Factual and Procedural Background
This appeal concerns a decision by Judge Mosedale to set aside two witness summonses issued to two individuals, referred to here as Witness A and Witness B, in connection with a tax appeal scheduled for March 2015. The appellant, Company A, sought to compel the attendance of Witness A and Witness B to give evidence. The Judge initially ruled that the tribunal had jurisdiction to issue the summonses but set them aside on grounds including failure of full and frank disclosure by Company A and issues surrounding the appropriateness of the summons procedure. Company A was refused permission to appeal by the Judge but later obtained permission from the Upper Tribunal. The Upper Tribunal now considers the appeal, focusing on jurisdiction, service, and procedural propriety.
Legal Issues Presented
- Whether the tribunal had jurisdiction to issue the witness summonses to non-resident witnesses with no residence or place of business in the jurisdiction.
- Whether there was an alternative and more appropriate route to obtain witness evidence, such as through letters of request, making the summonses inappropriate.
- Whether Company A failed to make full and frank disclosure when applying for the summonses, affecting the exercise of the tribunal's discretion.
- The legal requirements and effect of service of witness summonses under the Tribunal Procedure Rules compared to the Civil Procedure Rules.
- The consequences of improper service or lack of jurisdiction on the validity and enforceability of the witness summonses.
Arguments of the Parties
Appellant's Arguments
- The Judge erred in law by overemphasizing the need for full and frank disclosure when issuing witness summonses and gave disproportionate weight to any alleged inadequacy.
- The summonses should have been issued without the prerequisite that Witness A and Witness B first refuse to attend voluntarily.
- The Tax Chamber Rules do not require service in the same manner as the Civil Procedure Rules; actual receipt of the summons by the witnesses suffices.
- The summonses should stand and be effective if served by hand within the jurisdiction should the witnesses visit the UK.
Respondents' Arguments
- The tribunal lacked jurisdiction to issue witness summonses to non-resident witnesses who have no residence or place of business in the UK.
- The proper route for obtaining evidence from witnesses outside the jurisdiction is through letters of request under the Hague Convention, not witness summonses.
- The summonses were improperly served, as the witnesses did not have a relevant connection or presence in the jurisdiction.
- Setting aside the summonses was appropriate due to the failure of full and frank disclosure by Company A.
Witnesses' Arguments
- They contend the tribunal had no jurisdiction to issue the summonses given their non-resident status and lack of connection to the UK.
- The summonses should be set aside if they were not properly served.
- They are unwilling to incur further costs without a costs undertaking from Company A regarding the preparation of witness statements.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Chellaram v Chellaram (No 2) [2002] 3 All ER 17 |
Fundamental rule that a defendant may be served within jurisdiction only if present or deemed present. |
Reaffirmed as a fundamental principle subject to qualification; relevant to jurisdiction over non-residents. |
| City & Country Properties Ltd v Kamali [2007] 1 WLR 1219 |
Service may be valid even if defendant is temporarily absent from jurisdiction if they have relevant connection. |
Explained and distinguished from Chelleram; presence or business connection in jurisdiction key to service validity. |
| SSL International plc v TTK LIG Ltd [2012] 1 WLR 1842 |
Clarified limits of jurisdiction and service on foreign companies without presence in jurisdiction. |
Held no jurisdiction or valid service on companies with no UK presence; principle extended to witness summonses. |
| MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] 1 Ch 482 |
English court will not compel non-resident individuals to give evidence except in exceptional circumstances. |
Applied to limit tribunal’s power to issue witness summonses to non-residents with alternative procedures available. |
| London and County Securities v Caplan |
Urgent necessity may justify infringement of foreign sovereignty in exceptional cases. |
Referenced as a narrow exception to general rule against compelling evidence from non-residents. |
| Godwin v Swindon Borough Council [2002] 1 WLR 997 |
Care required in applying CPR provisions analogously to tribunal rules; tribunal procedures are less formal. |
Guided interpretation of tribunal rules on service and delivery of documents. |
| Abelaa v Baadarami [2013] UKSC 44 |
Service out of jurisdiction permissible where claim has real connection with jurisdiction. |
Cited to support that service rules require substantive connection to jurisdiction for validity. |
Court's Reasoning and Analysis
The tribunal first confirmed that it had jurisdiction to issue witness summonses in principle but noted that jurisdiction requires a relevant connection or presence of the witness within the jurisdiction. The witnesses in question were non-residents with no residence or place of business in the UK, and their infrequent visits were insufficient to establish jurisdiction.
The court distinguished the Tribunal Procedure Rules (TPR) from the Civil Procedure Rules (CPR), emphasizing that the TPR focus on sending, delivery, and receipt of documents rather than formal service requirements. However, the court rejected the appellant’s argument that actual receipt of the summonses alone sufficed to establish jurisdiction and enforceability against non-resident witnesses.
The court relied on established common law principles and case law, particularly the judgment in SSL International, which held that courts lack jurisdiction over foreign companies or individuals without a relevant connection to the UK. This principle extends to witness summonses, which have a direct compulsory effect on the witness, making jurisdictional connection even more critical.
The court considered alternative mechanisms for obtaining evidence, such as letters of request under the Hague Convention, as the appropriate route for non-resident witnesses, reinforcing the principle of respect for foreign sovereignty and procedural propriety.
Regarding the issue of full and frank disclosure, the court noted that while the duty is not as extensive as in injunction cases, an applicant must not mislead the tribunal. The judge below found that Company A misrepresented the witnesses’ willingness to give evidence, which influenced the discretionary exercise to issue the summonses.
The court declined to follow the appellant’s proposal to allow the summonses to stand but only be effective if personally served within the jurisdiction during a visit by the witnesses, finding that such an approach was neither appropriate nor consistent with the tribunal’s case management powers and the merits of the challenge.
Ultimately, the court concluded that the tribunal lacked jurisdiction to issue valid witness summonses to the non-resident witnesses, and that the summonses could not be effectively served or enforced under the Tribunal Procedure Rules in the circumstances.
Holding and Implications
The appeal by Company A is dismissed.
The court held that the tribunal did not have jurisdiction to issue witness summonses to the non-resident witnesses who had no residence or place of business in the jurisdiction. The summonses were properly set aside. The decision underscores the importance of jurisdictional connection for the validity of witness summonses and confirms that alternative international procedures must be used to obtain evidence from non-resident witnesses. No new precedent was established beyond the application and reaffirmation of existing principles. The direct effect is that Company A cannot compel the attendance of the witnesses via the existing summonses, and must seek alternative lawful means if it wishes to obtain their evidence.