Firth v Revenue and Customs (VAT - Kittel assessments issued) [2025] UKFTT 428 (TC) (15 April 2025)

DECISION

Introduction

1. This decision is issued following a case management hearing which took place on 31 January 2025. This hearing was listed for the application of the Respondents (HMRC), dated 9 December 2024, for a pre-hearing review, to be considered.

2. In the days immediately prior to the hearing on 31 January 2025 and following correspondence between the parties, set out in more detail below, HMRC warned the Appellant that if he did not attend the hearing on 31 January 2025 then they would ask for these joined appeals to be struck out. A written application to this effect was filed and served by HMRC on 29 January 2025.

3. At the hearing on 31 January 2025, I gave an oral decision in respect of part of HMRC's application of 9 December 2024. These decisions were confirmed in writing in a letter emailed to the parties on 3 February 2025. In that Tribunal letter, the Appellant was directed to file any further written submissions that he had no later than 5 p.m. on 7 January 2025. Those submissions were received on 5 February 2025.

4. This decision determines both the remainder of HMRC's application of 9 December 2024, and the Respondents' strike out application of 29 January 2025.

Outcome

5. It is unfortunately necessary to provide a detailed history of these appeals given the nature of the issues to be considered. Due to the length of time that these appeals have been before the Tribunal, that results in an extremely long decision for which I apologise to both parties.

6. It is therefore appropriate to state my decision at the outset. For the reasons detailed below, I have decided to allow HMRC's application to strike out these appeals.

7. These appeals are hereby STRUCK OUT under Tribunal Rule 8(3)(b) as I have concluded that the Appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly.

Factual background

8. The two appeals before the Tribunal were filed in November and December 2016. At this time the Appellant was professionally represented.

9. Each appeal is against a Personal Liability Notice ("PLN") issued to the Appellant. The first PLN was issued to the Appellant in respect of a penalty issued to a company of which the Appellant was sole Director. The second PLN was issued to the Appellant in respect of an LLP of which he was the designated member. The Appellant's grounds of appeal for both appeals were that any errors were not deliberate and that HMRC had failed to show that there were deliberate errors. The total amounts due under the PLNs are approximately £7,400,000.

10. The company and the LLP, while under the control of the Appellant, had not appealed against assessments to VAT or the refusal of the right to deduct input tax on the basis of Kittel. Both the company and the LLP had gone into liquidation by the time HMRC issued penalties, and so the penalties were issued to the liquidators. The liquidators chose not to appeal. The two PLNs were then issued to the Appellant who sought a review of each before making an in-time appeal to the Tribunal.

11. The Appellant's first appeal was acknowledged, initially categorised as Standard, and notified to HMRC. HMRC filed and served their Statement of Case for the first appeal in February 2017, and provided their List of Documents in March 2017. The Appellant's second appeal was acknowledged, categorised as Complex, and notified to HMRC in January 2017. At the end of March 2017, the Appellant's advisor applied for the two appeals to be joined. In April 2017 the first appeal was re-categorised as Complex, the two appeals were joined, and the appeals have proceeded together since. There is no record of the Appellant opting out of the costs regime for either appeal.

12. HMRC filed a consolidated Statement of Case in May 2017, and filed a list of documents in June 2017. No list of documents was filed by the Appellant but the Appellant's then advisor contacted HMRC to discuss case management, and the parties subsequently made a joint application to vary the directions originally issued by the Tribunal.

13. In accordance with those revised case management directions, HMRC served witness statements on the Appellant in July 2017. In September 2017, the Appellant filed his own witness statement, comprising just four pages of text. In his witness statement the Appellant outlined his professional background and the operations of the two businesses he had controlled, explained why he considered the due diligence he had undertaken with regard to suppliers was sufficient, and denied that there had been any deliberate behaviour on his part. While the Appellant did not make any explicit referral to whether he accepted that there was fraud in the supply chains, as contended by HMRC, the Appellant did state:

There was no scope for artificially contrived transactions as HMRC surmise.

14. No statement from any other witness was filed on behalf of the Appellant. There was no suggestion from the Appellant's then advisor that any other witness would be called to give evidence on the Appellant's behalf. At this stage HMRC's intention was to call just two witnesses as their case was that they did not have to call evidence to establish the validity of the underlying assessments because there had been no appeal against those assessments.

15. In October 2017, the Tribunal listed this appeal for a substantive hearing on 7 and 8 February 2018 in Leeds (stated on the Notice of Appeal forms to be the Appellant's preferred venue). However, the Appellant did not serve his skeleton argument on the due date and a week later, on 24 January 2018, HMRC applied for a preliminary hearing to be listed to determine the nature and scope of the substantive hearing listed in February 2018. This application by HMRC argued that the Appellant should not be permitted to challenge the validity of the underlying assessments, or that HMRC should not have to adduce evidence to establish the validity of the underlying assessments, in circumstances where the Appellant was in control of the company and LLP at the time the assessments were issued, and the Appellant had chosen not to appeal those assessments.

16. Later on, on 24 January 2018, the Appellant's advisor notified the Tribunal that the Appellant:

...has developed a serious condition affecting his eyesight. He is unable to drive and can only occasionally function with very partial sight at the moment.

He is obviously very worried at this significant development to his health.

In addition to the obvious and understandable worry at this development, is the further development that his medical practitioners have put him on notice of medical attention (surgery) to remedy, hopefully, his right eye.

17. The Appellant's advisor also gave notice that he would be applying to postpone the February substantive hearing on the basis that the Appellant was expecting a short notice medical procedure which might clash with the hearing dates, or might precede the hearing but result in the Appellant having to attend the hearing while still recuperating. No medical evidence of any kind was provided with this email.

18. Later that day, the Appellant's advisor forwarded to the Tribunal and HMRC an email that he had received from the Appellant, which stated:

My left eye isn't responding to treatment and I am due a review, at Pinderfields eye hospital on the 31 Jan. It now seems I am starting with a cataract in my right eye. I think it is likely they will want to do another procedure on the left eye or remove the cataract as a matter of urgency.

Which brings me to the point, do you think we could or should try to move the tribunal? I don't want to prejudice the case, but I don't want my eyes to get any worse due to any delay. I need some advice or a magic wand!!!!!!!!!!!!

19. HMRC replied the next day to confirm they did not object to adjournment on medical grounds but that medical evidence should be provided.

20. On 29 January 2018, the Appellant's advisor made an application to have the substantive hearing on 7 and 8 February postponed on medical grounds. No medical evidence was provided in support of this application. There had been emails between the parties about whether the substantive hearing could be converted to a hearing of HMRC's application but the Appellant's advisor insisted that the Appellant's presence was required for that application hearing. HMRC, while not agreeing that the Appellant's presence was required, did not oppose postponement.

21. The preceding communications (but not the Appellant's postponement application of 29 January 2018) were referred to Judge Richards who gave directions (communicated to the parties on 30 January 2018) that the two day substantive hearing should be converted into a case management hearing on 7 February 2018 only, in order that HMRC's application about the scope of the hearing could be heard and determined.

22. Following the issue of those directions, the Appellant's application of 29 January 2018 was then referred to Judge Thomas, who agreed that the (now one day) hearing should be postponed. On 1 February 2018, the parties were notified that the hearing on 7 February 2018 was cancelled. On Judge Thomas's instructions, the parties were asked to provide details of their availability for a new substantive hearing. The Tribunal listed a new substantive hearing on 6 and 7 June 2018 in Leeds which was later converted to a one day preliminary hearing, on 6 June 2018, at the joint request of the parties.

23. In about early May 2018, the Appellant had cataract surgery to his right eye.

24. On 4 June 2018, HMRC made an application for an adjournment of the 6 June 2018 hearing as their counsel had become unexpectedly unavailable. The Appellant consented and the June 2018 hearing was adjourned. Tribunal delays prevented re-listing of the preliminary hearing on a date when both parties had availability.

25. On 19 December 2018, the Appellant's advisor provided the Tribunal and HMRC with a copy of a letter dated 2 August 2018, sent from a consultant at Pontefract General Infirmary to the Appellant's GP, concerning the Appellant's eyes. In this letter it was stated:

The Appellant was reviewed at Pontefract General Infirmary 12 weeks after uncomplicated cataract surgery to the right eye. No ophthalmic intervention is indicated for diabetic retinopathy at present but optimal management of all risk factors including diabetic control and BP is important to minimise the risk of sight loss in the future.

Management plan / comments

The diabetic retinopathy is stable in the right eye and OCT macula shows no oedema.

Not possible to grade left eye.

Also under glaucoma clinic.

Your patient will receive routine diabetic eye review in the hospital ophthalmology department.

Follow up appointment

A follow up appointment with a doctor in approximately 6 months in the Medical Retina Clinic at Pontefract General Infirmary will be arranged.

26. In his email the Appellant's advisor stated that the Appellant:

... is largely incapable of acting in this matter currently, or of travelling properly and concentrating sufficiently to give us instruction.

...

Also, in consideration of his escalating costs, [the Appellant] has indicated that he will be self-representing, certainly at this initial stage of proceedings.

27. I am unable to identify, from the consultant letter provided, any reason why the Appellant was unable to travel properly or concentrate sufficiently, or was "largely incapable of acting" more than seven months after "uncomplicated" cataract surgery. That does not mean that the Appellant did not consider himself unwell, or was not in fact unwell, but there is no evidence before the Tribunal that supports the assessment reached by the Appellant's advisor. In particular it seems unlikely that an appellant who was "largely incapable of acting" would decide to take on the task of representing himself if he was that unwell, whatever the financial cost of maintaining an advisor for a short additional period of time.

28. In January 2019, the Tribunal asked the parties to provide their dates to avoid in the period March to October 2019 for a hearing. On 11 February 2019, the Appellant emailed the Tribunal (but not HMRC):

With regards to the letter you sent to [the advisor]

Due to on going health problems and awaiting for another operation on my eye.

Regards a date anytime in October would be best

People 3 max, half a day?

Venue for me would be Wakefield if possible, I am unable to drive at this time so I am reliant on others.

29. The next day the Appellant's advisor forwarded that email to HMRC and the Tribunal, and formally came off the record.

30. On 15 July 2019, the Tribunal listed a one day hearing in Leeds on 1 October 2019. This was to be a hearing of HMRC's application. On 28 July 2019, the Appellant emailed the Tribunal (but not HMRC) seeking postponement of this hearing:

I would like to ask for a postponement on the grounds of my continued poor health.

My eye issues are still unresolved and due to the problems the NHS are having with appointment in general (ie up to a year delay) in my case three cancelled appointments and having to go to a&e with a bleed in my eye.

I still cannot drive and need constant medication. So need the help of other people.

My general health is also poor as you have seen from a previous report.

Due to the importance of this case I feel I would be unable to contribute in a positive manner.

31. This email was forwarded to HMRC who objected to the application, on the basis that no medical evidence had been provided to support the Appellant's application. On 15 August 2019, Judge Morgan directed the Appellant to provide medical evidence and further information to support his postponement application. Judge Morgan's letter to the parties provided:

Judge Morgan has requested that the appellant provides, within 21 days of the date of this letter, further information on his medical condition as it impacts on his ability to attend a one day hearing on this appeal in the next few months, in particular setting out when he expects to receive treatment and supported, if possible, by a recent report by his doctor. The tribunal needs to understand the timeframe within which the appellant may be able to attend a hearing and, if he is unlikely to be able to do so within a reasonable timeframe, to decide how to progress this appeal. The tribunal understands the appellant has difficulties currently in attending a hearing but this matter cannot be postponed indefinitely.

32. The Appellant replied to the Tribunal (but not HMRC) on 30th August 2019:

At this time I am unable to get an appointment with my GP until the 30th. The eye clinic is the 9th. I have asked for a cancelled appointment but you know how the NHS is at the moment. There has been multiple cancellations of my appointments so please be aware. I know this is not what you or I want to hear. My general condition is unlikely to get any better so the report from [the Appellant's GP] still applies. My eyes condition is worse and need to discuss with them where we go from here. I am still unable to drive so I am reliant on others also I have to dictate or have read any letters and emails etc. I feel at this time that I would be at a significant disadvantage as I would need to represent myself.

I have not let [HMRC] know at this time? Should I ???

33. I note that there was no report (or any other correspondence) from any GP on the Tribunal file at this time.

34. The Appellant sent a further email to the Tribunal (but, again, not HMRC) on 16 September 2019:

With ref to the above, I have had an appointment with the eye clinic and they have said that I need laser treatment on both eyes! Before they do that they need to do a scan to get the alignment correct. All of which means more appointments and no guarantees of a positive result but fingers crossed. When I have the report I will send you a copy. At this time I don't know when the procedures be. Do you still need my general health report?

35. The Tribunal forwarded this correspondence to HMRC. On 16 September 2019, HMRC emailed the Tribunal and the Appellant to note that there was still no medical evidence in support of the Appellant's adjournment application. Nevertheless, HMRC proposed that their application for a preliminary hearing be withdrawn in order that the appeal could progress to the substantive hearing. Draft directions were proposed by HMRC to proceed in this way.

