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I entirely accept Mr Cockshutt's general point. But the government isn't simply in the same position as a private entity pursuing its private interest, is it? At least in theory it's representing the interests of the public, especially in a tax case where parliament has voted taxes to enable it to carry out public functions. No-one suggests that it shouldn't have to comply with directions and be appropriately sanctioned for a failure, but what was the real prejudice here to BPP that couldn't have been remedied by an award of costs and interest if it wins in due course? More generally, suppose this was not a tax case but a hearing before the security tribunal in a terrorism case? Are we happy that after some compliance mess-up Mitchell should be applied in its full rigour and the government should be debarred from putting forward evidence of what it thinks the appellant is connected with? Because that's what the Court of Appeal's judgment implies.

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