Circleplane Limited v The Commissioners for HMRC

The Upper Tribunal has jurisdiction to strike out an appeal for abuse of process, including an appeal that has become academic, under the general case-management powers in the Tribunal Procedure (Upper Tribunal) Rules 2008. That jurisdiction must be exercised consistently with the overriding objective.

An academic appeal will ordinarily proceed only where it raises a point of general importance, the respondent’s position and costs are properly protected, and both sides of the argument can be fully presented. Those conditions were not met. Open justice remains the default, and anonymity requires clear and cogent evidence of exceptional circumstances and strict necessity.

Circleplane appealed against the First-tier Tribunal’s refusal to recuse Judge Fairpo on grounds of apparent bias arising from her former membership of the same tax chambers as Circleplane’s counsel and the allocation of several cases to her.

While permission to appeal had been granted, the substantive FTT appeal was subsequently heard by a different judge and determined finally. Circleplane then sought privacy and anonymity, and applied to substitute a company as appellant and the FTT as respondent, or to proceed without a respondent. HMRC applied to strike out the appeal as academic or abusive.

The central questions were whether the Upper Tribunal had jurisdiction to strike out the appeal and, if so, whether it should exercise that jurisdiction.

1. Jurisdiction to strike out. Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008, read with the overriding objective in Rule 2, includes an express power to strike out for abuse of process in circumstances not falling within Rule 8. The general power to regulate procedure and dispose of proceedings is not confined to administrative matters. The conclusion was supported by Foulser v HM Revenue & Customs [2013] UKUT 038 (TCC) and Shiner v HM Revenue & Customs [2018] EWCA Civ 31.
2. Alternatively, the Upper Tribunal would possess an implied power, and the supplementary powers in section 25 of the Tribunals, Courts and Enforcement Act 2007 could extend to striking out where that was incidental to dealing with cases fairly and justly. The existence of permission to appeal did not prevent such jurisdiction.
3. Academic appeal. The appeal was academic between Circleplane and HMRC because the underlying FTT proceedings had been finally determined. Although the Upper Tribunal had jurisdiction to determine an academic appeal, the recognised conditions were not satisfied. The issue was not one of general importance, HMRC did not agree to the appeal proceeding and had not received a costs indemnity, and it would be highly undesirable to proceed without HMRC’s assistance on disputed factual matters.
4. The proposed substitution of a company as appellant and the FTT as respondent did not cure those difficulties. The company’s connection with the recusal issue was insufficiently established, and there was no satisfactory basis for proceeding without a properly participating respondent. The Cross-Applications were therefore refused and the appeal was struck out.
5. Privacy and anonymity. Open justice is the starting point. A derogation requires exceptional circumstances, strict necessity, and clear and cogent evidence. Assertions of sensitivity or possible reputational harm were insufficient. Anonymity was refused, although the emails were directed not to be disclosed to non-parties. Publication of the decision was deferred until the appeal rights of the relevant persons were exhausted, subject to confidential provision to the Judge and the President of the FTT Tax Chamber.

• First-tier Tribunal (Tax Chamber): Judge Fairpo refused the recusal application in written reasons dated 20 November 2023. The substantive appeal was later heard by a different judge and allowed in part on 19 September 2024; that decision was final.
• Upper Tribunal (Tax and Chancery Chamber): Permission to appeal was granted on all grounds. The Upper Tribunal refused the substitution applications, struck out the appeal, and refused anonymity in relation to the application and decision, subject to limited confidentiality directions.