36. On 20 September 2019, the Appellant emailed the Tribunal (again not HMRC), stating:

I have sent [HMRC] a copy of the letter from the eye clinic which outlines that I need two procedures to both of my eyes. At this time I don't know all the details, they will need to do scans etc first. Therefore I will not be able to attend 1st Oct. I should be able to get a general health at the end of the month. Do you need anything else and who should I be dealing with?

37. No copy of any eye clinic (or other medical) letters accompanied the Appellant's email.

38. On 26 September 2019, Judge Morgan agreed that the hearing on 1 October 2019 should be postponed. The parties were asked to provide their dates to avoid for a hearing in the period of January to March 2020. On 1 October 2019, the Appellant emailed the Tribunal (but not HMRC):

Late March 2020 would be better for me, however with the health issues that keep rearing their head I cannot be certain.

39. HMRC provided their dates to avoid, and asked that their draft directions be considered. On 14 October 2019, Judge Morgan issued the following directions:

1. Within 14 days of the date of these directions the appellant shall confirm if he intends to continue with this appeal, and if so whether he intends to represent himself or appoint a representative.

2. Following the medical appointments that the appellant has advised he has on 30 September 2019 and 9 October 2019, the appeal is required to provide, by 30 November 2019, medical and such other evidence and representations as the appellant wishes to present (a) setting out the current state of the appellant's health and a prognosis of his condition as it impacts on his ability to prepare for and participate in tribunal proceedings (b) giving details of any special measures that the tribunal could reasonably take to enable the appellant to participate in these proceedings, including by attending a hearing and (c) giving details of when it is reasonable to expect the appellant to be able to participate in a hearing of this appeal.

40. I am satisfied that upon receipt of that letter the Appellant should have understood that he was required to provide a medical prognosis that explained to the Tribunal how his health affected his ability to prepare for, and participate in, Tribunal proceedings. The Appellant should also have understood that sending copies of letters written by one medical professional for the purpose of informing another medical professional, with no reference at all to Tribunal proceedings, did not satisfy that requirement.

41. On 27 October 2019, the Appellant emailed the Tribunal (but not HMRC):

I have dictated this, sorry.

I have no choice but to proceed, I have done nothing wrong. At this time I will represent myself due to the costs.

I have provided [HMRC's lawyer] with up to date medical reports. I have asked him to forward them if required. Please confirm if you have them, I can then answer your second question.

42. There is nothing on the Tribunal file to suggest that any medical reports or letters had been forwarded to the Tribunal. On 18 December 2019, HMRC emailed the Tribunal and the Appellant:

We acknowledge that the Appellant has provide some medical letters but we cannot see that they contain any of the requested information that would allow the Tribunal or Respondents to understand the prognosis or what if any special measures would be required, which one would typically find in a GP or Consultants letter, written to directly answer the points raised.

This is not to be read as a criticism of the Appellant, we wish only to point out that we consider that there is no information on which consideration of these issues could be based and that this risks further delay and the chance of further listed hearings being adjourned with little or no notice.

43. On 17 January 2020, Judge Morgan required copies of the medical letters that the Appellant had sent to HMRC. On 27 January 2020, the Appellant submitted two letters to the Tribunal with the following email (to which HMRC were not copied):

We are sorry to hear that you did not receive medical copies but they were sent to yourselves and HMRC. However we have sent copies under separate cover.

Please note the letter from [the consultant], there are issues with my eyes that are painful and unresolved. It now seems I am intolerant to most of the drops. Reading and comprehension is difficult. Light intolerance is a problem. I cannot drive and looks like I may never be able. The right eye retinopathy is developing. Left eye is blind.

General health is what it is and will not get better.

44. The two letters submitted by the Appellant consisted of a GP letter dated 26 September 2019 and a consultant letter dated 29 November 2019. The GP letter listed the "major problems" suffered by the Appellant from 1976 to the date of the letter, and the medication the Appellant was taking at the date of the letter. The major problems listed included a March 2009 diagnosis of ischaemic heart disease and insertion that month of a coronary artery stent.

45. The November 2019 consultant letter was sent "11 days after uncomplicated glaucoma surgery to the left eye". I can see from the diagnosis section of that letter that the only difference to the assessment of the Appellant's right eye from August 2018 to November 2019 is that, by November 2019, the Appellant had developed posterior capsule opacification (which I understand to be a relatively common and treatable complication which can arise following cataract surgery). In this November 2019 letter the consultant comments that the Appellant's left eye is still painful, and directs the GP to ensure that the Appellant receives preservative free eye drops and specifies appropriate medication. The letter concluded that a follow up appointment would take place in three months. Neither letter mentioned participation in Tribunal proceedings or commented on what adjustments might need to be made to assist the Appellant's participation.

46. On 4 March 2020, Judge Morgan wrote to the parties to express sympathy to the Appellant and to state:

The tribunal cannot, however, delay the progress of this appeal indefinitely. Judge Morgan considers it is in the interests of justice and fairness to adopt the directions set out by HMRC on 16 September 2019 in order to progress matters. She considers that these directions should allow sufficient time for the appellant to comply but should the appellant consider he is not able to do so he must submit, before the specified deadline, a request for additional time with full details of his reasons supported by medical evidence.

47. Judge Morgan continued:

Judge Morgan notes that the Tribunal will seek to list this hearing at a venue as close as possible to where the appellant resides, that the appellant is permitted to bring a friend to the hearing to assist him (assuming he continues to represent himself) and that the hearing judge will take into account the appellants difficulties in the conduct of the hearing such as by allowing additional breaks.

48. On 15 March 2020, the Appellant emailed the Tribunal (not HMRC):

My health is no better and thank you for your concern. With regard to [the directions]. I don't understand any of it and what am I supposed to do. I need people to read and reply for me and they don't understand either.

However I am one of the high risk groups with regard to the coronavirus and therefore meeting would not be sensible for any of us.

49. On 23 March 2020, the UK entered the first lockdown due to the Covid-19 pandemic. On 25 March 2020, the Tribunal issued a general stay of 28 days on all appeals. On 26 April 2020, the Tribunal issued a further general stay of 70 days.

50. On 26 August 2020, Judge Morgan imposed fresh deadlines for the parties to comply with the directions endorsed on 4 March 2020, and clarified to the parties:

[The Appellant] has questioned what action is required from him under the directions. In order to clarify this:

[The Appellant] is not required to take any action at present until he receives from HMRC the evidence they intend to rely on in support of their case. Once he has received HMRC's evidence [the Appellant] will then have three months to provide any evidence he wants to rely on in support of his appeal, whether in the form of any additional documents (in addition to those produced by HMRC) or witness evidence. If either party wishes to call a witness at the hearing of the appeal, that party will need to provide to the tribunal and other party (within the specified time limit for the provisions of their evidence) a witness statement from the witness setting out the evidence the witness will give.

Once the parties have provided their evidence, they are required to produce their listing information so that the appeal can be listed for a hearing. At present the direction can assume that this appeal will be heard at a face to face hearing. However, in light of the on-going difficulties due to the Covid 19 situation, once this appeal is ready to be determined, the tribunal may need to reconsider whether a face to face hearing is possible, on seeking the parties views in light of the circumstances at the time.

51. On 26 October 2020, HMRC applied to the Tribunal, copying in the Appellant, to seek an extension of time until 31 January 2021 to file their witness evidence. This was sought because most of the documents HMRC relied upon were available in hard copy only, and the pandemic lockdowns impacted upon their ability to access these documents. HMRC noted that the evidence related to over 20 companies and in excess of 200 transactions.

52. On 11 January 2021, Judge Morgan granted this application. A few hours later the Appellant emailed the Tribunal (but not HMRC), stating:

I'm not aware of the reason for HMRC request?

53. A Tribunal clerk replied to the Appellant on 22 January 2021, providing a further copy of HMRC's application of 26 October 2020, and noting that the Appellant had been copied into the original application.

54. On 29 January 2021, HMRC made a further application to the Tribunal, copying in the Appellant. HMRC explained that they had served 17 witness statements and exhibits but were seeking an extension until 26 February 2021 for service of witness statements from a further six officers. On 15 February 2021, Judge Morgan granted this application.

55. On 26 February 2021, HMRC made a third application to the Tribunal, copying in the Appellant. HMRC explained that five further witness statements and exhibits had been served on the Appellant but an extension of time until 19 March 2021 was sought in respect of the witness statement of one officer who had been absent following surgery.

56. On 12 March 2021, HMRC confirmed to the Tribunal (and the Appellant) that the final witness statement and exhibits had been served on the Appellant. On 24 March 2021, Judge Morgan retrospectively granted HMRC's application unless the Appellant objected within 14 days. There was no objection.

57. As Judge Morgan had explained, the Directions required the Appellant to file his witness evidence or any additional documents in response three months after receipt of HMRC witness evidence. The deadline for the Appellant was therefore 14 June 2021, the first working day after three months had passed from receipt of the final witness statement and exhibits.

58. On 19 May 2021, the Appellant emailed the Tribunal (but not HMRC) as follows:

I'm sorry but I am still reading, or trying to read the paperwork from [HMRC]. Which means I have not prepared my statements and evidence.

I would like to have more time, say three months at least and then review. You will appreciate that I am doing this on my own.

59. On 7 June 2021, HMRC were asked to comment on this application. HMRC replied to state that they did not object to an extension of three months but:

We would ask [the Appellant] copy HMRC into all correspondence with the Tribunal in future. The Appellant has been copied into this email.

60. The Tribunal (Judge Morgan) confirmed the extension of time had been granted. On 15 September 2021, after those three months had passed, the Tribunal asked both parties to confirm how they wished to proceed.

61. On 20 September 2021, the Appellant emailed the Tribunal (but not HMRC):

I am sorry if this is a late reply but I am still going through the emails. There is a lot of work involved with this and it is super critical. I need to continue with it. To add to my problems my one good eye is creating vision issues which I have a consultation soon. I will notify you of the result. Again sorry.

62. No appointment or consultant letter was sent with that email.

63. On 29 September 2021, HMRC (being unaware of the Appellant's response) applied to the Tribunal for an Unless Order to be issued. The order sought was that if the Appellant did not either serve evidence in reply, or confirm there would be no such evidence, within four weeks then the appeals would be struck out. This email was copied to the Appellant.

64. The next day the Appellant emailed the Tribunal, again not copying in HMRC, to state:

With ref to [HMRC's] email to your selves

My understanding of this situation is I'm a lay person with eye sight difficulties, which are getting worse.

I asked for more time because I am trying to gather evidence on my own. I cannot afford a lawyer, I cannot drive and have had no exposure to legal systems. It is VERY IMPORTANT to me to fight this situation because I have done nothing wrong and my families future is at stake. I need time or money to employ legal aid.

What can be done? What do HMRC hope to achieve?

65. On 19 October 2021, the Appellant sent a further email to the Tribunal and, this time, to HMRC:

I am sorry I am a problem for you and I did reply to yourselves. I need more time.

HMRC took nearly two years to collect information to level at me so I think it only right that I am allowed more time. I am doing this on my own and do not have the man power that HMRC have. My only eye has been giving me trouble which means print is hard to read and it would seem I am having a similar problem to my left eye. I have been prescribed injections to the right to try to correct it.

I would point out that when I had council the Tribunal was cancelled by yourselves.

I still must be allowed to appeal and legal advice say that I should be able to.

66. On 21 October 2021, Judge Morgan directed the Appellant to file and serve his evidence in reply no later than 30 November 2021. The letter dictated by Judge Morgan continued:

Judge Morgan notes that this revised time limit means that the appellant will then have had in total an extension of more than six months to the original time limit for the provision of evidence in reply and that the appellant has had all of HMRC's evidence for his consideration for over eight months, since 12 March 2021 and that a substantial amount of that evidence was provided to him earlier in January and February 2021.

Judge Morgan also notes that [the Appellant] states he has on-going difficulties with his eye-sight but has not provided any estimate of a time frame within which he can comply with the tribunal's directions or any up to date medical information.

Any further application by the appellant for further time to provide his evidence in reply will need to be accompanied by full reasons for the on-going delay including such up to date medical information and a specific proposal for when the appellant will comply.

If the appellant does not comply with this direction by 30 November 2021 and does not provide, before that date, such an application covering the matters referred to above, Judge Morgan will consider whether this appeal should be struck out.

67. On 24 November 2021, the Appellant emailed the Tribunal (but not HMRC) as follows:

Since being diagnosed in September with a macular oedema now also in my right eye it has become difficult to see properly.

There is distortion in my vison and print is blurred to varying degrees. That has slowed my evidence a great deal. I will send medical evidence by post. I am receiving monthly injections to my right eye, the good one! Which hopefully will slow the problem down or cure it. If not then I will lose the sight altogether. Which scares me to death. So I need a delay but I do not know at this stage how long it will take. Sorry.

I do however wish to appeal, I have to. I believe I have done nothing wrong and I also believe the stress of it all has caused a great deal of my health issues.

Again I am sorry and thank you for your indulgence.

