Late appeal refused after solicitors’ administrative errors

Post: Solicitors said notice was delayed by six weeks

A tribunal has refused to allow a party to appeal out of time after mistakes by its solicitors meant the deadline was missed.

The First-tier Tribunal (Tax Chamber) said that, while a delay by a representative was no different from a delay by the litigant, “if anything, a professional firm of solicitors has a much higher threshold to surmount before this kind of lapse and oversight within a practice can give rise to a sufficiently good explanation for any delay”.

It continued: “After all, these are professionals paid by their clients to observe time limits, among other things, on their behalf; this is a firm with specialism in litigation; they owe their clients such professional duty to ensure time limits are not breached; they have to put in place professional indemnity to cover the consequences of such lapses.”

KPF Civil Building and Civil Engineering Ltd v Revenue & Customs (PROCEDURE : Other) [2018] UKFTT 493 (TC) sought permission to allow the applicant to appeal against an assessment for excise duty having missed the deadline.

The applicant’s solicitors, Northern Ireland firm Logan & Corry, claimed the original appeal application was delayed in the post, arriving six weeks after it was sent.

Then an internal problem meant that there was a three-and-a-half month delay in dealing with a reply from the tribunal saying that the notice of appeal needed to include a request for an extension of time and the reason why the notice was not provided in time.

The tribunal said that, while it had no issue as to the credibility of conducting solicitor Conor Sally, “we do not find Mr Sally’s evidence reliable, or in any event, conclusive as to matters of fact”.

As to the first delay, the tribunal concluded that the appellant failed to prove that the notice had been posted when the law firm said.

“It is Mr Sally’s claim that the date of posting of the notice was by first-class post on 13 April 2017, which would mean that the notice of appeal had been in limbo for some six weeks before being delivered at HMCTS on 24 May 2017.

“The notice was neither lost nor returned as undelivered, but would have undergone an odyssey of a six-week duration.

“Six weeks is a long time for an inland first-class post to be cast around in the postal system. The date of receipt of the notice cast doubts as to the veracity of the date of posting being 13 April 2017.

“Notwithstanding the affidavit served by Mr Sally, the date of 13 April 2017 remained a claim unsubstantiated by any proof of posting.”

A log maintained by the administrative staff at Logan Corry of the outgoing post on 13 April 2017 was not “conclusive”, the tribunal said.

“Error in logging or omission in posting could have happened, or the alleged post to HMCTS on 13 April 2017 could have been for another matter unrelated to the current appeal.”

Mr Sally said the second period of delay was caused by an administration error, with the returned notice of appeal in early June not scanned into the system. He only became aware of it when it physically appeared on his desk in mid-September.

The tribunal said: “We accept Mr Sally’s explanation. However, the error arose within a professional firm of solicitors which can be properly relied upon to implement an internal procedure of check and follow-up on all important communications.

“Mr Sally himself acknowledged that a notice of appeal is not a run-of-the-mill kind of correspondence and that was the reason he could remember the specific circumstances in re-lodging the notice.”

Judge Heidi Poon, sitting with Patricia Gordon, said it was “odd” that the law firm had not taken any action in the apparent absence of any communication from the tribunal service for over five months.

“Admittedly, Mr Sally said he had a case load of some 300 to 400 clients covering a spectrum of matters, which would include matters being litigated…

“Even if Mr Sally was unable to follow up all his client matters, the case management system should have integrated certain dates for follow up of matters, and for these dates to be highlighted to the case worker or to a team leader with oversight.

“It was readily admitted by Mr Sally that it was an administrative error, and one which the tribunal does not consider to be a good explanation for the delay in re-lodging the appeal.”

Highlighting the higher threshold for solicitors to prove this kind of mistake was a good explanation for the delay, the tribunal added: “Indeed, the circumstances that caused the second period of delay suggest an internal office system with weaknesses which might have been a contributory factor, even if not the cause, of the first period of delay.”

Refusing relief, the tribunal concluded: “Following the approach in Mitchell, the guidance from the Upper Tribunal (Tax Chamber) in HMRC v McCarthy & Stone (Developments) Limited [2014] UKUT 0196 (TCC) makes it clear that this tribunal likewise should adopt a ‘tougher and more robust’ approach in considering applications to extend time.

“Neither the circumstances that had caused the appeal to be out of time, nor the alleged merits of the appeal, give rise to any good reasons for the tribunal to depart from the tougher and robust approach in its exercise of discretion in the present case.”

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