The taxpayer appealed against a decision of the First Tier Tribunal not to allocate its appeal to the Complex Track. The material difference, so far as the taxpayer is concerned, between complex and other tracks is that the complex track has a “costs-recovery” regime. The others generally do not.

The UT confirmed that it is a matter for the Tribunal to decide, with reference to the likely length, complexity, financial sum and/or whether the case involved an important issue of principle, whether a case is to be ‘Complex’ or not. Further, the availability of the costs regime in the Complex Track is not, of itself, a directly relevant factor in making that decision.

Curiously, the UT went on to say that, even within the Complex Track, the Tribunal was not bound to apply the costs rules which are generally applicable in civil law matters, and that the "cost shifting power does not always result in the winner obtaining costs". It is likely that this view will be tested in the higher courts in the future however, for the time being at least, the victor’s right to recover its costs in the Upper Tribunal is currently uncertain.