68. The Tribunal received two medical letters a week later, sent on by the Appellant. The earlier letter, dated 28 September 2021, was a letter from a consultant to the Appellant's GP. By comparison with the November 2019 letter submitted, I can see from the diagnosis section of this September 2021 letter that the condition of the Appellant's right eye had deteriorated in that time. In November 2019, there was no clinically significant macular oedema, but there is clinically significant macular oedema by September 2021; in November 2019, diabetic macular oedema was absent, but by September 2021 there was moderate diabetic macular oedema.

69. The November 2021 letter, from the consultant to the GP, reported the diagnosis of diabetic macular oedema in the Appellant's right eye and that the third injection into the Appellant's right eye had taken place on 23 November 2021, and been uncomplicated.

70. However, again, neither the September 2021 nor the November 2021 letters were written with regard to tribunal proceedings or to consider adjustments that could better allow the Appellant to participate in these appeals. While I can see that there has been a deterioration in the Appellant's right eye, that does not provide the Tribunal with sufficient understanding to know how that would limit the Appellant's ability to participate in Tribunal proceedings, or what adjustments should be made as a result.

71. It is unclear whether either of these letters were sent to HMRC. On 7 February 2022, HMRC applied to the Tribunal for the appeals to be struck out on the basis that the Appellant had not met the 30 November 2021 deadline. This application was copied to the Appellant.

72. On 25 February 2022, Judge Morgan dictated a letter to the Appellant, copied to HMRC, thanking the Appellant for the medical letters but continuing:

However, Judge Morgan notes that (a) you have not provided any estimate of when you will be able to prepare your evidence in reply yourself or, if it is the case that you will not be able to do so within a reasonable timeframe, any plan to obtain assistance to prepare your evidence in reply, and (b) as set out in previous correspondence, these appeal proceedings cannot be put on hold indefinitely.

Judge Morgan has directed that you must provide, within 14 days of the date of this letter (a) full and up to date information on your ability, as of February 2022, to provide your evidence in reply by 31 May 2022, and up to date medical information in support, such as a view from your doctor on your ability to review and prepare documents, and / or (b) confirmation that you will obtain assistance to enable you to provide your evidence in reply by 31 May 2022. Judge Morgan notes that if you do not provide details of your ability / a plan to provide your evidence in reply by 31 May 2022, it is highly likely that this appeal will have to be struck-out due to the lack of any prospect of it moving forward to a hearing.

73. On 28 May 2022, the Appellant emailed the Tribunal (but, again, not HMRC):

I was hoping by now that my right eye (my only eye) would have improved but it has not. I am however having another round of injections. What this means is reading is very difficult and my general vision has some distortion. I am hopeful that the treatment is successful. I have been unsuccessful in obtaining legal help other than simple advice. They say I should still be able to appeal and have a good case. I hope you agree. Timescale from my point of view is difficult to predict. If the treatment is unsuccessful then I will go blind!!! I will send you the original doctor's letter by post. I assume you will inform with [HMRC].

Maybe if we had met up at the first hearing when I had legal help then this would have been resolved. Again I am sorry for all the delays but I would prefer to be healthy and able to prove my innocence.

Thank you again.

74. The Appellant did not explain whether the "simple advice" was the advice he had received during 2016 to early 2019 when he had a professional advisor acting for him or was more recent advice.

75. On 9 June 2022 the Tribunal received a further medical letter sent on by the Appellant. It is unclear whether a copy was sent to HMRC. This letter, dated 21 April 2022, was from a consultant to the Appellant's GP. In this letter the consultant reports to the Appellant's GP that the Appellant requires further injections into his right eye and that:

Right eye only good eye. Right eye vision have reduced mildly.

76. I can see from the diagnosis section of this letter that whilst the Appellant had moderate diabetic macular oedema in his right eye in September 2021, by April 2022 that had become severe diabetic macular oedema. Similarly, a September 2021 diagnosis of mild non-proliferative diabetic retinopathy has become moderate non-proliferative diabetic retinopathy by April 2022. However, again, there was no reference to participation in Tribunal proceedings or adjustments in the consultant's letter.

77. On 22 June 2022, HMRC made a further application for these appeals to be struck out due to the lack of evidence or other progress by the Appellant. This application was copied to the Appellant. In response, on 24 June 2022, the Appellant emailed HMRC:

I did send an email and medical evidence and asked that they notify you. I am having the same problem with my good eye and reading is difficult, this is dictated. Please allow more time its only fair and legally I am told I can appeal.

78. A few minutes later the Appellant emailed the Tribunal (but still not HMRC) stating:

I have received an email from [HMRC] saying I have not replied to yourself and sent medical evidence . I did ask if [HMRC] could be informed. I need to appeal. It is very important to me.

79. HMRC responded to the Appellant's email, reminding him that he was required to copy them in to all emails sent to the Tribunal, and that they were entitled to see any medical evidence. HMRC asked to be sent a copy of the medical letter sent to the Tribunal.

80. On 30 June 2022, the Tribunal also responded to the Appellant, telling him that he must copy all of his correspondence to HMRC. On 15 July 2022, HMRC were asked if they wished to proceed with their application to strike out these appeals.

81. On 20 July 2022, the Appellant emailed the Tribunal and HMRC:

Please allow the appeal. I need to show I have done nothing wrong.

However you do realise I have no money and getting legal assistance is financially impossible.

I was wondering if we could find another way forward?

82. On 29 July 2022, HMRC made an application to the Tribunal for an Unless Order. The order sought was that unless the Appellant served his witness evidence no later than 30 January 2023, the appeals would be struck out. HMRC also sought a direction that the Appellant notify the Tribunal no later than 9 September 2022 of the steps he had taken to obtain assistance.

83. On 2 November 2022, Judge Morgan directed:

(1) by 2 December 2022, the Appellant shall provide the Tribunal and the Respondents with evidence of the steps he has taken to prepare and / or to obtain assistance to enable him to prepare his witness evidence by the required deadline, and (2) by 28 February 2023 shall serve his evidence upon which he intends to rely in connection with these appeals on the Respondents and shall notify the Tribunal that he has done so, and (3) if either of the directions (1) or (2) is not complied with by the stated deadline, the Tribunal may strike out these appeals due to the Appellants failure to pursue these appeals and to comply with the Tribunals directions.

It is noted that the Appellant has medical problems that make it difficult for him to prepare his evidence. However, it is not in the interests of justice and fairness for these appeal proceedings to be postponed indefinitely. The Appellant must demonstrate that he is taking steps to obtain such assistance as he finds necessary for him to be able to pursue these appeal proceedings within a reasonable timeframe - whether through obtaining legal assistance or assistance from bodies such as the Citizens Advice Bureau or Tax Aid or otherwise. Given the extensions of time already provided to the Appellant to obtain assistance and provide his evidence, it is highly likely that these appeals proceedings will be struck out if the Appellant is not able to demonstrate that he is able to proceed to prepare by 2 December 2022.

84. On 29 November 2022, the Appellant emailed the Tribunal and HMRC:

I am still seeking further advice as nothing has materialised as yet with sound or willing help. Please find below and attached evidence in relation to those enquiries and searches.

I have visited the Tax Appeals for Older People and Tax Aid and Tax Disputes where I was directed by Citizens Advice Bureau. Once I explained the case, they told me that did not deal with HMRC/Tax/Investigations. This has then led me to seek help with ADVOCAT.

I have completed the online forms, they told me a deadline of 3 weeks for a response. That timeframe is now elapsed, I have completed the forms again and attached evidence to show the form complete.

85. The attached response from Advocate was an undated acknowledgement of an application. The attached email from Citizens Advice was dated August 2022. The Appellant also sent pages he had printed that day from the gov.uk website explaining that "legal aid doesn't cover all types of problem" and listing organisations that could help with debt.

86. On 27 February 2023, the Appellant emailed the Tribunal and HMRC:

I have asked for help from many sources and advocate have offered help. They require further information and I have forwarded their emails. This will take time. I know you have all been very patient but I must appeal it is important to me, I believe I have not acted inappropriately. Health wise, nothing will really change for the better. They are now taking about removing the eye.

Please please grant me more time, end of May or June????

87. The email from Advocate dated 21 February 2023, forwarded by the Appellant, was not an offer of assistance but a request for the Appellant to provide more information. The information required by Advocate included questions about the Appellant's means and why he was unable to use the equity in his home, or his home insurance, to pay for legal help. No medical evidence was supplied to the Tribunal by the Appellant to support his statements about the decline of his health.

88. On 19 May 2023, HMRC applied for a direction that if the Appellant did not file his evidence by 30 June 2023, that his appeals be struck out.

89. On 28 June 2023, the Appellant emailed the Tribunal:

I am sorry for the late reply but I have been in hospital with a heart attack. I will send the original report by post. As you will see they are currently unable to insert multiple stents and may never be able to. Prognosis is medication and then review to try and find a way forward (not good) I know you are keen to end all this as am I. The stress of it all is not helping my health, particularly as I believe I am not guilty.

Please, please indulge me for longer. Legal advice say I am entitled to appeal.

However, I am sorry my health is so poor and that I do not have enough monies to properly defend this and believe financially HMRC will not be able to recover enough revenue to cover costs.

90. The document forwarded by the Appellant to the Tribunal was a Discharge Advice Note from The Leeds Teaching Hospitals dated 19 June 2023. It was addressed to the Appellant's GP. The Discharge Advice Note stated that the Appellant had been admitted after two weeks of increased fatigue and breathlessness and had been "diagnosed as a missed STEMI". The Note continued that, following an angiogram, it had been concluded that the Appellant was not a good surgical candidate. The Note concluded:

[The Appellant] will be for lifelong aspirin and 12 months ticagrelor and has been started on hear failure medications (bisoprolol and Entresto). He has been booked in for a cardiac MRI scan as an outpatient and was deemed medically fit for discharge following his angiogram.

91. The appeals were referred to me in August 2023, in the absence of Judge Morgan. On 22 August 2023 I dictated a letter to the parties noting the Appellant's poor health and the delay of more than two years by the Appellant. I explained that as the Appellant wanted to continue despite his poor health, I needed to find a way forward that was fair to both parties. I continued:

At the moment it is not clear to me who, besides himself, [the Appellant] is calling as a witness. Without that information it is impossible for me to understand the scale of the work to be undertaken by [the Appellant].

Therefore, as a first step towards resuming progress on these appeals, I direct as follows:

No later than 21 days from the date of this letter, [the Appellant] should provide the Tribunal and HMRC with a list of the names and roles of the people he will be calling as witnesses.

92. On 23 September 2023 the Appellant sent a holding email to the Tribunal (but not to HMRC). On 30 September 2023, the Appellant emailed the Tribunal (but again not HMRC) as follows:

To clarify my medical condition, I am blind in my left eye and have a similar problem in my right eye and require injections. However, they are suspended because of the heart attack. All this means that reading is difficult plus I need help with these emails and research. The heart attack is being temporarily controlled with medication which makes me feel ill. What I need is stenting or heart bypass but it would need ten stents which has never been done! A heart bypass would require my heart and health to be in a better position! They are pondering a solution.

With regard to your request for a list of witnesses. I have taken legal advice and it is said that I only need to supply that with the evidence.

However, with regard to fairness, according to your booklet of doing a deal / negotiation. It says that if there is no chance of revenues, and I have no money. Then the case can be stopped !! I would like to apply for that.

93. The Appellant's reference to legal advice in this email could only be contemporaneous legal advice given that the Appellant's former advisor did not intend to call any other witnesses and so would not have given advice to the Appellant about supplying witness names.

94. The Appellant's email was referred to me, and a copy sent to HMRC. I dictated a letter sent to the parties on 13 October 2023 in which I noted, again, that the names and roles of the witnesses were required to enable me to understand the scale of the work required. I continued:

The Appellant's response indicates both that he is not minded co-operating with the Tribunal (an impression reinforced by his failure to copy his emails to [HMRC]), and that he has access to legal advice.

On the basis that the Appellant can access legal advice to help in preparing any further witness statements required, and that there is no indication that any witnesses (other than himself) have health issues. I DIRECT as follows:

1. No later than 24 November 2023, the Appellant shall send or deliver to the Respondents and the Tribunal statements from all witnesses (other than himself) on whose evidence he intends to rely at the hearing setting out what that evidence will be ("witness statements"), and

2. No later than 12 January 2024, the Appellant shall send or deliver to the Respondents and the Tribunal any further witness statement setting out his own evidence.

That extended deadline for the Appellant reflects his ill health and gives him twice as long as is usually required. In reality the Appellant has known since 2017 that he is required to prepare witness evidence, so he will have had seven years to prepare. Therefore, if these deadlines are not met then the Appellant will be presumed to be proceeding on the basis of the one witness statement filed on 7 September 2017. No further extensions of time will be granted.

95. I issued further directions requiring both parties to file their listing information no later than 26 January 2024, and concluded:

When filing his listing information the Appellant should additionally file an up to date Fit Note from his GP setting out what he is able to do, so that the Tribunal can make reasonable adjustments to the hearing to take account of the Appellant's ill health.

