First - tier and Upper Tribunals: Preparing for tribunal: Groups of related cases: Initial procedures
As soon as two or more cases have appealed / notified their appeal to the tribunal, one of which is a potential lead case, then the tribunals caseworker / Solicitor’s Office should make an application to the tribunal to direct that Rule 5 / Rule 18 applies to those cases and identify the lead case(s).
Either party can apply in writing for a direction at any time up to the tribunal hearing, or orally during the hearing. So the application would usually be made to the tribunal before the date of the hearing.
As more related cases appeal / notify their appeal to the tribunal, we, or the customers, will need to make further applications in respect of those appeals, asking for the tribunal to identify them as additional lead cases or suspend (stay) them as they are related to the lead case(s).
These applications cannot be made until the potential lead case(s) have appealed / notified their appeal to the tribunal. So decision makers may need to liaise closely with the potential appellants and their advisers and time carefully the issue of their review offer (direct tax), or decision letters (indirect tax), so that key cases are notified / appealed to the tribunal at an early stage.
Rule 18 directions
Where a Rule 18 direction has been made and the lead case(s) identified, and the customer wishes their appeal to be a related case (bound by the decision in the lead case), then they should specify the appropriate lead case in their Notice of Appeal.
The following example shows how Rule 18 procedures may be applied in practice.
There are 250 related indirect tax cases. All turn on a particular legal point and an appealable decision on that point is to be made and sent to all of them within a short period of time. As all 250 cases are putting forward the same legal argument there is a strong case for applying Rule 18.
Following the first few appeals being made to the tribunal, the tribunals caseworker, having consulted the technical specialist and Solicitor’s Office, as appropriate, applies for a Rule 18 direction to apply to these cases and one of them to be identified as a lead case. The tribunal categorises the potential lead case as standard or complex, as appropriate see ARTG8390.
As more of the 250 cases appeal to the tribunal, when the tribunals caseworker receives notification that the customer has appealed to the tribunal, they should check that they have applied for Rule 18 to apply. If not, they the tribunals caseworker should make an application to the tribunal for Rule 18 to apply to the appeal. See also ARTG8560 about providing the tribunal with information for groups of cases.
Late appeal applications (direct tax)
If a customer has made an application to the tribunal for permission to accept a late appeal, then their appeal cannot be considered together with the other related cases until either HMRC or the tribunal has accepted / given permission to accept the late appeal.
Appeals about employment status and / or National Insurance contributions
If PSN Technical are not ring-mastering the litigation and
- the tribunals caseworker is considering asking the tribunal to apply Rule 5 or Rule 18, or
- the tribunal has decided to apply Rule 5 or Rule 18,
the tribunals caseworker should contact the relevant PSN specialist. PSN will decide whether to what extent, if any, they want to be involved with litigation.