ARTG8400 - First-tier and Upper Tribunals: Preparing for tribunal: Role of the litigator
General
Preparation of case for tribunal
Preparation of case for tribunal - direct taxes
Preparation of case for tribunal - indirect taxes
Presentation of case at tribunal - direct taxes
Presentation of case at tribunal - indirect taxes
Direct and indirect taxes liaison between decision makers and litigators
Outcome of tribunal
General
Litigators deal with the preparation and presentation of most tribunal cases. They sit within Solicitor’s Office and Legal Services litigation units, see ARTG4320.
The litigators will be outside the line management chain of the decision maker.
Preparation of case for tribunal
Once the litigator receives details of the appeal from the Clearing House, they should obtain the case papers from the decision maker and, if a review has been carried out, the review officer.
They must then consider the papers, liaise with the decision maker and/or the review officer and other stakeholders including technical and policy specialists where appropriate. They will also obtain case specific legal advice, particularly about the conduct of the litigation, from Solicitor’s Office legal advisors if necessary.
If any of the advice needed could have wider application, the relevant technical and/or policy advisers must be consulted first. And if there is any indication that the customer may be subject to criminal investigation they should contact Criminal Investigation immediately for advice on how to proceed.
It is possible that the litigator may ask the decision maker to carry out further work or to provide further information before accepting a case. For example they may ask the decision maker to submit the case to a policy or technical specialist for advice.
Or if it is clear from the papers provided that a specialist office or a policy/technical specialist is taking the lead in the case the litigator will liaise with the specialist and decide who will be responsible for preparing and presenting the case at tribunal.
Preparation of case for tribunal - direct taxes
Once the customer has notified an appeal to the tribunal the case will be handled by a litigator. The litigator (in consultation with the decision maker, policy/technical specialists and Solicitor’s Office legal advisors as appropriate) will decide, in line with the Litigation and Settlement Strategy, see ARTG1020, whether the case should be defended before the tribunal.
If the litigator decides that HMRC should not defend the case at tribunal see ARTG8420.
Where the litigator decides the decision should be defended at tribunal they will prepare and present the case at tribunal, liaising as necessary with Solicitor’s Office legal advisors.
Preparation of case for tribunal - indirect taxes
The litigator (in consultation with the decision maker, policy/technical specialists and other interested parties such as the Solicitor’s Office legal advisors, as appropriate) will decide, in line with the Litigation and Settlement Strategy, see ARTG1020, whether the case should be defended before the tribunal. If the litigator decides that HMRC should not defend the case at tribunal see ARTG8420.
Presentation of case at tribunal - direct taxes
In a small number of very complicated appeals the litigator, in consultation with other stakeholders, may consider that legal representation is needed. This should be agreed with Solicitor’s Office legal advisors and they will appoint counsel to present HMRC’s case, see ARTG8410.
Most applications to the tribunal will be presented by the decision maker. But in complicated cases the application may be presented by a litigator.
Presentation of case at tribunal - indirect taxes
In a small number of appeals defined in ARTG3170, the litigator, in consultation with other stakeholders, may consider that legal representation is needed. This should be agreed with Solicitor's Office legal advisors and they will appoint counsel to present HMRC's case, see ARTG8410.
Direct and indirect taxes - liaison between decision makers and litigators
Usually the litigator will be considered the case owner for the purposes of the Litigation and Settlement Strategy.
However, it may be clear from the papers that a specialist office or a policy/technical specialist is taking the lead in the case. Where this happens it is important that the litigator liaises with the specialist and that they decide who the case owner is and who will be responsible for making decisions about the conduct of the litigation.
In preparing the case for tribunal the litigator must act in line with HMRC’s Litigation and Settlement Strategy, ARTG1020.
If the litigator decides that HMRC should defend the case at tribunal they should liaise with the decision maker (and the review officer, policy and technical specialists, and Solicitor’s Office legal advisorsif appropriate).
The amount of contact will vary depending on the case, but for example it may be appropriate for the litigator to seek comments on
- the arguments to be put forward,
- obtaining witness statements etc
- whether or not solicitor’s or counsel’s advice or representation may be needed.
They should also make sure that
- all the relevant parties are aware of the hearing date, and
- know whether they are required to appear as a witness.
The litigator should always make clear in communications what the deadlines involved are and the consequences of non-compliance.
If the decision maker (or anyone else) is approached by the litigator for information they should make every effort to reply within the deadline or tell the litigator that they are unable to meet the deadline, to avoid delaying the statement of case or hearing.
If possible the litigator should approach the tribunal to ask for any necessary extensions of time, but this should be a last resort. Similarly, if the decision maker or any other stakeholder receives any information that might affect the case they should bring it to the litigator's attention immediately.
The litigator should keep the decision maker and other departmental stakeholders informed of progress as appropriate.
Outcome of tribunal
The litigator is responsible for reviewing the outcome of the tribunal hearing and liaising with interested parties (for example the decision maker, review officer if appropriate, policy, technical specialists, Solicitor’s Office legal advisors) in order for a decision to be made as to whether the case should be pursued to