The Appellant should also state whether he would prefer his appeal to be heard by video link (so he does not have to leave his home) or in a Tribunal venue. If the later, the Appellant should state his preferred venue (Manchester or Leeds) for the hearing to take place.

96. On 14 November 2023, the Appellant emailed the Tribunal and HMRC in response:

In reply there are multiple statements that HMRC have filed and all need investigations, it took two year with multiple resources for HMRC to prepare and file. I do not have legal representation, no money, can only get advise. However, if you are asking about how many witness statements, six plus, but maybe more.

As regards progress, I have been in hospital and awaiting a brain scan but I have been diagnosed with t i a's. Or strokes. Not good. I did ask to apply to have the case reviewed to lack of recoverable money as viewed in your advice booklet.

97. No medical letter was sent with that email. On 1 December 2023, the Appellant emailed the Tribunal and HMRC:

I assume my last email was sufficient to satisfy your deadline. However, I have no reply re applying for (no revenue recovery)

My health is now worse, with no chance of intervention. I will send the letter when I get it dictated.

98. The Tribunal sent a further letter, dictated by me, to the parties on 12 December 2023. I explained to the Appellant that the Tribunal did not review cases based on an appellant's resources so he would need to apply directly to HMRC if he wished to settle the appeals. I also explained that as no witness statements in support of the Appellant's appeal had been received from persons other than the Appellant, the appeals would be proceeding on the basis that only the Appellant would be giving evidence in support of his appeals. In this letter I also reminded the Appellant that the deadline for him to file a further witness statement of his own was 12 January 2024, and that if he did not file further evidence then the appeals would continue on the basis of his statement filed on 7 September 2017. This 12 December 2023 letter concluded:

You are also reminded that, if you wish to apply for reasonable adjustments to be made for the hearings (for example shorter sitting days or sitting on alternate days) then you should make such a request (supported by any necessary medical evidence) when you supply your listing information in compliance with Direction 3.

99. On 2 January 2024, the Appellant provided the Tribunal and HMRC with a copy of a letter dated 21 November 2023 from the cardiology clinic at The Leeds Teaching Hospitals to the Appellant's GP. This letter stated:

Plan from cardiology

1. No further target for coronary revascularisation

2. Further follow up at Pinderfields Hospital - device team to consider primary prevention ICD

3. Continue optimisation of heart failure medication by cardiology team at Pinderfields and community heart failure team

I spoke the [the Appellant] over the telephone for a follow up cardiology consultation. His main symptom is related to diminished exercise tolerance related to a combination of chest discomfort, breathlessness and tiredness. I have explained to him that there is no room for revascularisation with either angioplasty or bypass surgery in view of scarring related to the occluded circumflex and RCA. Diffuse LAD disease is not amenable for any revascularisation. This has been evidenced by no ischaemia on stress cardiac MRI.

I have explained further treatment is related to optimising medications and considering primary prevention with defibrillator. He is known to the community heart failure team and though I do not have any details of Pinderfields notes he is very likely known to the cardiology team at Pinderfields as well.

I have copied this letter to the Pinderfields team for arranging further review and consideration of primary prevention defibrillator. It has to be noted in addition to his medical problems he is having other stressful situation which is making his symptoms worse.

I have not arranged a further appointment at Leeds Hospital but we can be contacted if any queries or concerns in future.

100. While this letter does not constitute a report relating to Tribunal proceedings, it does appear to suggest that there is limited prospect of the Appellant's heart condition improving. The Tribunal acknowledged receipt of this letter and reminded the Appellant that he should let the Tribunal know of the adjustments he wanted to request when supplying his listing information.

101. On 17 January 2024, the Appellant emailed the Tribunal and HMRC:

Thank you for your email dated 12/1. As you can see from the medical letter, I am struggling. I would like to delay all the deadlines. I am unable to comply due to my health, sorry but need to appeal as legally entitled.

102. On 26 January 2024, HMRC applied for a further Unless Order on the basis that the Appellant's lack of compliance was affecting their own ability to comply with subsequent Directions. Included with HMRC's application was an email chain between HMRC and the Appellant. In this email chain the Appellant stated:

Thank you for your email, sorry I am being a pain. My health is a large problem in my life and am unable to do many things. The six potential witness statements need my personal attention hence the impasse, they have indicated that pressure has been applied to stop them being involved!!! Hence it needs my intervention.

Could I ask you what law have I broken (so I can reference it) and if I am pushed into it (and therefore lose at the tribunal) what are the consequences??

103. The Appellant did not explain how it would be possible for anyone to apply pressure to his witnesses when, as he had refused to name them, the identity of the Appellant's witnesses was unknown to anyone other than himself. There was also no explanation of why the statements of other persons would require the Appellant's personal attention.

104. HMRC's application of 26 January 2024 was not referred to me before the Tribunal issued a letter I had already dictated in response to the Appellant's email of 17 January 2024. The Tribunal letter issued on 29 January 2024 stated:

I have seen the Appellant's email asking to delay the deadlines due to his ill health. I have decided to give the Appellant a further seven days to provide his listing information, including making his request for any reasonable adjustments to the hearing. However, I am not going to grant a further stay of this appeal.

My reasons for not staying this appeal any further are that, while I accept the Appellant is unwell, there is no medical prognosis to suggest he will be any less unwell in three or six months time. There is no date when the Tribunal can reasonably expect the Appellant to be in better health. The appeal has already been ongoing for more than seven years, hanging over the Appellant for all of that time, and it is not in the interests of justice for this appeal to be stayed indefinitely. The Appellant has made it clear that he wishes to continue with his appeal (rather than withdrawing to prioritise his health) and so, to respect that desire to continue with his appeal, the only remaining option for the Tribunal is to progress the appeal to hearing.

I am afraid that litigation is inherently stressful. However, I am trying to make this process as comfortable as possible for the Appellant, which is why I invited him to apply for reasonable adjustments to the hearing. The Appellant has a further seven days to tell the Tribunal of any dates in the period 06 May 2024 to 01 November 2024 when he already has booked appointments, and to ask the Tribunal for the reasonable adjustments he considers would make the hearing easier for him. There are no further steps that the Appellant needs to take at this time.

As an example of possible adjustments, the Tribunal could sit only in the mornings or only in the afternoons, rather than sit for a full day. The Appellant has already been asked whether he would be more comfortable in a Tribunal venue or would prefer to appear by video link from his own home so he can avoid travel. There may be people the Appellant would like to have attend with him, if he attends in a Tribunal venue. The Appellant has previously referred to being able to access legal advice so he may wish to have that person or persons attend with him. There may be other adjustments that occur to the Appellant that he would like to ask for. Obviously, the Appellant will be afforded any breaks he needs during the course of the hearing to take medication.

The file will be referred back to me once the seven days have passed so that the hearing date(s) can be fixed. Both parties should note that, in the absence of any other request, it is likely that this hearing will be booked as an in-person hearing in the Tribunal's Manchester venue.

105. On 31 January 2024, the Appellant emailed the Tribunal (and forwarded this email to HMRC):

In reply: the reason I need a delay is I can not travel very far and need to sit down with the witnesses etc.

My health is poor (heart attack single sited and the good eye is in poor condition ie reading difficult). If the hearing had gone ahead in the beginning I had legal representation and my health. All gone now. In reference to dates etc?? Use dates as late as possible. Wakefield is better for me (travelling is hard cannot drive) why are we doing this I have no money so why commit all this time and your budget to it. Can we not find a better way. I could help HMRC solve the problem of missing trader fraud in the metal trader sector, which I have suggested before.

106. On 7 February 2024, HMRC wrote to the Tribunal and the Appellant to remind him that they had provided him with a link to HMRC's ADR process on 22 November 2022 but that he had not yet made an application. HMRC provided a further link and explained that a decision about acceptance into HMRC's ADR process would be made by the ADR team.

107. On 12 February 2024, the Tribunal issued a letter from me to the parties. In this letter I acknowledged the Appellant's desire for a hearing in Wakefield and agreed that the substantive hearing would be in Wakefield, if that was possible. I informed the parties that if it was not possible to list in Wakefield then the substantive hearing would be in Leeds, 15 minutes by direct train from Wakefield. In this letter I also reminded the Appellant that the deadline for him to call any other witnesses had passed and so if he wanted to call any other person to give evidence then he needed to file that person's statements as soon as possible and make an application for permission to call that person. In addition, I informed the Appellant that he could seek a witness summons if a witness did not agree to give evidence, and a copy of the Tribunal Practice Statement on seeking a witness summons was enclosed with the letter. The letter concluded:

Finally, I have noted the Respondents' application for an Unless order. I am not going to issue an Unless Order at this stage as I take the view that the Appellant is, albeit slowly, attempting to co-operate with the Tribunal. However, as is obvious, the Respondents are at liberty to re-apply if they consider that the Appellant is failing to comply.

The Tribunal will now attempt to list the hearing of this appeal. If there is any further listing information either party wishes to have taken into account, then that should be supplied within seven days of the date of this letter. Otherwise, these appeals will be listed on the basis of information currently available to the Tribunal.

108. On 23 February 2024, HMRC provided their listing information based on a hearing where all of their witnesses were required to attend for cross examination. HMRC also applied for further Directions, including the obligation on the Appellant to complete a Fairford Statement.

109. On 4 March 2024, I allowed HMRC's application for Directions but with an amendment to the obligation to provide a Fairford Statement. The letter to both parties explained:

In respect of Direction 2, Judge Bailey accepts that HMRC are wholly correct in suggesting that a Fairford Direction would (and should) usually be issued in an appeal of this kind. Judge Bailey also accepts that HMRC (and the Tribunal) will be put to greater expense and inconvenience if such a Direction is not issued, and that the hearing will be much longer as a consequence. However, given the Appellant's ill health and lack of representation, and the need for him to re-read the evidence that has been served by HMRC in order to respond, Judge Bailey is not persuaded that the Appellant is capable of providing the response usually required.

Therefore, Judge Bailey has amended Direction 2 of the Directions sought by HMRC on 23 February 2024, to state that [the Appellant] should provide the statements sought if he able. [The Appellant] will understand that, if there are parts of HMRC's case that he accepts are correct then stating that that is accepted will mean that the hearing of this appeal will be shorter, and so less stressful for him. I am sure [the Appellant] also appreciates that, however much he might be inclined to put HMRC to proof of every aspect, if he legitimately can shorten the hearing, then that will benefit his own health and wellbeing.

110. The letter continued to explain that the parties should keep the period of 7-25 October 2024 free for the substantive hearing; the Appellant was reminded that he should let the Tribunal know as soon as possible if he intended to apply for a witness summons.

111. On 22 March 2024, HMRC reminded the Appellant that he had not complied with Direction 1 (to confirm whether he could access a bundle electronically or to provide a postal address for service of the bundles). On 3 April 2024, the Tribunal chased the Appellant for his compliance. The Appellant replied later that day to say that he had replied to HMRC and that he had been ill. On 26 March 2024, the Appellant confirmed to HMRC that he had a laptop.

112. On 18 April 2024, HMRC emailed the Appellant about the Fairford Statement (which the Appellant had not submitted). HMRC explained what was required, and that the hearing would be shorter if not all of HMRC's witnesses were required for cross examination. That email concluded:

For the avoidance of doubt, the officers that are referred to in the table give evidence about fraudulent defaulters and buffer companies in your transaction chains and so, their evidence deals with the fraudulent tax loss of others. Accepting their evidence would mean that you accept that [the LLP] and [the company] engaged in transactions connected with fraud. However, accepting that evidence would not prevent you from arguing that neither company (nor you as their controlling mind) knew or should have known of the connection to the fraudulent tax loss, which we believe is really the crux of your case.

Please could you confirm your position by 3 May 2024.

113. On 29 April 2024, the Tribunal wrote to both parties to explain that it was experiencing difficulties in booking a three week hearing in either Wakefield or Leeds, but that a Leeds venue could potentially accommodate a hearing one week at a time, with an intervening week off. Both parties were asked to comment on this proposal, and also to provide unavailable dates for a period up to 25 July 2025. (The Wakefield venue subsequently confirmed that it was unable to accommodate a tax hearing of this length at any time.)

114. HMRC replied to the Tribunal on 10 May 2024, providing their dates to avoid and noting that the Appellant had not responded to their latest correspondence regarding the Fairford statement. On 14 May 2024, the Appellant wrote to HMRC in response to their letter concerning the Fairford Statement:

... I cannot agree to accept the witness statement, implies guilt and the tribunal is supposed to be unbiased. If reducing the tribunal's workload is the aim then they should delete some or all the statements. Surely it would be better to find an agreement so i/we can move on. I don't think you/they realise how ill I am. I am supposed to avoid stress.

115. HMRC's updated dates to avoid were provided to the Tribunal on 28 May 2024. On 6 June 2024, the Tribunal notified both parties that the hearing had been listed for 3-21 March 2025 at Leeds Employment Tribunal. On 25 June 2024 the Appellant emailed the Tribunal and HMRC:

My understanding is that I requested the latest date possible. Which I believe is November 2025?

