Furlong Services Limited v The Commissioners for HMRC

An application to extend time for seeking permission to appeal should be considered through three stages: establish the length of the delay, identify the reasons for it, and evaluate all the circumstances, including prejudice, efficient conduct of litigation, proportionate cost and compliance with statutory time limits. The exercise is a judicial discretion, not a checklist. Failures by legal advisers will ordinarily be treated as failures by the litigant, although the client’s lack of knowledge may be relevant. Merits should be considered only to the extent of any obvious strength or weakness. A nine-month delay caused by repeated procedural failures, without a good explanation, justified refusal of an extension where the prejudice of compliance with the underlying information notice was not serious.

The appellant had appealed to the First-tier Tribunal against an HMRC information notice. The First-tier Tribunal varied parts of the notice but confirmed other requirements and stated that its decision was final under paragraph 32(5) of Schedule 36 to the Finance Act 2008. It refused permission to appeal.

The appellant’s application to the Upper Tribunal was due by 11 November 2024 but was not made validly until 7 August 2025. The appellant applied for an extension of time, explaining that the wrong form had been used and that there had been confusion about where the application should be sent. The central issue was whether time should be extended, with the possible merits of an appeal considered only as part of that assessment.

1. Adjournment. The application to adjourn the oral reconsideration was refused. The appellant had opportunities to provide evidence explaining the delay, and further postponement would prejudice HMRC and the administration of justice. The appellant’s director’s lack of knowledge of the solicitors’ defaults was taken into account, but did not justify vacating the hearing.
2. Applicable test. The three-stage approach in Martland v HMRC [2018] UKUT 178 (TCC), recently endorsed in HM Revenue & Customs v Medpro Healthcare Ltd [2026] EWCA Civ 14, was appropriate. The court had to establish the length of delay, identify the reasons for it, and then evaluate all the circumstances. That final assessment required a balancing exercise, with particular weight given to efficient and proportionate litigation and respect for statutory time limits. The court was not required to follow a checklist.
3. Application. The delay was approximately nine months and was serious and significant. Even allowing for delay caused by the First-tier Tribunal’s failure to respond promptly, the appellant remained responsible for approximately five months of culpable delay. The solicitors repeatedly used the wrong form, sent the application to the wrong tribunal, failed to provide required documents and delayed after being told how to proceed. No adequate explanation was offered.
4. Under HM Revenue & Customs v Katib [2019] UKUT 189 (TCC), a litigant is ordinarily responsible for failures by its legal adviser. The appellant’s lack of awareness was relevant but did not remove responsibility. HMRC suffered prejudice through the resources required to address the applications, and the purpose of the time limit included finality.
5. The possible merits did not justify an extension. Paragraph 32(5) of Schedule 36 to the Finance Act 2008 appeared to create a statutory bar to an appeal from the First-tier Tribunal’s decision. The Upper Tribunal proceeded on the generous assumption that an appeal right was arguable, but was not satisfied that there were strong grounds. The appellant’s compliance with the varied information notice would not be seriously prejudicial.
6. The Extension Application was refused. Under Rule 21(6) of the Upper Tribunal Rules, the application for permission to appeal was not admitted.

• First-tier Tribunal (Tax Chamber): On 25 July 2024, varied parts of HMRC’s information notice and confirmed other requirements. The decision was stated to be final under paragraph 32(5) of Schedule 36 to the Finance Act 2008. Permission to appeal was refused on 23 September 2024, with the refusal re-sent on 11 October 2024.
• Upper Tribunal (Tax and Chancery Chamber): Refused the appellant’s application to extend time and therefore did not admit the application for permission to appeal.