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Hastings Insurance Services Ltd & HMRC v KPMG LLP

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Our pick of this week's cases

In Hastings Insurance Services Ltd & HMRC v KPMG LLP (third party) [2018] UKFTT 478 (15 August 2018), the FTT granted KPMG access to appeal documents, even though the accountancy firm was not a party to the appeal.

KPMG applied to the FTT for copies of HMRC’s statement of case and both parties’ skeleton arguments in this appeal. The appeal was heard in public over eight days in November 2016 and the FTT’s decision was issued in January 2018. KPMG was not a party to the appeal, nor did it represent any party. It sought the documents in order to understand HMRC’s arguments in this appeal which, it argued, were relevant to its arguments in a different case in which KPMG was instructed.

The FTT observed that ‘the inherent jurisdiction of a court or tribunal to allow a member of the public to have access to and inspect documents relating to proceedings in that court or tribunal is founded on the fundamental constitutional principle of open justice.’ The FTT noted, however, that the FTT Rules do not expressly allow the First-tier Tribunal to allow a non-party to inspect or have access to documents relating to proceedings. It also noted that rule 14 indicates that, absent an order prohibiting disclosure and subject to any other statutory restriction, documents or information relating to proceedings may be disclosed on a limited basis or published more widely. In addition, rule 32(1) provides that hearings should be held in public.

In the FTT’s view, the appropriate test was whether the non-party has a legitimate interest in the documents. It added that a legitimate interest does not require a direct personal or professional interest in the outcome of proceedings. KPMG therefore had a legitimate interest in obtaining the documents. The FTT also rejected Hasting’s argument that its skeleton argument should not be provided to KPMG, stating: ‘It is, in my view, important for a proper understanding of the legal process, consistent with the principle of open justice, that members of the public should understand what submissions were made in the skeleton arguments even if they were modified or withdrawn during the hearing.’ The FTT also rejected the submission that the amount of tax assessed should be redacted.

Read the decision.

Why it matters: This case confirms the far-reaching implications of the principle of open justice even in tax cases. It is wide enough to allow a non-party access to documents relating to proceedings.

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