Bramley Ferry Supplies Ltd v Revenue and Customs (PROCEDURE)

Factual and Procedural Background

The applications arise from an appeal by the Appellant against a decision of the First-tier Tribunal ("FTT") dated 11 May 2016, where the FTT held that the Appellant's appeal had been made out of time and refused to admit the appeal late. The Appellant sought permission to appeal against the FTT Decision on two grounds: first, that the FTT erred in law by not considering the merits of the appeal when deciding on the late admission; second, that the FTT failed to properly account for the delay being due to the Appellant's legal advisers rather than the Appellant itself. Permission to appeal was initially refused by the FTT but later granted by the Upper Tribunal. Proceedings were stayed pending the Supreme Court's decision in a related case. Subsequently, the Appellant made two further applications to the Upper Tribunal: to admit an additional ground of appeal challenging the factual finding that the appeal was late, and to introduce new evidence in the form of a witness statement from a paralegal employed by the Appellant's solicitors. Both applications were refused by the Upper Tribunal.

Legal Issues Presented

1. Whether the Upper Tribunal should admit an additional ground of appeal challenging the FTT's factual finding that the appeal was made out of time.
2. Whether the Upper Tribunal should permit the introduction of new evidence not previously before the FTT in support of the additional ground of appeal.

Arguments of the Parties

Appellant's Arguments

• The existing grounds of appeal only challenged the refusal to admit a late appeal, not the factual finding of lateness. Evidence showed the appeal was made within the 30-day limit, including dates of preparation and transmission of the notice of appeal.
• The FTT disregarded this evidence, constituting an error of law under the principles of Edwards v. Bairstow.
• Despite the late stage of the new ground application, it was in the interests of justice to allow it because the appeal concerned the revocation of a critical licence fundamental to the Appellant's business.
• There would be no prejudice to the Respondents due to the stay of proceedings and time to prepare a response.
• The new evidence from the paralegal was relevant and important, supporting the new ground and explaining why it was not produced earlier.
• The Upper Tribunal's case management powers and overriding objective to deal with cases fairly and justly justify admitting new evidence more flexibly than in original trials.

Respondents' Arguments

• The application for the additional ground was made too late, with no explanation for the delay, and should have been raised earlier.
• The new ground was entirely new and prejudicial, requiring reconsideration of matters thought closed.
• The new ground lacked merit because the Appellant failed to discharge the burden of proof that the appeal was timely, including absence of evidence such as an automated receipt from the Tribunal.
• Evidence from the paralegal was not before the FTT and thus could not form a basis for challenging the FTT's findings under Edwards v. Bairstow.
• The new evidence could have been obtained with reasonable diligence before the original hearing and should not be admitted under the criteria from Ladd v. Marshall.
• There would be prejudice and unfairness in reopening a closed issue after a full hearing and decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal considered the applications against the overriding objective to deal with cases fairly and justly. It noted the significant delay in raising the additional ground of appeal and found no satisfactory explanation for it. The Tribunal emphasized that the new ground challenged a factual finding rather than a procedural decision and should have been raised earlier. The Tribunal also recognized that allowing the additional ground would prejudice the Respondents by reopening matters considered closed. On the merits, the Tribunal found the FTT judge was entitled to reject the Appellant's evidence, particularly as the Appellant's witness declined cross-examination. The Tribunal held that evidence not before the FTT could not form the basis for a legal error under Edwards v. Bairstow.

Regarding the application to introduce new evidence, the Tribunal acknowledged the Appellant's arguments for flexibility in procedural appeals but concluded that the Ladd v. Marshall criteria remained persuasive. The Appellant failed the first criterion, as the new evidence could have been obtained with reasonable diligence before the FTT hearing. Additionally, the new evidence largely duplicated that already before the FTT and did not address the challenges that led to the FTT's decision. The Tribunal expressed concern that admitting the evidence and new ground would allow the Appellant a "second bite at the cherry," undermining finality and effective case management. Accordingly, the applications were refused as not being in the interests of justice or fairness.

Holding and Implications

The Upper Tribunal REFUSED the Appellant's applications to admit an additional ground of appeal and to introduce new evidence.

This decision maintains the finality of the FTT's factual finding that the appeal was out of time and prevents reopening of issues already decided. No new precedent was established; the ruling reinforces the principle that new grounds and evidence must be timely and that evidence not before the original tribunal generally cannot ground an appeal on a point of law under Edwards v. Bairstow. The Tribunal also confirms the continuing relevance of the Ladd v. Marshall criteria as persuasive authority in considering the admission of new evidence, balanced against the overriding objective of fairness and justice.