NEWSAND LTD v Revenue & Customs (PROCEDURE - application to strike out appellant's appeal on grounds that no reasonable prospect of success)

On the questions of law, I accept that there are many similarities between the Ladson Preston case and this case. For example, the issue concerning whether it is appropriate to take into account works that are commenced on the day of completion, but after the time of completion strike me as equally applicable to the present circumstances. However, Ladson Preston is not on all fours with this case. There are arguable differences between a "process of construction" and a "process of adaptation" - not least because in a process of adaptation an existing building will always exist and so the requirement for there to be "a physical manifestation" of a building in the case of a process of construction (which is critical to the reasoning in Ladson Preston ) do not arise.

It follows that I am not persuaded that, even if the appellant were to succeed in proving all the facts that the appellant offers to prove, the appellant will not succeed in this case. In my view, therefore, the appellant's case has a realistic prospect of success in the sense that the appellant's case is not merely fanciful and should be permitted to proceed to full hearing.

In reaching this conclusion, I take into account the obligation on this Tribunal to decide cases fairly and justly in accordance with the overriding objective (FTR 2) and in particular the obligation to deal with a case in a way that is proportionate to the importance of the case and avoids unnecessary delay.

I can understand HMRC's desire to bring matters to a conclusion as swiftly as possible, but this case is not so clear cut as to justify depriving the appellant of the opportunity to present all its evidence and have the case determined following a full hearing.

For these reasons, I refuse this application.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to "Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)" which accompanies and forms part of this decision notice.