A new front has opened in the struggle for open justice: a hearing in the usually public tax chamber of the First-tier Tribunal. In The Commissioners for HMRC v The Taxpayer  judges dealt with an attempt at keeping the identity of The Taxpayer to themselves. 

Mrs Justice Bacon and Judge Thomas Scott were ruling on a case which centres on decisions made by HMRC denying deductions for income tax purposes. The Taxpayer had been granted anonymity at an earlier hearing at the First-tier Tribunal; a decision which was appealed and the judges found erred in law. 

The judgment states: ‘The starting point in tax cases is that all hearings must be in public. Where a taxpayer brings a tax appeal, the principle of open justice will inevitably result in some intrusion into the taxpayer’s privacy. However, that is a necessary price in most cases.'

In this case, the First-Tier tribunal had failed to consider whether its direction granting a private hearing was proportionate. 'The Taxpayer has obtained the benefit of privacy for all preliminary proceedings, without having produced any evidence of harm or prejudice, for an open-ended period, in a situation where, should he decide to withdraw or settle his appeal and not pursue the privacy and anonymity application, that benefit would not be reversible.

‘Nor is it an outcome which should be open to taxpayers, since it results in a blanket derogation from open justice by the back door.’

So, it sounds as if The Taxpayer (which to Obiter sounds like the title of a bad action movie) has lost. But there is a last-minute plot twist. The decision will remain anonymised if permission to appeal is granted either by the tribunal or Court of Appeal, the judges found. 

What a cliff hanger. Watch this space. 

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