116. The Tribunal clerks understood this to be an application for postponement and asked HMRC for their views. On 16 July 2024, the Appellant additionally emailed the Tribunal:

Not sure what you are asking me

I originally asked for a November 2025 date??

117. HMRC opposed postponement of the substantive hearing. On 19 July 2024, on my instructions, the Tribunal wrote to both parties to explain the Appellant had asked for the hearing to be as late as possible when asked about a hearing period that ended November 2024. As the hearing had been listed for a date in the following year, the hearing would remain listed for 3-21 March 2025.

118. On 23 September 2024, HMRC applied for permission to rely on adoption witness statements as, due to the passage of time, some of their original witnesses were no longer HMRC officers. The Tribunal granted this application unless the Appellant objected within 14 days.

119. On 30 September 2024, the Appellant emailed the Tribunal (but not HMRC):

I'm probably wasting my time but it seems to me unethical to have someone else to present a third parties evidence. Surely it should be withdrawn.

120. I considered HMRC's application and the Appellant's objection, and concluded that HMRC's application should be allowed. That decision was communicated to the parties in a letter dated 29 October 2024, setting out my reasoning. That letter concluded:

This is a convenient time to remind [the Appellant] that if he wishes to rely on witness evidence to support his appeal, he should file and serve those witness statements as soon as possible.

121. On 9 December 2024, HMRC made an application for the pre-hearing review. In this application, copied to the Appellant, HMRC referred to their concerns about:

- the Appellant's health and ability to participate in a substantive hearing,

- the Appellant's lack of meaningful engagement with the appeals, and

- amendments to the listing timetable.

122. On 11 December 2024, the Appellant emailed the Tribunal and HMRC in response to HMRC's application:

I resent the accusation I have not engaged with yourselves or the tribunal. I have taken legal advise and I have a legal right to appeal the case you refer. MY HEALTH IS A BIG PROBLEM. The medical evidence has been supplied. Virtually all written response have to be dictated/written by others, due to my poor eyesight and ill health. I have in the last few months been in hospital with two heart attacks, one for passing out/collapse. The prognosis I would have thought was obvious, apparently I am not eligible for a intervention / operation due to poor condition of heart. Medication is all they can offer me, obviously not very effective. I will be able to, when I can get the required assistance to send copies of the discharge letters.

Has regards supplying names and written evidence, I has been implied that pressure has been applied / inferred not to get involved. Also again legal states I don't need, at this stage, allow that to be revealed.

I'm not sure what the review you want is, please understand I am not legally trained.

123. HMRC had provided dates to avoid when making their application. On 12 December 2024, the Tribunal asked the Appellant to specify any dates on which he could not attend a hearing in Leeds. The letter continued:

The Tribunal also notes the updated information provided by HMRC about your health. At this case management hearing, you will have the opportunity to ask the Tribunal for reasonable adjustments to be made to the substantive hearing due to your health. Please consider, in advance of the case management hearing, what reasonable adjustments you consider would be helpful. By way of example, the Tribunal can direct a short break each morning and afternoon.

Please also consider whether you would like to bring someone to this case management hearing, either for support or to help take notes.

If someone else will represent you at this case management hearing, please tell the Tribunal the name and contact details for that person.

124. On 14 December 2024, the Appellant replied to the Tribunal (but not HMRC):

Due to my health I do not think I would be able to attend. Also you do not say where it is?

125. As the Appellant had not provided any dates to avoid, I instructed the Tribunal clerks to list a hearing of HMRC's application, in Wakefield in preference to Leeds. On 31 December 2024, the Tribunal wrote to both parties:

A case management hearing has been booked on 31 January 2025 at Wakefield Civil and Family Justice Centre, 1 Mulberry Way, Wakefield WF1 2QN with a start time of 2 PM.

Judge Bailey has noted the Appellant's email concerning his ill health. This hearing has been booked to be as close as possible to the Appellant's home address to help him to attend more easily. If the Appellant confirms that he has a suitable screen for a video hearing (for example a laptop, tablet or personal computer but not a mobile telephone) and if the Appellant would prefer to attend by video link then this hearing can be converted to a video hearing. In the absence of confirmation from the Appellant, this hearing will proceed as booked above.

The Appellant may find it helpful to bring another person, a friend or relative, to assist him at this case management hearing.

In the meantime, the Appellant may also wish to ask his G.P. to provide a letter setting out the G.P.'s review of the Appellant's current health, and how this affects the Appellant's day to day activities. If available in time, this can be brought to the case management hearing to assist the Tribunal in deciding reasonable adjustments for the substantive hearing.

126. On 1 January 2025, the Appellant emailed the Tribunal (but not HMRC) to ask the purpose of the hearing. A Tribunal clerk replied the next day, providing a further copy of HMRC's application of 9 December 2024.

127. Later on, on 2 January 2025, the Appellant again emailed the Tribunal, with copies of medical letters. The Appellant again asked the purpose of the hearing.

128. The medical letters sent by the Appellant did not transmit properly. The pages received were the first page and a vertical half of the seventh page of an eight page Discharge Advice Note dated 8 October 2024, an eye clinic letter from a consultant to the Appellant's GP dated 28 October 2024, and the sixth page of a seven page Discharge Advice Note dated 1 November 2024.

129. Taking these in chronological order, the first page of the 8 October 2024 Discharge Advice Note provides:

Reason for admission / presenting complaint

Has been having a decline of his exercise tolerance since his late presentation STEMI last year - now baseline is less than 100 yards on the flat and unable to complete one flight of stairs.

However, his STEMI in 2023 presented with overt fatigue - there was no chest pain. Has never needed to use his GTN since 2009.

130. It is unclear from this Note whether the Appellant suffered a further heart attack in October 2024, or whether he attended hospital because he believed he was suffering a further heart attack.

131. I can see from the diagnosis section of the October 2024 eye clinic letter that the condition of the Appellant's right eye has slightly improved since April 2022. What was severe diabetic macular oedema in April 2022 has improved to moderate diabetic macular oedema, with all other diagnoses remining the same.

132. The sixth page of the seven page November 2024 Discharge Advice Note states that the Appellant's primary diagnosis was "coronary artery disease" and "heart failure with severe LVSD".

133. On 27 January 2025, the Appellant emailed the Tribunal and HMRC:

I am disappointed that no one has replied telling about what the hearing is about and who will be there. The reply said I need to bring document etc.

As I have said I spent two months in and out of hospital with heart attacks. I was hoping I would well enough to tolerate a short review / discussion but it would seem its a interrogation that I mentally and physically can not cope with. You have the medical evidence but either you do not understand it or are ignoring it. Please understand I am trying to react to your requirements. So please do not take offence. A GP report from my GP takes months to get an appointment and the letter from the consultants are already in your possession

In conclusion I can not attend but I have legal right to appeal so I do not want you to strike off the appeal.

I am sorry this not what you want to hear.

134. On the morning of 28 January 2025, HMRC emailed the Tribunal and HMRC, attaching a further copy of their application and a supplemental bundle which contained all the medical letters that had been sent to them. HMRC reiterated the points previously made by the Tribunal regarding attendance and noted that the hearing was only half a day. HMRC's email concluded:

[The Appellant] has already been put on notice in two separate emails that, without a good reason for non-attendance, HMRC may apply to strike out the appeals if he fails to attend the case management hearing. In light of [the Appellant's] email below, we now confirm that we will proceed with an application to strike out, to be heard on Friday should he fail to attend. This application will be filed and served in due course.

135. On the afternoon of 28 January 2025, the Tribunal wrote to the Appellant, copied to HMRC, to explain that only some of his medical letters had been received. The letter continued:

The hearing of 31 January 2025 will not be an interrogation. It is common for there to be a pre-hearing review in advance of long hearings. A pre-hearing review ensures that both parties are prepared for the full hearing. This pre-hearing review is your opportunity to confirm that you do wish to cross-examine HMRC's witnesses and to confirm to the Tribunal that you will be the only witness you will call. In addition, it is your opportunity to ask the Tribunal for reasonable adjustments, due to your health, that you consider will help you during the hearing. It is also your opportunity to understand more about how the substantive hearing will proceed, and to ask questions ahead of the substantive hearing. This will help you in deciding who, if anyone, you wish to bring with you for the substantive hearing. Therefore, please consider carefully before deciding that you cannot attend.

If you conclude that you are not able to attend in person, you are reminded that you have the option to attend by video if, no later than 5 p.m. on 29 January 2025, you confirm to the Tribunal and HMRC that you have sufficient IT equipment (including two screens) and you complete and return the attached Video Hearing Attendance Form to the Tribunal.

In addition, you can appoint someone to attend on your behalf if you do not attend. Please ensure that you sign and return Form T239 if you would like another person to attend on your behalf. Please note that this form can be completed at the hearing if you are attending with the person you have appointed.

136. The requirement for two screens was to ensure that the Appellant could access the case management hearing bundle of documents that HMRC had sent to the Appellant electronically as he had earlier confirmed he had a laptop but not confirmed his postal address.

137. About an hour after the Tribunal's email, still on 28 January 2025, the Appellant emailed the Tribunal and HMRC:

I ask again to have a delay of the hearing because I can not physically or mentally cope for even half a day.

Referring to the medical evidence it is made clear that medically I can not cope with the stress. Also the missing pages I can supply but they refer to several pages of medication I need to survive. I would also remind yourselves I can not have an operation to fix the damage heart.

I do not have the necessary equipment that you have just told me I need for a video link.

Again I would remind yourselves we have a review before with my legal representative. I am unable to afford legal represented for the hearing.

As a group you don't seem to understand how difficult this all is for me. Surely we can find a solution that we agree on, particularly as I have no money.

138. When considering the Appellant's application to adjourn the case management hearing on 31 January 2025, I reminded myself of the comments of Judge Mosedale in Banerjee v HMRC [2015] UKFTT 85 (TC) which, in part, concerned an application to adjourn. Judge Mosedale said:

43. Therefore, even if we had accepted she was too ill to attend, we would have refused postponement on the grounds that real injustice was being done in the delay in hearing this case already delayed by over two years (in reality 8 years) and a further delay was unlikely to serve any purpose in that there appears to be little prospect that the appellant will ever consider herself well enough to attend the hearing. It is inimical to justice to continually adjourn a case without any real prospect that the circumstances underlying the request for the adjournment will ever change.

139. I decided not to grant an adjournment.

140. On 29 January 2025, HMRC filed an application for these appeals to be struck out if the Appellant did not attend the hearing on 31 January 2025. A copy of this application was sent to the Appellant.

141. Later on, on 29 January 2025, the Tribunal wrote to both parties, communicating my decision to refuse the Appellant's application. The letter to the parties explained my decision as follows:

While it would be appropriate for a hearing to be postponed on grounds of ill health if there was a prospect of the person who is not well recovering, sadly here [the Appellant] has stated that his health will not improve. In such unfortunate circumstances, it is appropriate for proceedings to continue because the situation will not improve.

The Tribunal cannot compel [the Appellant] to attend the hearing, and I understand that the prospect of attending is very stressful for him even with a friend or family member to support him. However, part of the purpose of the pre-hearing review is to ensure that adequate adjustments are made to the substantive hearing to assist [the Appellant] with his poor health. This half day hearing may also help to alleviate concerns that [the Appellant] may have about the substantive hearing, and it will enable him to ask questions about how the substantive hearing will progress. It is likely to be a different experience being a litigant in person to having attended with legal representation.

I am concerned that, if [the Appellant] considers himself unable to attend a half day hearing in Wakefield, then there are limited prospects of him being able to attend a three week hearing in Leeds in March. I understand why [the Appellant] does not wish to withdraw from these proceedings given the financial consequences for him. However, a person who does not wish to withdraw an appeal is expected to participate in the proceedings that arise from his appeal.

Therefore, if [the Appellant] does not want to withdraw his appeal then the Tribunal has to progress his appeal to a hearing. While settlement seems unlikely, if [the Appellant] wants to try to discuss this with HMRC, then his best prospect of achieving this is while all parties are together in the tribunal in Wakefield.

142. At about midday on 30 January 2025, the Appellant emailed the Tribunal and HMRC to ask again for an adjournment:

Please understand I want to attend I have a legal right to appeal. I believe an in person discussion is desirable / necessary.

Therefore I ask for a delay. I have had to cancel / charge several hospital / doctors / eye clinics because an hour / half an hour is as much as I can cope with. Please, please understand. Again I remind you that this could have been resolved when this all started.

Yes I need to apply to HMRC direct and have asked for contact details but know seems to wish to engage. I believe there is a form and advise leaflet available. Let me at least try. SORRY BUT DO APPREACH YOUR INDULGENCE.

143. On 30 January 2025, the Tribunal wrote to both parties:

[The Appellant's] renewed application for postponement is refused by Judge Bailey the reasons previously given.

However, at the hearing on 31 January 2025, [the Appellant] is entitled to ask for a short break in proceedings, if this is required. [The Appellant] is not expected to manage two hours in a hearing if this is not possible for him.

