Out-Law News 3 min. read

Tribunal: journalist entitled to obtain tax appeal documentation

A journalist should generally be entitled to obtain copies of documentation lodged with the tribunal as part of a tax appeal, including the grounds of appeal and the response of HM Revenue and Customs (HMRC), the Upper Tribunal (UT) has ruled.

Tribunal judge Greg Sinfield said that the common law principle of 'open justice' was applicable to all courts and tribunals, and required the documentation sought by journalist Gareth Corfield to be disclosed unless there was a good reason not to do so. In this case, the taxpayer was unable to show that the access sought "would lead to any unfairness or is likely to cause ... real harm".

Aria Technology Ltd (ATL) and its sole director, Aria Taheri, are appealing a 2016 first-tier tribunal (FTT) decision in relation to VAT fraud. The FTT found that HMRC had established fraudulent tax losses and VAT evasion in connection with the wholesale supply of computer hardware equipment to customers in Spain, Luxembourg, Portugal and Canada.

The UT is due to hear ATL's appeal against the FTT decision in June.

Corfield originally sought copies of ATL's "particulars of claim, defence (if filed) and any public orders or judgements made so far" under rule 5.4C of the Civil Procedure Rules (CPRs), which govern the conduct of litigation in the civil courts. The CPRs do not, however, apply to tribunal procedure. When informed of this, Corfield renewed his application relying on case law, specifically the Guardian News and Media vs City of Westminster Magistrates' Court case of 2012.

Corfield, who is a reporter at technology news website The Register, believes that reporting on the dispute is a matter of public interest "in the current climate surrounding allegations of tax irregularities by technology companies". He has also said that there is public interest in "examining ATL's grounds of appeal against the background of the FTT's decision". Taheri has argued that any reporting on the appeal before it is heard by the UT risked his reputation and that of the company, and has referenced problems he experienced with his bank during the FTT hearings in the case in 2014.

In his decision, judge Sinfield found that Taheri's concerns were not sufficient to overcome the public interest considerations.

"Mr Taheri has not provided any evidence that ATL's bank or suppliers are likely to withhold payments or restrict credit because ATL is engaged in an appeal in the UT which challenges the decision," the judge said. "The fact that ATL is no longer experiencing difficulties with its bank and suppliers even after the publication of the decision also undermines Mr Taheri's submission that allowing Mr Corfield and The Register access to the documents now will cause reputational damage to him and ATL."

"I accept that Mr Taheri is entitled to be concerned about how ATL's appeal is reported but I do not accept that there is any evidence that Mr Corfield or The Register intends or is likely to misrepresent or distort the facts...Any damage caused by the fair and accurate reporting of ATL's appeal to the UT is no more than might be expected in any appeal against an adverse finding at first instance and does not amount to unfairness," he said.

Tax expert Catherine Robins of Pinsent Masons, the law firm behind Out-Law.com, said that the decision could cause concern to taxpayers if it was to be read across to the FTT. Details of these cases "usually only enter the public domain when the FTT decision is published", she said.

"The CPRs apply to civil litigation generally," she said. "However, tax cases are different to commercial litigation because of the presumption that one's tax affairs should be confidential. It could be prejudicial to taxpayers if allegations of tax avoidance in HMRC's statement of case, which the tribunal may later decide are unfounded, are reported in the press before the case has been heard."

"In practice, journalists will not usually get wind of an FTT hearing until after the event, but you could see it potentially happening in a tax avoidance case involving a high-profile individual or a well-known company, given the public's appetite for reading about those who are seemingly not paying their 'fair share' of tax," she said.

Robins pointed out that there was a difference between FTT cases which, although heard in public, are not generally publicised as due for hearing until a day or so before the hearing; and cases which have been appealed to the UT, a list of which is publicly available.

"By the time the taxpayer gets to the stage of appealing a case to the upper tribunal, a lot of information is already in the public domain by virtue of the publishing of the FTT decision," she said.

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