12 January 2020: ICAEW’s Tax Faculty has urged the Ministry of Justice to rethink proposals for restricting the mechanism for appealing cases from Upper Tribunals to the Court of Appeal.

The Ministry of Justice outlined its proposals in a consultation stating that they would reduce the workload faced by the Court of Appeal (CoA), but ICAEW’s Tax Faculty believes that this would come at a cost of restricting access to justice for some taxpayers.

In considering the consultation, ICAEW focused on the impact on tax cases, arguing that the proposed changes would make it more difficult for cases with genuine merit to be appealed from the Upper Tribunal’s Tax and Chancery Chamber to the Court of Appeal.

One of the key proposals in the consultation document is to restrict appeals made directly to the Court of Appeal, meaning that cases will only be heard at that court where there is “exceptional public interest”.

In ICAEW REP 06/21, the Tax Faculty argued that this test is too restrictive and would be easier for HMRC to meet than a taxpayer. This would create an unjustified shift in the balance of power as it is rare for taxpayers to make appeals to this court and beyond unless the case has real merit or a realistic chance of success.

ICAEW has obtained significant anecdotal evidence of cases heard at the Supreme Court that would not have made it to the Court of Appeal if the request to appeal to the latter had been heard by a lower court.

A second proposal in the consultation document would prevent cases from being considered for judicial review at the Court of Appeal where the Upper Tribunal had certified that the case was totally without merit.

ICAEW expressed more sympathy with this proposal provided the case could be considered instead by a different Upper Tribunal judge to the one who had previously passed judgement on the case. 

• Read ICAEW REP 06/21 in full