If [the Appellant] attends on 31 January 2025, then it will be possible for Judge Bailey to assess his needs for the substantive hearing. Any friend or relative of [the Appellant] who can speak to [the Appellant's] needs in this regard is also welcome to attend and speak at the hearing on 31 January 2025.

In addition, HMRC are expected to provide appropriate contact details, at the hearing on 31 January 2025, so that [the Appellant] has a name, email address and telephone number to make direct contact with HMRC if he wishes to do so.

144. Late on the morning of 31 January 2025, the Appellant emailed the Tribunal and HMRC:

I am unable to attend.

145. The Appellant did not state whether this was on medical grounds or for any other reason.

146. At the beginning of the hearing on the afternoon of 31 January 2025, it was necessary for me to decide whether the hearing should proceed despite the Appellant's non-attendance. I decided that the Appellant was aware of the hearing and he had not adequately explained why he was not attending. The Appellant had not provided appropriate medical evidence that showed he could not attend for medical reasons on 31 January 2025. HMRC had attended and were ready to proceed, and there were a number of issues to be considered in advance of the substantive hearing. I decided it was in the interests of justice that the hearing should proceed.

147. At the hearing on 31 January 2025, HMRC made submissions in support of both of their applications. Very fairly, HMRC also drew my attention to points that were in the Appellant's favour. After the hearing I dictated a letter to the parties, confirming in writing the oral decisions that I had reached and communicated during the course of the hearing. That letter, issued to the parties on 3 February 2025, included the following:

Following the case management hearing at Wakefield on 31 January 2025, which [the Appellant] did not attend, Judge Bailey directs as follows:

The hearing on 31 January 2025 was intended to be a pre-hearing review, at which the Tribunal would, amongst other matters, consider the reasonable adjustments to be made to the substantive hearing due to [the Appellant's] ill health.

At the hearing on 31 January 2025, the HMRC made an application for these two appeals to be struck out on the basis that [the Appellant] had failed to co-operate with the Tribunal to such an extent that the Tribunal could not deal with the proceedings fairly or justly. HMRC had given prior warning to [the Appellant] that they would make this application if he did not attend. [The Appellant] was sent a copy of the application, which was filed on 29 January 2025.

On 30 January 2025, [the Appellant] emailed the Tribunal and HMRC to say, amongst other things, that he had a "legal right to appeal". [The Appellant] did not refer to the corresponding obligation to co-operate with the Tribunal and the other party, and to ensure that Tribunal litigation is progressed appropriately without undue delay.

[The Appellant] also stated that he wanted to attend an in-person hearing (as the hearing on 31 January 2025 was), and [the Appellant] applied for a postponement of the hearing on 31 January 2025 on the grounds of his ill health. I had explained why a postponement was not appropriate in this case on 29 January 2025, when refusing an earlier postponement application made by [the Appellant]. The renewed postponement application was refused later on 30 January 2025.

As [the Appellant] did not attend the hearing on 31 January 2025, he was not able to make spoken submissions in response to HMRC's application for these appeals to be struck out.

Therefore, no later than 5 p.m. on 7 February 2025, the Appellant shall provide the Tribunal, and HMRC, with any further written comments he wishes to make in response to HMRC's application for this appeal to be struck out.

My decision on whether to strike out these appeals will be made after 5 p.m. on 7 February 2025, whether or not [the Appellant] responds with further submissions.

148. On 5 February 2025, the Appellant emailed the Tribunal and HMRC to provide his written response to HMRC's application that the appeals be struck out. The Appellant wrote:

In reply, as I have asked please don't dismiss the appeal. I have the legal right. I am very sorry I missed the hearing but I am unable to endure 2/3 hours of interrogation, but a face to face debate appeals especially if in Wakefield. If it could be 4 weeks ish later, hopefully I will be able to cope.

Also please don not say or imply I am not cooperating, please.

149. No medical (or other) evidence accompanied that email to explain why the Appellant anticipated he would be able to attend a hearing in Wakefield at the beginning of March 2025 despite not having attended a hearing in Wakefield on 31 January 2025. The Appellant did not explain why he still considered he would face an interrogation on 31 January 2025 when he had been told (in the Tribunal letter of 28 January 2025) that this would not happen.

150. The Appellant also did not expand on what he meant by a "face to face debate", and why that would not, or could not, have occurred at the hearing on 31 January 2025, had he attended. The Appellant is aware that there is already a hearing listed approximately four weeks after 31 January 2025 (the substantive hearing listed to commence in Leeds on 3 March 2025). In the circumstances I consider the most logical and consistent interpretation of the Appellant's email is that he is asking for a further pre-hearing review hearing to be re-listed in four weeks' time, in Wakefield, and therefore he is also requesting the postponement of the substantive hearing.

Decision

151. The matters to be considered at the hearing on 31 January 2025 can be summarised as the four issues set out in HMRC's application of 8 December 2024:

1. The reasonable adjustments to be made due to the Appellant's health

2. Clarification from the Appellant of the case he was making, given he had not completed the Fairford Statement

3. Whether witnesses could attend remotely

4. Whether the listing could be varied so that the Tribunal did not sit on one specific day in the period listed.

152. In addition, as the Appellant had not attended, HMRC wished to pursue their application of 29 January 2025 for these appeals to be struck out on the basis that the Appellant had failed to co-operate with the Tribunal to such an extent that the Tribunal cannot not deal with the proceedings fairly and justly (issue 5).

153. As the Appellant did not attend the hearing, limited progress could be made in respect of issues 1 and 2. I decided that in the absence of any objection from the Appellant, HMRC's application in respect of issues 3 and 4 would be granted. An oral decision to this effect was confirmed in writing in the Tribunal letter emailed to the parties on 3 February 2025.

154. I was unable to make a decision in respect of issue 5 at the hearing on 31 January 2025 as an appellant be given an opportunity to make representations before a decision is taken to strike out an appeal under Tribunal Rule 8(3)(b). HMRC argued that the Appellant had been given notice of the application and so had had that opportunity. However, I was not satisfied that when the Appellant received HMRC's application on 29 January 2025, he understood that he should respond to the Tribunal in any more detail than simply stating that he did not want his appeals struck out. Therefore, I decided that it would be appropriate to give the Appellant a specific opportunity to make written representations. The Appellant's response of 5 February 2025 is set out above.

155. Before I can directly address issues 1, 2 and 5, it is necessary to consider the Appellant's health, and explain my conclusions in this regard.

The Appellant's health

156. The Appellant has provided some medical letters that give some information about his health. However, I consider that evidence falls short of what is required for the Tribunal to understand both the extent and severity of the Appellant's health, and his ability to participate in a Tribunal hearing. At paragraph 36 of Levy v Ellis-Carr [2012] EWHC 63 (Ch), the requirement to provide appropriate medical evidence, usually in a specific report, was set out by Mr Justice Norris. By way of introduction, at paragraph 33, Mr Justice Norris explained:

Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.

157. Turning to the appeal that was before him, at paragraph 36, Mr Justice Norris considered the GP letter provided in the appeal before him, and continued:

But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.

158. This passage setting out the need for appropriate medical evidence has been endorsed in many other cases. I do not expect the Appellant to have been aware of Levy v Ellis-Carr or this passage. However, the essence of what was required and the need for any medical evidence to address the extent to which he could participation in a tribunal hearing, was made clear to the Appellant in the Tribunal letters of 14 October 2019, 21 October 2021, 25 February 2022, 13 October 2023 and 31 December 2024.

159. Despite that Tribunal guidance, the Appellant has provided little more than a selection of consultant letters and discharge advice notes to the Tribunal in support of his contentions about the extent of his illness. As noted in the Factual Background above, none of the medically qualified people writing those letters comment on how the Appellant's health affects his ability to participate in Tribunal proceedings. Even where there is a comment about stressful situations (in the letter dated 21 November 2023 from the cardiology clinic), I am required to make the assumption that this is intended to be a reference to Tribunal proceedings, instead of some other stressful situation in the Appellant's life.

160. In his email to the Tribunal on 27 January 2025, the Appellant suggested that the Tribunal either did not understand or was ignoring the medical letters he had sent. I hope the Factual Background above demonstrates that I have not ignored those letters. However, the Appellant is correct that, as a non-medically qualified person, I am not able to understand the state of the Appellant's health or the impact that has on him, from letters written using medical terminology from one medical professional to another medical professional. It is for that reason that a report, specifically addressing the Tribunal, is required. The Appellant also states in that 27 January 2025 email that it takes months to get an appointment with his GP. However, the need for an appropriate report was made clear to the Appellant as long ago as October 2019. I do not accept that the Appellant has been unable to book a GP appointment in the more than four years that have passed since October 2019.

161. Without appropriate evidence, I cannot ascertain the extent of the Appellant's health issues or how the state of his health affects his ability to participate in a hearing. The Appellant has given his own assessments of his health and capabilities on several occasions but the difficulties for a non-medically trained person in appreciating the severity of an illness, and how this affects capacity to undertake certain tasks, apply as much to the non-medically trained Appellant as it does to the Tribunal. I do not accept that the Appellant, who is not medically qualified and who also says that he has had no exposure to legal systems (email of 30 September 2021) is able to give either a reliable assessment of his own health or an accurate report on how his health impacts his ability to participate in Tribunal proceedings.

162. Despite the lack of appropriate evidence from the Appellant, I have considered the medical letters that have been provided and my understanding of those letters is set out in the Factual Background above. On the basis of those letters I consider that there is sufficient medical information for me to accept that the Appellant has suffered ill health in the past. I also accept, on the balance of probabilities, that the Appellant is not in good health now (albeit I cannot be sure of the exact state of his health now, or understand the implications that has for his ability to participate in a hearing).

163. I also conclude, on the balance of probabilities, that the Appellant's health will not improve, or will not significantly improve. This conclusion is based upon (1) the underlying health conditions set out in the GP letter of 26 September 2019, (2) the cardiology clinic letter of 19 June 2023 in which it was stated that the Appellant was not a good surgical candidate and would require medical management, and (3) the gradual overall decline (despite slight recent improvement) in the diagnoses of the Appellant's right eye from the eye clinic.

164. Having reached those (limited) conclusions, I turn to the outstanding issues from the hearing on 31 January 2025.

The first issue was the reasonable adjustments to be made due to the Appellant's health.

165. HMRC drew my attention to the comments of Mr Justice Warby in paragraphs 26-27 of Dekker v Hopcraft [2015] EWHC 1170 (QB):

26. In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP's letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: "It is important to note that a person's inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be." At [58] Vos J indicated that he took into account the contents of the defendant's litigation correspondence, observing that he "has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case".

27. The third main qualification to Neuberger J's observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.

166. In the absence of appropriate medical evidence from the Appellant to address this, I cannot consider the suitability of any reasonable adjustments (either alone or in combination) because the information available is too limited for me to reach a conclusion. By way of example, looking only at the Appellant's heart health, while I can see that the Appellant suffers (or reports) shortness of breath if he walks 100 yards and also that he cannot climb a flight of stairs (cardiology letter of October 2024), that does not assist me to understand how tiring the Appellant will find it to sit in a tribunal hearing room, or how frequently he will need to take breaks. Short breaks have been offered to Appellant several times but no medical report has been provided by the Appellant to explain how frequent or how long such breaks should be, or whether they would be effective in enabling his better participation.

167. The hearing on 31 January 2025 was an opportunity for the Appellant and the Tribunal to better understand the Appellant's needs in the absence of an appropriate medical report. The hearing had been arranged in Wakefield to suit the Appellant; the venue was approximately 15 minutes by taxi from the Appellant's home address. The Appellant was assured (Tribunal letter of 30 January 2025) that he could take short breaks at the hearing on 31 January 2025, and that he would not be expected to participate for as long as two hours at a time if this was not possible. However, even though this would seem to accord with the Appellant's own assessment that he could manage an hour or half an hour at a time (email of 30 January 2025), the Appellant did not attend the afternoon hearing on 31 January 2025.

168. As the Appellant did not attend, it remains the case that there is insufficient information available for reasonable adjustments to be properly considered. I return to the issue of reasonable adjustments below.

The second issue was clarification from the Appellant of the case he was making, given he had not completed the Fairford Statement

169. The appeals before the Tribunal are against PLNs. However, those PLNs make the Appellant personally liable for penalties raised following assessments raised on the Kittel basis. In a Kittel appeal the issues before the Tribunal can be summarised as:

– was there a tax loss?

– was that loss attributable to fraud?

– was that fraudulent loss connected with the appellant's transactions?

– did the appellant know, or should the appellant have known, that its transactions were connected with the fraudulent evasion of VAT?

170. The Appellant's Notice of Appeal suggests it is only the fourth of those issues that is a live issue between the parties. The Appellant's previous advisor suggested a time estimate for the substantive hearing of just two days, indicating that he did not consider the Appellant's case involved the cross examination of HMRC witnesses on fraudulent defaulters and buffer companies in the transaction chains. However, in correspondence with HMRC, the Appellant has refused to state that he accepts any of HMRC's evidence in this regard, despite this evidence concerning matters over which he could have no personal knowledge (unless he was involved in fraud). This has led to HMRC producing bundles for the substantive hearing that stretch to 11,230 pages, and an estimate for the substantive hearing of 15 days. The majority of this time has been allocated for the Appellant to cross-examine HMRC's witnesses.

