First-tier and Upper Tribunals: The tribunal hearing: Witnesses
The tribunals caseworker, having consulted Solicitor’s Office and the technical specialist if involved in the case, will make an initial decision about who should attend the hearing as a witness and give evidence on HMRC’s behalf.
HMRC witnesses may include the decision maker and / or the review officer, but the tribunals caseworker will initially decide who will be appropriate in each individual case.
Ultimately it is for the tribunal to decide who they require to attend the hearing. Tribunal Rules provide that the tribunal may summon any person, including decision makers and review officers, to attend a hearing as a witness. It may do this as a result of an application by HMRC or the customer, or on its own initiative.
In practise we usually agree to produce officers as witnesses without the need for a summons.
If the tribunal hasn’t made a direction setting out who should attend or issued a summons, and the case is not a Basic case, they are likely to assume that the decision maker will attend.
If for some reason we think that the decision maker should not attend or are unsure about who should attend, the tribunals caseworker should ensure that the tribunal is informed about this in advance of the hearing.
It is important that the judge sees any such notification sufficiently early that there will be time to take a different course of action if they require. To ensure that the judge sees this paper before the hearing, the tribunals caseworker should contact the Office Manager of the relevant Tribunals Service office.
If there are concerns about the safety of witnesses at the hearing, see ARTG8655.
A witness summons (or, in Scotland, citation) should include the time and place of the hearing. The summons may order the witness to answer any questions or produce any documents in their possession or control which relates to any issues in the proceedings.
It should also say what will happen if the witness does not comply with the summons.
The witness must be given at least 14 days’ notice of the hearing and the summons will make provision for and state who will pay the witness’s expenses in attending the tribunal, unless the witness is a party to the proceedings.
Only those who could be required to give evidence or produce documents in a law court in the same part of the UK can be required to give or to produce evidence at the tribunal.
The person summoned can apply to the tribunal to vary or set aside the summons if the have not had an opportunity to object to it. They must apply to the tribunal as soon as reasonably practicable after they received the summons.