Although FTT judgments are not binding on other Tribunals, they nevertheless "constitute persuasive authorities which would be expected to be followed" by later Tribunals considering similar fact patterns, see Ardmore Construction Limited v HMRC [2014] UKFTT 453 at [19]." (Harber v. HMRC [2023] UKFTT 1007 (TC), Judge Redston)
- Unrepresented parties remain responsible for accuracy of information in submissions, but may affect culpability
"[111] The updated guidance for judicial office holders of 14 April 2025 includes a section "3. Guidance for responsible use of AI in Courts and Tribunals". Paragraph 7 is titled "Be aware that court/tribunal users may have used AI tools" and includes the following guidance:
"AI chatbots are now being used by unrepresented litigants. They may be the only source of advice or assistance some litigants receive. Litigants rarely have the skills independently to verify legal information provided by AI chatbots and may not be aware that they are prone to error. If it appears an AI chatbot may have been used to prepare submissions or other documents, it is appropriate to inquire about this, ask what checks for accuracy have been undertaken (if any), and inform the litigant that they are responsible for what they put to the court/tribunal. Examples of indications that text has been produced this way are shown below."
[112] We repeat this guidance in relation to unrepresented litigants. The accuracy of Artificial Intelligence (AI) should not be relied upon without checking, particularly when it comes to statements or arguments that it makes concerning the law. There is a danger that unarguable submissions or inaccurate or even fictitious information or references may be generated. Unrepresented parties, just as legal representatives, remain responsible for the accuracy, both the reliability and credibility, of the information, both evidence and submissions, they present to the FTT or UT.
[113] In this case, HMRC was put to the trouble of having to investigate the existence of the purported decisions relied upon by the Respondent. Fortunately, they did so. Depending on the circumstances, there may be occasions when the opposing party or the tribunal are not able to discover the errors relied upon. There may be others where an adjournment is required to investigate or address the inaccurate information.
[114] On these facts, we do not consider the Respondent to be highly culpable because he is not legally trained or qualified, not subject to the same duties as a regulated lawyer or other professional representative and may not have understood that the information and submissions presented were not simply unreliable but fictitious. He was under time pressure given his other competing responsibilities and doing his best as a lay litigant seeking to assist the UT by preparing written submissions.
[115] Nonetheless, in the appropriate case the UT may take such matters very seriously. Sanctions available for the misuse of AI by a party or representative are highlighted in Ayinde at [23]-[31]. Many of these sanctions are available to the UT." (HMRC v. Gunnarsson [2025] UKUT 247 (TCC), Judges Rupert Jones and Mandalia)