Third Party Access To Pleadings In The FTT

• Published date: 11 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Tax, Arbitration & Dispute Resolution, Court Procedure, Tax Authorities
• Law Firm: Herbert Smith Freehills
• Author: Mr Nick Clayton and Avi Haffner

In Cider of Sweden Ltd v HMRC (Ernst & Young LLP (Third Party)) [2022] UKFTT 76 (TC), the First-tier Tribunal ('FTT') has issued a significant, but narrow decision regarding third-party access to pleadings filed in proceedings before the FTT. (In this note, 'pleadings' refers to notices of appeal; grounds of appeal; statements of case; and any further and better particulars in respect of any such documents.)

Consistently with the approach of the Courts and Tribunals when considering similar questions in the past, the FTT approached this as an application of the principle of open justice. Previously, the Tax Tribunals have held that open justice will usually permit third parties to access:

• pleadings (and skeleton arguments, which are not 'records of the court' and in respect of which different considerations apply) filed in the FTT after the FTT has held a hearing and issued a decision: Hastings Insurance Services Ltd v HMRC (KPMG LLP (Third Party)) [2018] UKFTT 478 (TC) ('Hastings'); and
• pleadings filed in the Upper Tribunal ('UT') before the UT has held a hearing: Aria Technology Ltd v HMRC (Situation Publishing Ltd (Third Party)) [2018] UKUT 111 (TCC) ('Aria').

However, the question of third-party access to pleadings in the FTT before a hearing had not been addressed until now.

The application

The main proceedings between Cider of Sweden ('COS') and HMRC were not material to the FTT's judgment in the application, but in broad terms, COS complained that the UK's 'Post Duty Point Dilution' regime gave rise to unlawful discrimination against it as an EU drinks manufacturer and therefore sought damages in the High Court and a refund of excise duty in the FTT.

Ernst & Young ('EY') acted for a number of clients who were affected by the same regime and therefore interested in the outcome of the actions brought by COS. EY obtained copies of the statements of case in COS's High Court action (pursuant to CPR Rule 5.4C(1)) which referred to the FTT appeal. EY therefore applied to the FTT to request copies of both parties' pleadings. The FTT was originally minded to grant EY's request, but afforded the parties the opportunity to object. Both parties did object and so the application went to an oral hearing.

EY's arguments

EY argued that the Tribunals in Hastings and Aria had held that the Tribunal's practice in respect of third-party access should be aligned with that of the High Court. This followed from their statements that CPR 5.4C(1) (which applies in the High Court but not the Tribunals) is itself simply an expression of the principle of open justice. The FTT should...