171. The Appellant's failure to provide written clarification, and his absence from the hearing on 31 January 2025, means it is not possible for the hearing to be shortened on the basis of any agreement between the parties that not all of HMRC's witnesses are required. While that results in greater expense for HMRC and the Tribunal, that also increases the attendance burden on the Appellant. I also return to this issue below.

The fifth issue is whether these appeals should be struck out on the basis that the Appellant had failed to co-operate with the Tribunal to such an extent that the Tribunal cannot not deal with the proceedings fairly and justly

172. It is appropriate to start by reminding myself that striking out an appeal is, in any case, a draconian option. That is particularly the case where an appeal is struck out for want of co-operation. Unsurprisingly, there are few reported cases specifically addressing this situation.

173. I also remind myself that I should only take the step of striking out if the Tribunal cannot deal with the proceedings fairly and justly, and that any exercise of power must take account of the over-riding objective, which includes:

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

174. The relevant authorities begin with First Class Communications plc v HMRC [2013] UKFTT 90 (TC). This was a case where the Appellant sought an order that HMRC be barred under Tribunal Rule 8(3)(b), on the basis that HMRC had failed to co-operate with the Tribunal. The same principles apply when the Tribunal is considering striking out an appellant's appeal. Judge Mosedale set out her understanding of when Rule 8(3)(b) could apply, as follows:

52. Firstly, Rule 8(3)(b) could apply where the appellant has already been so prejudiced by HMRC's conduct in a manner which cannot be remedied and that therefore the proceedings cannot be fair and just. In such a case HMRC should normally be barred from the proceedings. Secondly, I consider that Rule 8(3)(b) could apply where there has been a course of conduct by HMRC which, while it has not yet meant it is not possible to deal with the appeal fairly and justly, nevertheless is part of a pattern of conduct which, if it continues, will mean that the appeal cannot be dealt with fairly and justly. In such a case, I consider it might be appropriate to bar HMRC from proceedings.

175. In First Class Communications, Judge Mosedale considered the prejudice which had been caused to that appellant by the proceedings having been inexcusably delayed by HMRC four months, and concluded:

67. On balance, I do not consider that the delay of four months, albeit caused by HMRC without any excuse being offered, is by itself sufficient to justify barring HMRC, which as I have said, would probably amount to allowing the appeal. I do not in any way wish to suggest that HMRC's conduct is condoned. HMRC's conduct is very serious indeed and on slightly different facts or longer delay might lead to a barring order.

68. The appellant did not claim any other specific prejudice had already been occasioned to it, and so I reject its application to bar HMRC on the basis of prejudice already occasioned to it.

69. However, as I have said Rule 8(3)(b) would, in my view, permit the Tribunal to bar HMRC where HMRC's conduct has been such in the past that, were it to continue, justice could not be done. In this respect, the question is whether HMRC's failings to date are likely to continue.

176. Judge Mosedale outlined some of HMRC's failures in that appeal (described a pattern of mismanagement including late compliance with directions even when immediate compliance was directed, and late replies to correspondence), and noted that HMRC's solicitor had since changed and further reassurances given by HMRC. Judge Mosedale concluded:

74. I am therefore not satisfied I should bar HMRC on the basis of a pattern of conduct either. Based on the change of personnel and HMRC's reassurances, I do not expect the mishandling of the appeal to continue. If, despite HMRC's reassurances, the failures on HMRC's part do continue, then no doubt the appellant will renew its barring application.

177. In Nutro UK Limited v HMRC [2014] UKFTT 971 (TC), the Tribunal (Judge Berner) was required to consider whether the appeal before him should be struck out. Judge Berner considered analogous decisions taken under the Civil Procedure Rules and in other jurisdictions before summarising:

17. These judgments have resonance with the decision of Judge Mosedale in First Class Communications, to which I have referred. Thus, the issue whether there can be a fair hearing is an important one, but not decisive. Regard may be had to the likely future conduct of the proceedings. The Tribunal should, in short, take account of all the circumstances, having regard to the overriding objective, including the need to ensure that case management directions, aimed at achieving the objective of dealing with cases fairly and justly, are observed.

18. I should say that I do not consider that, in the context of an application to strike out, much direct assistance can be derived from the line of cases dealing with relief from sanctions, ...

19. In so far as those cases afford any guidance to the approach to be adopted to the exercise of my discretion in a case such as this, it is in the need, according to Denton, to avoid taking an unduly draconian approach, and not to regard compliance with rules as an end in itself superior to doing justice in the case. ...

20. That is particularly apposite in the Tribunal where, as noted by Judge Bishopp in Leeds City Council, which is as apposite to this Tribunal as it is to the Upper Tribunal, in contrast to the emphasis placed by the changes to the CPR, including the description of particular features of the overriding objective as applicable to the courts, which elevate the importance of enforcing compliance, the Tribunal's overriding objective requires the Tribunal to avoid unnecessary formality and to seek flexibility. That does not mean, of course, that compliance with the Rules is regarded as unimportant; that much is clear from the express provisions of rule 8 which enable the Tribunal to strike out proceedings where that sanction is expressed in a direction. It is a factor to which the Tribunal should have regard, but one which has no necessarily elevated importance and to which the relative weight to be given to that factor is a matter for the Tribunal in all the circumstances.

178. In Nutro there had been a "litany of persistent defaults", and very delayed production of witness evidence. In explaining his decision to strike out the appeal, Judge Berner concluded:

... Absent any finding that Mr Sethi had been deliberately withholding material evidence, it does not seem to me that the production of these materials, albeit late, should, either alone or in combination with other procedural defaults, lead to a striking out of the appeal on this basis.

54. There is, on the other hand, the most serious issue of a false statement having been made by Mr Sethi in support of the application to admit the new evidence, and in seeking to resist a strike out. ...

55. That is a matter which goes to the core of cooperation with the Tribunal. It is fundamental to the operation of the system of administration of justice, and enabling the Tribunal to deal with cases fairly and justly, that the Tribunal, and other parties to the proceedings, are able to rely on the truth of statements. That is as applicable to the conduct of case management as it is to the substantive appeals themselves. To attempt to obtain or resist a direction of the Tribunal by making false statements undermines the system of justice which the Tribunal embodies.

56. I am conscious of the draconian nature of a striking out of the appeal, and of the fact that this Tribunal no more exists for the sake of discipline than do the courts. Nonetheless, the sanction of a strike out is available to the Tribunal in an appropriate case if it considers that it cannot deal with the proceedings fairly and justly. After much consideration I have concluded that such is the position in this case.

57. This is not a case where the basis for a strike out can be described in terms of good housekeeping. Even though I do not consider that this is a case where there could not be a fair hearing (Mr Watkinson did not seek to argue that it was), the combination of the persistent defaults by Nutro, the numerous warnings given by the Tribunal, and the reprehensible attempts by Mr Sethi to mislead the Tribunal, lead me to the clear conclusion that this is a case in which the appellant has failed to cooperate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly.

58. This is not a case, in my view, where any other remedy, short of striking out, is appropriate. The only possible such remedy would be in costs, including costs on an indemnity basis. I was informed that this is a case, being an appeal which commenced before 1 April 2009, where a direction has been made for the costs rules under rule 29 of the Value Added Tax Tribunals Rules 1986 to apply; this is thus a case in which I have a full costs-shifting jurisdiction. But I do not consider that a costs order in favour of HMRC would provide an appropriate remedy in a case such as this, where what is prejudiced is not only the conduct of an appeal to which HMRC is a party, but also the ability of the Tribunal to deal with the case fairly and justly.

179. From Nutro, I understand that I should not place too heavy a reliance on the breaches that have occurred but instead I should weigh those only as one factor when I am considering all other factors. However, there may be one or more other factors besides the breaches that mean that there is no other suitable remedy and that striking out becomes appropriate.

180. In Atec Associates Limited v HMRC [2016] UKFTT 713 (TC), Judge Brannan also considered an application to strike out an appeal. He said:

105. In exercising my discretion under rule 8(3)(b), it was necessary that I should take account of all relevant circumstances. In so doing, I should take account of the history of this appeal and, in the light of that history, the likely conduct of the appeal in future. I should also, of course, take account of the overriding objective contained in the Rules that I should deal with cases fairly and justly.

106. I was also conscious of the very severe consequences of a strike-out. An appeal should not be struck out merely for good housekeeping purposes or out of a preoccupation with tidiness. It is a draconian remedy, referred to in one of the authorities as an "atomic weapon in the judicial armoury" (Hytec Information Systems Ltd v Coventry City Council [1997] WLR 1666, per Ward LJ at p 1676) and it seems to me one which should only be used where there is no suitable alternative remedy which is more proportionate and appropriate to the conduct of which complaint is made. This was a point noted by Judge Berner in Nutro at [13] when he referred to the judgment of Lord Woolf MR in Biguzzi v Rank Leisure PLC [1999] WLR 1926 as follows:

"...Lord Woolf made clear that the step of striking out a case was a draconian one, and that the existence of the power did not mean that in applying the overriding objective (of enabling the court to deal with cases justly) the initial approach will be to strike out the statement of case. Lord Woolf emphasised the existence of other powers to deal with delay or failure to comply. He gave as examples orders for costs, including costs on an indemnity basis."

107. I am bound to say that I found this a very finely balanced decision. It would have been possible to conclude from Atec's conduct that it intended to disrupt a hearing originally scheduled for six weeks (and on the revised timetable lasting for three weeks) and in so doing it failed to cooperate with the Tribunal. On the other hand, Atec is self-represented and some allowances should be made, although not to the extent that unfairness should be visited upon HMRC (see the comments of Maurice Kay LJ in Tinkler v Elliott [2012] EWCA Civ 1289 at [32] cited above).

108. Taking all the circumstances into consideration, I decided not to strike out the appeal. Overall, I concluded that striking out the appeal would be disproportionate and that there was a more appropriate method of dealing with the issues before me which allowed the appeal to be dealt with fairly and justly.

109. Instead, I decided to direct that Atec should not be permitted to cross-examine the HMRC witnesses listed in Schedule A (witnesses in relation to defaulters and contra-traders) of HMRC's application of 22 January 2015. In reaching that conclusion, it seemed to me that this was a direction that I would have made if, at the hearing on 26 February 2015, Atec had not decided to refrain from cross-examining any HMRC witnesses, a concession which thereby rendered HMRC's Fairford application moot.

181. XG Concept v HMRC [2017] UKFTT 92 (TC) also concerned an application by HMRC to strike out the appeal. Judge Rupert Jones summarised the breaches of that appellant as the following:

None of the directions breached in this case by the appellant were unless orders. Nevertheless, in this case the appellant's five failures to comply with three different sets of directions over a period of five months might properly be described as litany of defaults. They have cumulatively and individually affected the fairness and justice of the proceedings to date and indicate that the approach of the appellant is likely to continue. The third and fifth of the appellant's breaches, in response to the October and December directions, to provide witness statements and grounds to oppose the strike out application, were serious and significant breaches in their own right.

47. This conduct is compounded by the appellant's failure to attend or oppose the strike out application at the hearing itself.

48. This catalogue of non-cooperation means that the Tribunal can reasonably extrapolate that the appellant's conduct of the proceedings would continue in the same vein in the future were the case to proceed to a final hearing. This would mean that the Tribunal would not be able to deal with the case fairly or justly. This is an appeal where the appellant's repeated failure to engage with the process means that a fair and just determination is not possible.

49. The Tribunal relies on the following further points.

50. Even at the time of the hearing, on full notice of the consequences of a strike out application, the appellant declined to engage. It has chosen not to respond to the strike-out application and it has failed to comply with the December directions by declining to set out its arguments for opposing HMRC's application. This further demonstrates that the appellant has no intention to change its approach of non-cooperation and cannot be reasonably expected to change that approach.

51. The appellant's conduct has meant that this appeal has not been able to proceed to a substantive hearing in a timely manner.

52. The appellant's conduct is in breach of the overriding objective.

53. HMRC submitted that a litany of failures has seriously prejudiced the Commissioners' trial preparation. I accept this submission.

182. The appeal was struck out in XG Concept.

183. So, having set out those authorities, I understand that, in making a decision about whether to strike out these joined appeals, I should consider all relevant factors. This includes looking at past conduct and also extrapolating to likely future conduct. I should then weigh those factors to decide if the Tribunal can still deal with these matters fairly and justly, bearing in mind the over-riding objective. I should not put undue weight on breaches that have occurred but it may be relevant to take into account other factors that either aggravate or mitigate what has occurred. Given the draconian nature of striking out, if I consider that there has been a failure to co-operate, I should consider whether there is another remedy, short of striking out, which will allow the appeals to be dealt with fairly and justly.

Has the Appellant failed to co-operate with the Tribunal?

