One minute with Peter Nias, barrister at Pump Court Tax Chambers
What’s keeping you busy at work?
Since joining Pump Court Tax Chambers the focus of my work has been advising on the use of ADR (alternative dispute resolution) techniques in the management of tax disputes. In 2011, HMRC published their refreshed Litigation and Settlement Strategy (LSS) with a detailed commentary on its collaborative dispute resolution (CDR) approach including the use of ADR and mediation. My work includes acting as a co-mediator in large and complex cases alongside the HMRC mediator who leads the process.
If you could make one change to the ADR process, what would it be?
I would like to see the collaborative working guidance in the LSS Commentary (at section 5) given more prominence and form the basis of an earlier ADR engagement with a mediator facilitating a structured discussion stopping short of a formal mediation. Such a process would see the parties re-engage in a more structured way well before entrenched positions were taken by either or both of them when the dispute was still at the ‘issues yet to be agreed’ stage with the parties potentially more amenable to collaborative engagement.
What do you know now that you wish you’d known at the start of your career?
The importance of ‘listening’ as opposed to just ‘hearing’ not only what was being said but also not being said both by my clients and also the other side including HMRC. And appreciating the significance of silence. It was the epiphany of taking (and passing) the CEDR mediation course that made me realise the significance of listening. In every case in which I have mediated, it becomes clear very quickly that misunderstandings have arisen largely due to one or both of the parties having failed to listen to what they have been told in the dispute journey.
Has a recent tax case caught your eye?
Not a tax case but a commercial one having a potentially significant impact on tax dispute management. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, it was held that the civil courts have the power to direct what they considered to be the appropriate ADR procedure. Until that case, it was thought that the FTT support for ADR under rule 3 of the Tribunal Rules could only be to encourage the use of ADR. The President of the FTT has now confirmed that the Churchill decision applies also to the tax tribunals giving tribunal judges the power in appropriate cases now to direct – not just encourage – parties to consider and engage in appropriate ADR procedures including mediation.
What differences (if any) are there between a tax dispute mediation and any other type of mediation?
The principal difference is that in a tax dispute, any agreement reached through mediation must comply with the LSS and be resolved in accordance with the law; being an outcome that a court could find. It is not possible to ‘do a deal’ or ‘split the difference’ as the parties are free to do in other forms of dispute resolution. That said, a tax dispute that initially appears ‘all or nothing’ might after discussion and testing especially with the assistance of a mediator turn out not to be genuinely ‘all or nothing’ but one where there are a range of possible compliant outcomes.
You might not know this about me but...
My wife and I had the opportunity many years ago of purchasing a small apartment in a 15th century Palazzo in the heart of Venice. It is on the corner of two small canals on which the gondoliers ply their trade. Having been an enthusiastic (amateur) rower all my life – sitting down and effectively rowing backwards; ‘English’ rowing as the Italians call it – I took up rowing gondolas a few years ago which I thoroughly enjoy; usually on the side canals but I have been seen on the Grand Canal itself.
One minute with Peter Nias, barrister at Pump Court Tax Chambers
What’s keeping you busy at work?
Since joining Pump Court Tax Chambers the focus of my work has been advising on the use of ADR (alternative dispute resolution) techniques in the management of tax disputes. In 2011, HMRC published their refreshed Litigation and Settlement Strategy (LSS) with a detailed commentary on its collaborative dispute resolution (CDR) approach including the use of ADR and mediation. My work includes acting as a co-mediator in large and complex cases alongside the HMRC mediator who leads the process.
If you could make one change to the ADR process, what would it be?
I would like to see the collaborative working guidance in the LSS Commentary (at section 5) given more prominence and form the basis of an earlier ADR engagement with a mediator facilitating a structured discussion stopping short of a formal mediation. Such a process would see the parties re-engage in a more structured way well before entrenched positions were taken by either or both of them when the dispute was still at the ‘issues yet to be agreed’ stage with the parties potentially more amenable to collaborative engagement.
What do you know now that you wish you’d known at the start of your career?
The importance of ‘listening’ as opposed to just ‘hearing’ not only what was being said but also not being said both by my clients and also the other side including HMRC. And appreciating the significance of silence. It was the epiphany of taking (and passing) the CEDR mediation course that made me realise the significance of listening. In every case in which I have mediated, it becomes clear very quickly that misunderstandings have arisen largely due to one or both of the parties having failed to listen to what they have been told in the dispute journey.
Has a recent tax case caught your eye?
Not a tax case but a commercial one having a potentially significant impact on tax dispute management. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, it was held that the civil courts have the power to direct what they considered to be the appropriate ADR procedure. Until that case, it was thought that the FTT support for ADR under rule 3 of the Tribunal Rules could only be to encourage the use of ADR. The President of the FTT has now confirmed that the Churchill decision applies also to the tax tribunals giving tribunal judges the power in appropriate cases now to direct – not just encourage – parties to consider and engage in appropriate ADR procedures including mediation.
What differences (if any) are there between a tax dispute mediation and any other type of mediation?
The principal difference is that in a tax dispute, any agreement reached through mediation must comply with the LSS and be resolved in accordance with the law; being an outcome that a court could find. It is not possible to ‘do a deal’ or ‘split the difference’ as the parties are free to do in other forms of dispute resolution. That said, a tax dispute that initially appears ‘all or nothing’ might after discussion and testing especially with the assistance of a mediator turn out not to be genuinely ‘all or nothing’ but one where there are a range of possible compliant outcomes.
You might not know this about me but...
My wife and I had the opportunity many years ago of purchasing a small apartment in a 15th century Palazzo in the heart of Venice. It is on the corner of two small canals on which the gondoliers ply their trade. Having been an enthusiastic (amateur) rower all my life – sitting down and effectively rowing backwards; ‘English’ rowing as the Italians call it – I took up rowing gondolas a few years ago which I thoroughly enjoy; usually on the side canals but I have been seen on the Grand Canal itself.
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