The Commissioners for HMRC v Bryan Robson Limited

Permission to appeal requires an arguable and material error of law with a realistic prospect of success. An Edwards v Bairstow challenge does not permit reweighing evidence or complaining merely that particular evidence was not mentioned. In a multi-factorial employment-status assessment, a tribunal may formulate a nuanced hypothetical contract rather than choose wholesale between the parties’ cases. It need not formulate every possible hypothetical “flashpoint”. Procedural unfairness is not established where the parties had notice of the competing cases and an opportunity to examine witnesses on the relevant issues.

The First-tier Tribunal decided that the intermediaries legislation applied to the hypothetical contract arising from Bryan Robson’s ambassador arrangements, while also deciding that part of the consideration related to image rights. HMRC appealed the image-rights decision. In its response, Bryan Robson Limited sought permission to appeal the IR35 decision under the Tribunal Procedure (Upper Tribunal) Rules 2008.

Permission was granted on two grounds and refused on a third. The oral renewal concerned whether the third ground disclosed an arguable, material error of law in findings concerning the minimum appearance commitment, the hypothetical contract, procedural fairness and an alleged “flashpoint”.

1. Permission refused. Following reconsideration, permission to appeal on Ground 3 was refused. Permission on Grounds 1 and 2 had already been granted.
2. An appeal lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007. The proposed error must be arguable and arguably material. The FTT did not identify the challenged findings as material factors in its IR35 categorisation.
3. The challenge did not meet the Edwards v Bairstow threshold. The FTT’s conclusions were rational and supported by the evidence. An appellate court cannot substitute its assessment of the evidence, and failure to mention particular evidence does not establish that it was overlooked.
4. The FTT was entitled to adopt a nuanced formulation of the hypothetical contract rather than make a binary choice between the parties’ competing cases. It was not required to formulate every possible “flashpoint”. A flashpoint was only an aid to the evaluative exercise.
5. No procedural unfairness was arguable. Both parties had notice of the competing formulations and could examine and cross-examine the witnesses about them. The accepted evidence supported the FTT’s conclusion concerning the minimum commitment and its consequences.

• Upper Tribunal (Tax and Chancery Chamber): on reconsideration after an oral hearing, refused permission to appeal on Ground 3.
• First-tier Tribunal (Tax Chamber): decision released on 20 January 2025 and reported at [2025] UKFTT 56 (TC); decided that the intermediaries legislation applied to the Ambassador Agreement and that part of the consideration related to image rights.