Email blocked by tribunal’s firewall not validly served

Email: Has to be received to be validly served

An email blocked by a firewall at the First-tier Tribunal (FTT) did not constitute valid service of an appeal, a judge has ruled.

However, Judge Philip Gillett ruled that although notice of appeal was not effectively served on the FTT until more than four years later, permission for late notification should be granted.

The tax chamber of the FTT heard that Jeffrey Ashfield’s accountant, Ms Underdown, attempted to serve an appeal to demands from HM Revenue & Customs (HMRC) totalling over £386,000 plus interest in February 2015.

Judge Gillett said there was no record that this was received by the tribunal.

“Importantly, it appears that Ms Underdown’s email was more than 10MB in size, because it included four appeals, and it is likely that this would have been rejected by the tribunal’s firewall.

“Ms Underdown did not receive any acknowledgement from the tribunal but it is unlikely that she realised that she should have received one.”

HMRC referred the debt to its debt management department, which sent a demand to Mr Ashfield. Ms Underdown contacted the HMRC’s review officer, and after her email to the tribunal was blocked by HMRC’s firewall, she sent it again in four separate emails, which went through.

Four years later, in February 2019, when HMRC’s debt management department contacted Mr Ashfield again about the debt, Ms Underdown responded by sending a letter to the FTT referring to her 2015 email. This constituted valid service.

Delivering judgment in Ashfield v HMRC [2020] UKFTT 0110 (TC), Judge Gillett said: “The problems with the correct delivery of electronic material are well known and anyone hoping to rely on email as a consistent and reliable provider of delivery services knows that they are taking a risk in this regard.

“In summary therefore, I have come to the conclusion that in order for a notice to be validly served by email, then it must actually be received by the intended recipient.

“It is not in my view sufficient for the notice to be received by the tribunal’s server, even if I were able to make such a finding of fact.

“I also find that, on the balance of probabilities, the notice of appeal sent on 20 February 2015 was not received by the tribunal service and that therefore the notices of appeal which Ms Underdown attempted to serve on 20 February 2015 were not validly served.”

However, Judge Gillett said Mr Ashfield faced a demand for “substantial sums”, so the potential prejudice of refusing permission for a late appeal would be “severe in the extreme”.

Bearing this in mind, together with the fact that Mr Ashfield may have “an arguable case” and his accountant believed a valid appeal had been made, Judge Gillett granted permission for late notification of the appeal.

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