First Tier Union

Home Comment First Tier Union

It is for the Court to determine what is the content of the law of the country in which it has jurisdiction.  The content of the laws of other countries are matters of fact to be determined on the basis of evidence. 

In the case of Spring Capital Limited v. HMRC [2021] the question arose whether, in the First-tier Tribunal, Scots Law is:

  • a matter of judicial knowledge; or
  • a matter of fact on which evidence is admissible.

The Tribunal cited Campbell LJ in Stuart v. Marquis of Bute (1861) as saying:

‘…as to judicial jurisdiction, Scotland and England, although politically under the same Crown and under the supreme sway of one united Legislature, are to be considered as independent foreign countries, unconnected with each other.’

and Lord President Inglis in Orr Ewing’s Trustees v. Orr Ewing (1884) as saying:

‘…the judicatories of England and Scotland are as independent of each other within their respective territories as if they were the judicatories of two foreign states.’

The result of that is that, normally, if a matter of Scots Law is relevant to an English case or a matter of English Law is relevant to a Scottish case, expert evidence may be adduced as to the relevant Scottish or English Law on the matter just as it would be if an English or Scottish Court were dealing with a foreign jurisdiction such as France or Germany. 

The Tribunals, Courts and Enforcement Act 2007 s. 26, however, provides that:

‘Each of the First-tier Tribunal and Upper Tribunal may decide a case—

(a)     in England and Wales,

(b)    in Scotland, or

(c)     in Northern Ireland,

even though the case arises under the law of a territory other than the one in which the case is decided.’

Citing the authority of Murray Group Holdings and Others v. HMRC [2015] the Tribunal found that the First-tier Tribunal was:

‘ … a UK wide Tribunal and Scots law is a matter of judicial knowledge. The question of admissibility of evidence and therefore the expert witness does not arise.’

Published in
1 June 2021
Last Updated
13 September 2021