Spring Capital Limited v The Commissioners for HMRC

The First-tier and Upper Tribunals have judicial knowledge of the law of England and Wales, Scotland and Northern Ireland. They form a single UK-wide tribunal system, regardless of where a case is heard or which jurisdiction’s law governs the substantive dispute. The law of another UK jurisdiction is therefore dealt with by legal submissions rather than expert evidence as foreign law. The statutory appeal structure also requires the tribunals to determine the most appropriate appellate court for a point of law. Treating the law of another UK jurisdiction as a question of fact would frustrate that structure.

Spring Capital appealed from a preliminary decision of the First-tier Tribunal concerning an undertaking given in Court of Session proceedings. The appellant sought to adduce expert evidence from Scottish senior counsel on Scots law, contending that Scots law was foreign law and a matter of fact when the Tribunal was deciding an appeal arising under English law.

The First-tier Tribunal, sitting in Scotland before a Scottish-qualified judge, held that Scots law was within its judicial knowledge and that the question of expert evidence did not arise. The central issue before the Upper Tribunal was whether the 2007 tribunal legislation gave the First-tier and Upper Tribunals judicial knowledge of the laws of all three UK jurisdictions.

1. Appeal dismissed. The First-tier Tribunal was correct to hold that Scots law was a matter of judicial knowledge and that expert evidence on Scots law was unnecessary.

2. The Upper Tribunal held that the First-tier and Upper Tribunals have judicial knowledge of the law of England and Wales, Scotland and Northern Ireland. It considered itself bound by, and in any event agreed with, the decision of the Inner House in Advocate General for Scotland v Murray Group Holdings Ltd [2016] SC 201. The fact that the parties in that case had agreed that the tribunals possessed judicial knowledge of English law did not prevent the Inner House’s positive reasoning from being binding.

3. The Tribunals, Courts and Enforcement Act 2007 replaced the geographically based system of General and Special Commissioners with a single tribunal system. Section 26 permits either Tribunal to decide a case in any UK jurisdiction even where the case arises under the law of another jurisdiction.

4. Sections 13(11) and 13(12) provide a flexible mechanism by which the Upper Tribunal identifies the most appropriate appellate court. The appeal may be directed to the Court of Session, the Court of Appeal in England and Wales, or the Court of Appeal in Northern Ireland, depending on the point of law involved. Treating Scots or English law as fact in the tribunals would prevent an effective appeal on that point of law and frustrate the statutory scheme.

5. The earlier authorities concerning the Special Commissioners, whose jurisdiction was geographically assigned, did not apply to the tribunal system established by the 2007 Act. The Tribunal’s rules, practice and the constitution of panels qualified in more than one UK jurisdiction were consistent with the same conclusion.

• Upper Tribunal (Tax and Chancery Chamber): appeal dismissed.
• First-tier Tribunal (Tax Chamber): held that Scots law was within the Tribunal’s judicial knowledge and refused the proposed expert evidence, [2021] UKFTT 0147 (TC).