184. Before I consider possible options for the progress of these appeals, I should make clear my position with regard to whether the conduct of the Appellant been such that there has been a failure to co-operate with the Tribunal. Although the Appellant was anxious (in his email of 5 February 2025) that I should not make such a finding, when I look at the overall conduct of the Appellant in these proceedings, I have concluded that the Appellant has failed to co-operate.

185. This failure to co-operate is not simply a matter of delay (although that has been considerable) but also important matters such as the Appellant's failure to engage with HMRC on whether there are parts of their evidence that he can accept, and his failure to attend the hearing on 31 January 2025. The Appellant's failure to co-operate is also evident in less serious matters such his failure consistently to copy his emails to HMRC despite having been told by the Tribunal that this was required, his request to be given time to attempt a settlement despite not having taken the opportunity to apply for ADR several months earlier, his unwillingness to name his witnesses, and his failure to apply for a witness summons after implying that improper pressure on those witnesses was the cause of his delay in filing statements from those witnesses.

186. With regard to the delay, the delay in progressing these appeals has been considerably longer than the four months in First Class Communications. Not all of that delay is attributable to the Appellant and I consider that an unrepresented appellant, even in good health, would need some time to consider the volume of evidence (23 witness statements plus exhibits) served by HMRC. HMRC rightly did not object to the Appellant's first application for an extension until September 2021 to prepare his witness evidence. However, the Appellant does not appear to have made any progress in the preparation of his case in the two and a half years that have passed since then. The Appellant's many requests for extensions of time have significantly delayed the progress of these appeals. Even at times when the Appellant had formed his own conclusion (justified or not) that his health would not improve (for example, the Appellant's email of 27 February 2023) he continued to ask the Tribunal to grant him more time.

187. Delay is prejudicial to both parties because the longer the delay, the more likely it is that witnesses' recollection of events will become blurred. In this appeal HMRC have already had to apply for some of their witnesses to adopt the statements of other officers who are no longer working for HMRC. The delay has also prejudiced the Appellant in that he appears to be in worse health than when he first began asking for the Tribunal proceedings to be delayed.

188. So, having concluded that there has been a lack of co-operation, I consider the various options for the continuation of these appeals in order to ascertain whether there is a remedy short of striking out that will enable the Tribunal to deal fairly and justly with these proceedings.

Is there a remedy short of striking out?

189. The Appellant's own proposal (in his email of 5 February 2025) appears to be that there should be a further case management hearing in Wakefield in four weeks. This would require the postponement of the substantive hearing. However, the Appellant has not explained his absence on 31 January 2025. If the Appellant believes his health was the cause of his non-attendance on 31 January 2025, then he has not explained the basis for considering he will be in better health in four weeks' time.

190. The factors that mitigate against re-listing the substantive hearing are the delay that has already occurred, the efforts HMRC have made to be ready for the substantive hearing and the considerable difficulties for the Tribunal in re-listing the substantive hearing at a venue that is close to the Appellant within any reasonable timeframe. In the absence of credible explanations from the Appellant, and given the difficulties of re-listing which would cause yet further delay, I do not consider it would be appropriate to postpone the substantive hearing in order to list a further case management hearing. This would be counter to the objective of avoiding delay. If this was what the Appellant was requesting then that application is refused.

191. One remedy mentioned in Nutro is an award of costs. That option is open to me as both of these appeals were allocated to the Complex track and the Appellant did not opt-out of the costs regime. However, given the Appellant's frequent assertions that he has no funds, I cannot be satisfied that this would provide any remedy to HMRC for the Appellant's lack of co-operation thus far and his likely continued lack of co-operation. I do not consider an order that the Appellant meet the Respondents costs in any event, would be sufficient remedy so that the Tribunal could deal with proceedings fairly and justly.

192. In Atec Associates, Judge Brannan decided that Atec would not be permitted to cross-examine the HMRC witnesses in relation to defaulters and contra-traders, and that this would be achieve justice between the parties, so it was not necessary for the appeal before him to be struck out. That decision arose from Atec's decision to retract a concession it had made relating to those witnesses.

193. In the present appeals, since the Appellant has been representing himself, he has not been willing to accept any of HMRC's evidence relating to fraudulent defaulters and buffer companies in the transaction chains relating to the company and LLP he formerly controlled. The Appellant has not provided any explanation for his stance other than his (erroneous) assumption that accepting such evidence would imply that he did know that the transactions of the company and / or LLP were connected with the fraudulent evasion of VAT. The Appellant has not filed any documentary evidence to counter HMRC's witness evidence, and he has not named any witnesses who he will be calling and who can give evidence about the fraudulent defaulters or buffer companies. The Appellant has not at any time suggested that he has any personal knowledge of the defaulters HMRC say are fraudulent or buffer companies.

194. In HMRC v Fairford Group plc [2014] UKUT 329 (TCC), the Upper Tribunal held as follows:

48. ... If there is a real challenge to HMRC's evidence it should be identified; if there is not, the evidence should be accepted. We see no reason why an appellant who does not advance a positive case should be entitled to require HMRC to produce witnesses for cross-examination when their evidence is not seriously disputed. Such a course is wasteful not only of HMRC's resources but also of the resources of the FTT, since it increases the length of hearings and adds to the delays experienced by other tribunal users.

195. I consider that the Appellant here has failed to advance a positive case as to why he requires HMRC to produce all of their witnesses for cross-examination. When I directed (on 4 March 2024) that the Appellant should provide a Fairford Statement by 15 April 2024 "if he is able" that was intended to take account of the difficulties for the Appellant in re-reading 22 witness statements, and exhibits, in order to re-acquaint himself with HMRC's case. It was not intended that the Appellant should take no steps at all to address HMRC's evidence. Even with poor eyesight and reliance on others to help him, the Appellant has had ample opportunity since 4 March 2024 to consider HMRC's evidence and reflect on his position. The hearing on 31 January 2025 gave the Appellant the opportunity to better explain his reasons for wishing to cross-examine all of HMRC's witnesses, but the Appellant did not take that opportunity.

196. The Upper Tribunal continued in Fairford:

49. In our view the FTT should also direct that if an appellant raises no positive case, serves no evidence challenging the evidence of HMRC's witnesses, and does not identify the respects in which the statements of those of HMRC's witnesses who deal only with the questions set out at para 47 above are disputed, then their evidence can be given, and will be accepted by the tribunal, in the form of a written statement under FTT Rule 15(1) (see also Rule 5(3)(f)), and that cross-examination of that witness will not be permitted.

30 50. In our view this is both a practical and legitimate procedure for dealing with this type of issue.

197. As the Appellant has not advanced a positive case, and has not explained why he requires all of HMRC's witnesses to be available for cross-examination, I consider it appropriate to make an order that HMRC's evidence detailed in the table in Direction 2 of the Directions of 4 March 2024 can be given, and will be accepted, in the form of the already filed witness statements. No cross-examination of these witnesses in respect of the matters set out in those witness statements will be permitted.

198. Having made that decision, I must consider whether that Fairford Order alone is sufficient remedy and whether I am able to conclude that the Tribunal can now be dealt with fairly and justly. I am conscious that, if the Appellant had attended on 31 January 2025, then, on the basis of his case as thus far presented, it was likely that I would still have made this Fairford Order.

199. In considering whether this Fairford Order alone is sufficient for the proceedings to continue fairly and justly, I need to extrapolate from the Appellant's previous conduct to also consider his likely conduct from this point.

200. The substantive hearing is currently listed and due to begin on 3 March 2025. However, extrapolating from previous actions, I consider it very likely that the Appellant will continue to make applications for adjournment of this hearing on the grounds of health. Responding to such applications will take time and incur costs for both the Tribunal and HMRC. Such use of resources will be disproportionate given the explanations already provided to the Appellant about why further delay is not appropriate.

201. My decision with regard to Fairford means that the hearing in Leeds could now be shortened to two (or possibly three) days. A two (or three) day hearing will be far less imposing for a litigant in person than a 15 day hearing. The Appellant has stated that "hopefully [he] will be able to cope" in four weeks. However, that assertion by the Appellant was in relation to a proposed hearing in Wakefield, and the substantive hearing is listed in Leeds. The Appellant did not attend the hearing in Wakefield (which is geographically closer to him and was only listed for half a day). There is also an unfortunate pattern of the Appellant failing to act after making assertions (stating he wishes to try settlement but not applying for ADR, stating that his witnesses have been subject to pressure but not applying for a witness summons). The Appellant's failure to attend on 31 January 2025, combined with this pattern of behaviour and the Appellant's beliefs (justified or not) about what his health permits, mean I cannot have faith in any assertions the Appellant makes now about his attendance in the future. While I wish to ensure that, as far as possible, both parties are able to participate in the proceedings, I am not satisfied that the Appellant will attend any part of a substantive hearing of any length in any location.

202. I have had regard to the fact that the Appellant appears to be unrepresented and so some allowances should be given for his previous conduct. However, the Appellant has stated more than once that he has legal advice, and so the leeway that he should be accorded is more limited. This does not mean that I underestimate how stressful the prospect of a hearing must be to an unrepresented appellant. The Tribunal encouraged the Appellant to bring a friend or family member with him to the hearing, and has endeavoured to be flexible in terms of suggested adjustments. The Appellant has failed to respond to these suggestions.

203. I have also had regard to the importance of this appeal to the Appellant. There is a considerable amount of money at stake, and the Appellant has stated on several occasions that he cannot afford to pay if he is unsuccessful. I also have regard to the Appellant's comments about his belief in his own innocence (which I take to mean his lack of knowledge of fraud). However, despite the Appellant's assertion to the Tribunal that he believes he has a good case, the Appellant's email of 26 January 2024 to HMRC suggests the Appellant believes that if he is "pushed" into a Tribunal hearing then he will lose his appeal. Whether the Appellant's prediction of this outcome is due to his concern about his lack or legal experience of otherwise, it suggests that the Appellant has limited confidence in his own case.

204. Pulling these considerations together I conclude that, if the appeals continue, the most likely outcome for the next four weeks is that:

- the Appellant will continue to seek to delay the substantive hearing but will make no more progress in the preparation of his case, including not filing a skeleton argument;

- the Appellant is unlikely to attend the substantive hearing even though he says the appeals are very important to him;

- HMRC will be put to the disproportionate time and expense of having two witnesses, their solicitor and counsel attend a hearing in a venue chosen for the convenience of the Appellant; and

- the hearing (and any pre-hearing applications) would also require scarce and thinly spread Tribunal and judicial resources.

205. In the less likely but still possible outcome of the Appellant attending the substantive hearing (in whole or in part) then:

- the Appellant would face cross-examination (which he describes as an interrogation) which would be difficult to manage as (without the appropriate medical evidence) the reasonable adjustments required for this particularly stressful part of a hearing still cannot be identified; and

- it is still highly unlikely that the Appellant would prepare in advance for the substantive hearing, and so the Appellant is highly unlikely to be able effectively to present his case or cross-examine the remaining HMRC witnesses.

206. These difficulties mean that, if the Appellant does attend unprepared and without reasonable adjustments having been discussed and put in place in advance, then the hearing will take longer, and will be more susceptible to being part-heard, than if the Appellant either did not attend at all, or was prepared and attended.

207. I conclude that there is no realistic likelihood of the Appellant filing an appropriate medical report and discussing the reasonable adjustments he needs in advance of the substantive hearing, preparing his case, filing a skeleton argument by the due date and then attending the substantive hearing on 3 March 2025, ready to proceed.

208. I have considered the possibility of an Unless Order but concluded that this would not assist as it would require HMRC and the Tribunal to prepare fully, not knowing whether the Appellant would attend each day. This could lead to wasted time and resources.

209. This has been a very difficult decision. I have eventually decided that the Tribunal would not be able to deal with the proceedings fairly and justly in either of the two likely outcomes.

210. The Appellant's lack of co-operation thus far means that, in either of the likely outcomes for the substantive hearing, his actions and inaction have already caused some disruption to the substantive hearing and will prevent the Tribunal from managing the appeals in a way that is proportionate to the issues that remain and the resources of the parties. I agree with HMRC that the Appellant's failure to co-operate and, in particular his non-attendance on 31 January 2025, means that it is no longer possible to proceed in a way that is fair and just to both parties.

211. Therefore, despite its draconian nature, I have concluded that there is no other remedy that will suffice to overcome the consequences of the Appellant's lack of co-operation, and so I should strike out these appeals.

212. These appeals are hereby STRUCK OUT under Tribunal Rule 8(3)(b) as I have concluded that the Appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly.

Right to apply for permission to appeal

213. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to "Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)" which accompanies and forms part of this decision notice.

JANE BAILEY

TRIBUNAL JUDGE

Release date: 15^th APRIL 2025

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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Firth v Revenue and Customs (VAT - Kittel assessments issued) [2025] UKFTT 428 (TC) (15 April 2025) URL: https://www.bailii.org/uk/cases/UKFTT/TC/2025/TC09491.html Cite as: [2025] UKFTT 428 (TC)

First-tier Tribunal (Tax)