Paul David Eveleigh v The Commissioners for HMRC

An application to extend time for filing an appeal notice requires a structured three-stage assessment: the length and significance of the delay, the reasons for default, and all the circumstances. The final stage includes the merits in outline, prejudice, efficient and proportionate litigation, and the public importance of respecting statutory time limits.

An appellant who receives clear instructions about the filing deadline must take reasonable steps either to file the notice or to confirm that an authorised representative has done so. A serious and lengthy delay without a meritorious explanation may outweigh substantial prejudice to the appellant and an arguable appeal.

The appellant appealed against an excise duty assessment upheld by the First-tier Tribunal. The First-tier Tribunal dismissed the substantive appeal on 3 April 2023 and granted permission to appeal to the Upper Tribunal on 27 July 2023.

The appellant did not file his Upper Tribunal notice of appeal until 13 September 2024, almost a year after the applicable one-month period had expired. He sought an extension of time, arguing that the First-tier Tribunal had failed to copy his pro bono counsel into the permission decision and that he had misunderstood the procedural requirements. The central issue was whether time should be extended under the Upper Tribunal rules.

1. Application refused. The notice of appeal was filed approximately eleven months late. Even on the most favourable calculation, the delay was about nine months and was serious and significant.
2. The governing approach was the three-stage test in Martland v HMRC [2018] UKUT 178 (TCC): assess the length and significance of the delay, identify the reasons for default, and evaluate all the circumstances. The third stage required consideration of the merits in outline, prejudice, efficient and proportionate litigation, and the importance of respecting statutory time limits.
3. The First-tier Tribunal was not obliged to send the permission decision to counsel merely because counsel had represented the appellant at an earlier hearing. Under the representative-notification rules, appointment required clear written notification. Attendance as an assisting person at a hearing did not itself create a continuing appointment.
4. The appellant’s misunderstanding did not provide a good explanation. A reasonable appellant who received instructions stating the filing deadline and consequences of non-compliance would file the notice, confirm that an authorised representative had done so, or follow up when no progress was reported. The absence of evidence that any such steps were taken materially weakened the explanation.
5. The proposed appeal was arguable, but only in the limited sense that the grounds had a reasonable prospect of success. The merits did not require detailed investigation at this stage. The appellant’s greater personal prejudice and HMRC’s limited practical prejudice therefore weighed in his favour, but the weight of those factors was limited by the uncertainty of success.
6. The serious unexplained delay, together with the public interest in finality and compliance with statutory time limits, outweighed the factors favouring an extension. The application to extend time was refused.

• Upper Tribunal (Tax and Chancery Chamber): refused the application to extend time for filing the notice of appeal.
• First-tier Tribunal (Tax Chamber): dismissed the substantive appeal on 3 April 2023 and granted permission to appeal on 27 July 2023. The decision is referred to as Paul David Eveleigh v HMRC [2023] UKFTT 00356 (TC).