Kashif Javaid v The Commissioners for HMRC

Permission to raise a new point on appeal depends on the interests of justice, including the nature of the proceedings below, the point itself and prejudice to the other party. A need for further evidence is a powerful, though not decisive, reason to refuse permission. A point does not become self-contained law merely because it raises statutory interpretation or proportionality: where its application depends on personal circumstances for which the first-instance tribunal made no findings, further evidence may be required. Case-management measures may not cure prejudice where the point would have changed disclosure, evidence and cross-examination. An appellate responsibility to assess proportionality on an appeal from a first-instance assessment does not require the appellate tribunal to make an assessment that was never made below.

The First-tier Tribunal dismissed appeals against personal liability notices issued to Mr Javaid under paragraph 19 of Schedule 24 to the Finance Act 2007. The notices attributed to him the full amount of penalties assessed on AA Com Limited and Victory Telecom Limited, the companies of which he was the sole shareholder. The FTT decision was published as AA Com Limited, Victory Telecom Limited and Kashif Javaid Limited v HMRC [2025] UKFTT 01601 (TC).

After the FTT refused permission to appeal, Mr Javaid sought to raise a new ground. He argued that section 3 of the Human Rights Act 1998 required paragraph 19 to be read compatibly with Article 1 Protocol 1 ECHR, so that the attribution was proportionate. He relied on the companies’ low profit margins and the penalties’ effect on him. The question was whether this new proportionality ground could be raised without further evidence and, if so, whether permission to appeal should be granted.

1. Permission refused. The proposed proportionality ground required further evidence and factual inquiry. It was not a self-contained point of law that could be determined on the FTT’s findings. Permission to advance the ground was refused, and permission to appeal it was consequently refused.

2. The approach to a new point on appeal is whether allowing it would be fair and just in all the circumstances. Relevant considerations include the nature of the proceedings below, the nature of the new point and prejudice to the opposing party. The principles in Singh v Dass [2019] EWCA Civ 360 and the all-factors approach in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 guided that assessment. The Tribunal left unresolved whether an exceptional-circumstances requirement applies generally, but the parties agreed it applied where new evidence was needed. Even then, the need for evidence was powerful but not decisive; the overall question remained the interests of justice.

3. Although the proposed interpretation of paragraph 19 under section 3 of the Human Rights Act 1998 raised a question of law, deciding the ground required a factual assessment. The proportionality challenge focused on whether a less intrusive measure was available and whether a fair balance had been struck under the approach in Bank Mellat v HM Treasury (No 2) [2014] AC 700. The Tribunal had no findings about Mr Javaid’s assets, liabilities, income, resources or ability to meet the notices. Low company profit margins and his shareholding did not establish the notices’ personal financial effect on him.

4. The proportionality authorities did not remove that evidential difficulty. In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2023] AC 505 recognised that proportionality applies legal tests in a factual context; it did not address whether this challenge could be decided without further evidence. In re JR123 [2025] UKSC 8 concerned an appellate court’s role where a first-instance court had already assessed proportionality. It did not require an appellate tribunal to make an assessment where none had been made below.

5. HMRC would likely have sought disclosure, further evidence and cross-examination had proportionality been raised at the FTT. The narrower prejudice in Altrad Services Ltd v HMRC [2023] EWCA Civ 474, which concerned an unchallenged expert report, could not be cured here through limited directions or evidential assumptions. The Tribunal gave limited weight to Mr Javaid’s lack of representation below. It also held that the public interest in tax collection did not displace fairness and proper case management, as recognised in BlueCrest Capital Management (UK) LLP v HMRC [2025] STC 247, referring to Tower MCashback LLP 1 v HMRC [2011] UKSC 19. The importance of finality weighed against reopening the case.

6. In an alternative observation, the Tribunal said that even if the new ground had been allowed, permission to appeal would still have been refused: without evidence of Mr Javaid’s personal circumstances, he could not show that the alleged error would have affected the result.

1. Upper Tribunal (Tax and Chancery Chamber): Refused permission to advance the new proportionality ground and, consequently, refused permission to appeal.
2. First-tier Tribunal (Tax Chamber): In AA Com Limited, Victory Telecom Limited and Kashif Javaid Limited v HMRC [2025] UKFTT 01601 (TC), dismissed the appeals against the personal liability notices and refused permission to appeal on 20 March 2026.