[reposted from LinkedIn]
The Upper Tribunal (Tax and Chancery) Chamber (UT) has declined to accept that, as a general rule, where a party bringing substantive proceedings has sought, and failed to get, an ancillary anonymity order, they should be able to withdraw their substantive application and maintain anonymity.
The applicant – “The Taxpayer” – was originally granted anonymity (i.e. that the hearing should be in private) by the First-tier Tribunal (FTT) in proceedings where he was appealing against the denial by HMRC of certain tax deductions which he had claimed.
In a decision from January this year the Upper Tribunal granted HMRC’s appeal and set aside the FTT’s direction. The Taxpayer then sought a direction from the UT that if he withdrew his substantive FTT appeal against HMRC’s denial of deductions, the UT proceedings would remain anonymised.
Counsel for The Taxpayer accepted that this would be a derogation from the open justice principle, but argued that it was one that – absent bad faith – would always be necessary in such withdrawal circumstances “in order to secure the administration of justice and to protect an applicant’s Article 8 rights”.
Not so, held the UT: “it would undermine [the open justice] principles for the Anonymity Application to be granted without any consideration of the degree of necessity, the facts and circumstances said to justify anonymity, or the proportionality of the derogation from the principle of open justice. An application such as the Anonymity Application is not to be refused or granted in every case, but stands or falls by a granular, fact-specific, assessment of those factors”.
Pending further appeal, the identity of The Taxpayer remains undisclosed, but once appeal has been refused, or deadline has passed, the judgment will be republished without anonymisation.
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