First-tier and Upper Tribunals: Preparing for tribunal: Strike out of a case
The tribunal must strike out all or part of a case if it does not have jurisdiction in relation to that case or part of a case and does not transfer the case to another tribunal (para 8(2) SI 273/2009) .
For example, if a customer appealed to the tribunal while a review was ongoing, the Tribunal Service would refer this to a judicial officer and the case would be struck out (tribunal rule 8(2)(a) SI 273/2009) on the basis that the tribunal does not have jurisdiction in relation to the proceedings.
Proceedings will automatically be struck out if the tribunal has issued a direction saying that if the party fails to comply with it the case will be struck out (commonly known as an “unless order”) and the relevant party does not comply.
The tribunal may also strike out all or part of a case if
- a party to the proceedings did not cooperate with the tribunal to such an extent that it was impossible for the tribunal to deal with the proceedings fairly, or
- the tribunal does not think there is any prospect of a party’s case, or part of it, succeeding (First-tier Tribunal cases and cases being heard by the Upper Tribunal in the first instance, see ARTG8060, only); in practice this may follow an application by HMRC.
But the tribunal may not strike out all or part of a party’s case without first giving them an opportunity to make representations.
If all or part of the case is struck out as a result of a direction that indicated that failure to comply with the direction could or would result in the case being struck out, the person bringing the appeal may apply to the tribunal to have it reinstated. They must apply to the tribunal within 28 days (First-tier Tribunal) or 1 month (Upper Tribunal) of the date of the notification of the striking out.
If the party whose case is to be struck out is the person opposing the appeal, the appeal will continue but that person will be barred from taking further part in the proceedings. This means that the tribunal need not consider any submissions from that person. They may apply to the tribunal within 28 days (First-tier Tribunal) or 1 month (Upper Tribunal) of the date of the notification for the bar to be lifted.
“What happens if a case is struck out
- If a case is struck out, it is as if the customer had never appealed to the tribunal.
- If there had been a review of their case, the review conclusion should stand.
- If they had not asked for a review, then the original decision should stand.
- The papers should be returned to the decision maker to give effect to the decision/review conclusion.
- The customer may apply to the tribunal within 28 days of the strike out for the proceedings to be reinstated”