Eclipse Film Partners No 35 LLP v Revenue and Customs Comrs (No 2)
 UKSC 24;  WLR (D) 254
2016 April 13; May 11
Lord Neuberger of Abbotsbury PSC, Lord Mance , Lord Sumption , Lord Toulson , Lord Hodge JJSC
Tribunal — First-tier Tribunal — Practice — Costs — — Procedure Rules for tax assessment appeals — Rule giving tribunal general case management powers — Further rule giving tribunal power to make order for costs in specified circumstances including appeals allocated to complex case category — Right of taxpayer to disapply complex case costs power in favour of normal rule that each side pay own costs — Appellant taxpayer exercising right to disapply — Subsequent directions hearing — Tribunal order that taxpayer prepare court bundles with revenue sharing cost of production — Appeal dismissed and taxpayer invoicing revenue for half costs of preparing bundles — Revenue seeking quashing of order to pay half costs — Whether power to make costs order under general case management rule — Whether power limited to circumstances set out in specific costs rule — Whether order to be quashed — Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (SI 2009/273 (L1)) (as amended by Tribunal Procedure (Amendment No 3) Rules 2010 (SI 2010/ 2653 (L 16), r 6(4)), rr 5, 10
The taxpayer company appealed to the First–tier Tribunal (Tax Chamber) against an adverse decision made against it by the revenue. Pursuant to rule 23 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, the appeal was allocated to the complex case category, so that by rule 10(1)(c) the tribunal had power to make a costs order save where, within 28 days of the allocation, the taxpayer exercised the right to disapply such power to make a costs order, which the taxpayer company did. On a directions hearing the tribunal, having ordered that the taxpayer company should prepare the hearing bundles, made an oral direction that the costs of preparing those bundles should be shared. The revenue did not appeal that direction and after the substantive appeal, which was dismissed, the taxpayer company invoiced the revenue for half the cost of preparing the bundles. The revenue applied to the First-tier Tribunal to set aside the direction on the ground that the its jurisdiction to make a costs direction was limited to the circumstances set out in rule 10, namely appeals allocated as complex cases where the taxpayer had not exercised the right to disapply, and cases where the tribunal decided to make a wasted costs order under section 29(4) of the Tribunals, Courts and Enforcement Act 2007 or considered that a party or its representative hds acted unreasonably in bringing, defending or conducting the proceedings. The tribunal held that its general case management powers under rule 5 of the 2009 Rules extended to directing that the costs of compliance with a case management ruling be borne in a particular way by one or both parties, and that rule 10 did not curtail those case management powers. It therefore dismissed the application. On the revenue’s appeal, the Upper Tribunal held that rule 10 was exhaustive of the First-tier Tribunal’s power to make orders in respect of costs and therefore the order for sharing the costs of the bundles preparation had been made without jurisdiction and should be set aside. On the taxpayer company’s appeal, the Court of Appeal upheld the Upper Tribunal’s decision.
On the taxpayer company’s further appeal—
Held, appeal dismissed. It was the intent of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 that cost-shifting between parties should not occur save in the specific circumstances specified in rule 10 and it followed that the Tax Chamber of the First-tier Tribunal could only make an order that a party pay any of the other side’s costs if, and to the extent that, one of the provisions of rule 10 could be invoked. Since the tribunal’s order, by envisaging that the taxpayer company would incur the expense of the preparation of the bundles but then recover half of that expense from the revenue, was plainly an order for costs, but one which fell outside the ambit of rule 10, it could not be enforced (post, paras 15–17).
Per curiam. Rejecting the taxpayer company’s case does not mean that the First-tier Tribunal cannot give permission to amend, or grant an adjournment, on terms as to costs. There is nothing in the Rules which would prevent the tribunal from deciding that it will only give a party permission to amend, or to grant an adjournment, on terms that it pays the other party’s costs wasted or incurred as a result of the proposed amendment or adjournment. However, that is not what happened in this case (post, para 20).
Decision of Court of Appeal  EWCA Civ 184;  CN 314 affirmed.
Jolyon Maugham QC and Kate Balmer (instructed by GRM Law) for the taxpayer company.
Rajesh Pillai (instructed by Solicitor, Revenue and Customs Commissioners) for the revenue.
Reported by: Colin Beresford, Barrister