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Upper Tribunal appeals

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The Ministry of Justice (MoJ) has launched a consultation Reforms to arrangements for obtaining permission to the Court of Appeal on proposals to amend arrangements for obtaining permission to appeal from the Upper Tribunal to the Court of Appeal. According to the MoJ, the proposals seek to ‘improve the efficiency of the tribunal system by limiting the extent to which an unsuccessful litigant can require the Court of Appeal to further examine judicial decisions made in the Upper Tribunal’. The consultation closes at 11.59pm on 11 January 2021.

The principal proposals are:

  • ‘In the case of a second appeal, if the Upper Tribunal refuses permission to appeal to the Court of Appeal, the losing party may only apply directly to the Court of Appeal for permission to appeal “for reasons of exceptional public interest”. If the Upper Tribunal is uncertain whether to grant or refuse permission to appeal, they may refer the application for permission to appeal for determination by the Court of Appeal (which will be determined in the usual way on the papers, unless the judge directs an oral hearing).
  • Where a judge of the Upper Tribunal has certified an application for judicial review to be totally without merit, there should be a right of review before another Upper Tribunal judge but no right to apply for permission to appeal to the Court of Appeal.’

Commenting on Twitter, tax barrister Keith Gordon (Temple Tax Chambers) said: ‘In the tax context, it is worth noting one possible consequence of the proposals (if allowed to proceed) as based on the latest published statistics.Currently, HMRC have a success rate of 76% in the Upper Tribunal (the stage before the Court of Appeal).  In the Court of Appeal and Supreme Court, their success rate falls to 50%. The proposal will mean far fewer tax cases will reach the courts where HMRC's success rate falls.’

Dan Neidle, partner at Clifford Chance, raised similar concerns. ‘The proposals to water-down the right of appeal are concerning,’ he tweeted. ‘Whether it's tax or immigration, the principle is the same: government has a huge amount of power over our lives, and if its decisions can't survive legal challenge, they don't deserve to.’

Issue: 1513
Categories: News