Fastklean Ltd v. HMRC & K Gordon is an interesting procedural case. The FTT had heard an appeal by a taxpayer, Fastklean Ltd, against an assessment by HMRC. The report of that case had referred to an email of HMRC’s which set out its current internal procedures for issuing the types of penalties at issue in the case.
Keith Gordon, is a well-known member of the Revenue Bar and a distinguished author on taxation matters who, as a doughty champion of the rights of the taxpayer, was awarded the Outstanding Contribution to Taxation Award in the Tolley’s Taxation Awards in 2019. He was not a party to the appeal nor did he represent any such party but he sought the document on the basis that he practises frequently in the Tax Tribunal and has a particular interest in the operation of the Taxes Management Act.
Citing the cases of Hastings Insurance Services v. HMRC and Cape Intermediate Holdings Ltd v. Dring (Asbestos Victims Support Group) the Tribunal decided that it has the power to allow access to third parties to documents placed before it and referred to in a hearing but the applicant has no automatic right to be granted such access. There is a rebuttable presumption, however, that the public should be allowed access to all such documents.
The Tribunal has to carry out a fact-specific balancing exercise, starting with the purpose of the open justice principle and the potential value of the information in question in advancing that purpose against any risk of harm which its disclosure might cause to the maintenance of an effective judicial process or to the legitimate interests of others.
Applying this test the Tribunal granted Mr Gordon access to the document as he had requested.