The short answer is yes, it is possible to have sight of the Judge’s case notes, in the right circumstances. Moreover, it is possible for the parties to also seek to rely on their own notes of the proceedings, if necessary, to resolve points which were heard by a tribunal prior to the issue of its decision. Most cases involve findings of fact (i.e. who, what, when, where, why) in even the most plain vanilla disputes. Clearly, case preparation is key to ensure that each and every fact necessary to support a taxpayer’s view of the tax consequences of what they have done is established on the balance of probabilities.
Facts are established by contemporaneous documents and relevant witness evidence. At an appeal hearing the parties make submissions on the evidence, and witnesses are cross-examined to establish those facts. However, how crucial is it to make a note of what is said by each party and any witness evidence?
The short answer is that it is crucial to capture the submissions, and particularly the evidence of a witness during the hearing. It is also crucial to do so because the Judge may issue a decision which fundamentally misquotes the evidence given during the proceedings and/or fails to capture the evidence of a witness and/or submissions made by a party (which may be relevant to identifying the issues decided by the Judge). In these circumstances, a clear record is required in order to establish possible grounds of appeal to challenge the decision. It is a trite point that an appeal can only be made for error of law, but such an error includes the situation where there are findings of fact which have ignored relevant considerations, have taken into account irrelevant considerations or are so plainly wrong that no reasonable judge could have reached them: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at [36].
As discussed below, where there is a dispute as to what was said and / or done during the proceedings then it is necessary to have access to a record of the proceedings. It is a little-known point, that such a record can include asking for the Judge to resolve a dispute on the evidence by reference to the Judge’s note. Conflicts do sometime arise as to the recollection of what occurred during proceedings. For example, evidence relied on may not be in a witness statement, but might be said to have been given orally in the course of cross-examination. However, the parties’ respective legal teams may have different recollections as to what was said or not said.
Permission to record
The starting point is that it is necessary to make a written note because it is unlawful to record proceedings using any tape recorder or other instrument for recording sound unless permission has been obtained (s9 of the Contempt of Court Act 1981).
Recording submissions and evidence
Evidence during court proceedings can be captured in the following ways (subject to obtaining the appropriate permission):
- Transcription: The gold standard is to arrange for a verbatim record of proceedings to be to be obtained whilst the hearing is underway such that the record is streamed to representatives’ screens in real time (with the ability to make annotations and flag key passages in the evidence for future reference); or provided within a few hours after the conclusion of the day’s proceedings. Any transcription of the proceedings must be with the permission of the Judge. This is the gold standard because it places beyond doubt what was said in the proceedings.
- Court audio records: Most hearings are recorded but not all, such as First-Tier Tribunal hearings. Hearings before the Upper Tribunal, Court of Appeal and Supreme Court are recorded. An application on Form EX107 can be made to obtain a transcript of the proceedings and a fee is paid for the transcription (see Form EX107: Order a transcript of court or tribunal proceedings – GOV.UK (www.gov.uk)). Virtual hearings are recorded and can also be transcribed. However, the audio quality sometimes does fail and may capture only some or none of the proceedings.
- Taking a note: Absent live recording and access to the recording during proceedings, a written note by the legal representatives and Judge is the only way of clearly identifying a submission, question and answer during the hearing. This is the way in which a concession on points can be clearly identified and such notetaking provides a record of answers from a witness for use during the cross-examination of that witness, other witnesses and closing submissions on the evidence and law. It is always a very good idea to have at least one member of the litigation team to solely be focused on making a written note of the proceedings – with that being their sole focus without any distraction. It is all too easy to get distracted by thinking about the next submission, the next question and lose track of the verbatim points and answers being provided.
Judge’s note
If there is a conflict as to what was said and/or done during the proceedings, then the correct approach is to ask that the Judge to consult his or her written notes and for the Judge to resolve the conflict by reference to that note. The Judge’s conclusion is final. In Revenue and Customs Commissioners v Royal College of Paediatrics and Child Health and another [2015] UKUT 38 (TCC), Birss J (as he then was) stated:
“56. …the approach of the Employment Appeal Tribunal in Dexine Rubber Co Ltd v Alker [1977] ICR 434 should be applied. That approach was described as ‘well settled’ in Keskar v Governors of All Saints Church of England School [1991] ICR 493 at 498. Essentially the Dexine procedure amounts to obtaining the judge’s note and putting the criticisms of the note by a party or the parties to the judge for comment. If the judge replies stating that he or she believes the note is correct, then the conclusion must be accepted….
58The Dexine approach is a sensible and workable one. It can and in my judgment it should be applied in the Upper Tribunal. At one stage [Counsel for HMRC] submitted that Judge Demack had not actually stated in terms that he believed his note was correct but that is a bad point. The parties put their rival contentions about the judge’s note to the judge, he considered them and refused to change his note. Applying Dexine to this case would not permit [Counsel for HMRC] to advance the argument he does.”
Reference can be made to the party’s respective notes in order to seek clarification from the court. However, the written notes made by the parties during the hearing are not necessarily helpful to resolve a dispute on the evidence. This is because as commented in Royal College of Paediatrics there are the following inherent limitations on such notes in trying to resolve points:
“59. [Counsel for HMRC] did not suggest he should be sworn in and cross-examined on the issue. Even if one simply compares [Counsel for HMRC’s] note with that of [Counsel for the Taxpayer] and the judge, the fact that [Counsel for HMRC] wrote what he did in his notebook does not mean that it reflects what the witness was actually saying. As [Counsel for the Taxpayer) submitted, given the significance of that sort of evidence in a case of this kind, if such a thing had been said you might expect counsel for the taxpayer to notice and remember it. But he says he did not. Am I to turn both lawyers into witnesses and arrange for the cross-examination of both [Counsel for HMRC] and [Counsel for the Taxpayer]? As [Counsel for the Taxpayer] also pointed out, counsel’s notebook often contains notes which are not verbatim records of what a witness said. Notes can also reflect counsel’s thoughts about the case and points to take later. Even if I had the power which [Counsel for HMRC] submits exists, I would not exercise it in the appellant’s favour on this point. I am not satisfied that [the witness] gave the evidence contended for.”
The Dexine approach has been approved by the Court of Appeal. In King v HM Customs & Excise [2001] EWCA Civ 819 Peter Gibson LJ stated [16]:
“… As I have said, [the Applicant] had put in an affidavit making complaints about the Chairman, but, as is the invariable practice when there are such complaints, the Chairman was invited to comment. As the EAT [Employment Appeal Tribunal] held in Dexine Rubber Co. Ltd v Alker [1977] ICR 434 at pp.438,9 the Chairman’s account has to be accepted unless there is unanimity between those who appear for both parties before the Tribunal that the matters of complaint did in fact occur. I have already pointed out that the EAT said that the Chairman rejected the factual allegations made by Miss King. In those circumstances there can be no real prospect of success on that ground either.
Parties’ written notes
It is also possible that the Judge’s note is incomplete and, in this context,, an application can be made for a note or notes form the parties to be admitted. In Revenue and Customs Commissioners v Hicks [2020] UKUT 12 (TCC) HMRC applied for the late admission of their record of the oral evidence before the FTT, which was allowed by the UT. Having obtained a copy of the FTT judge’s manuscript note of the evidence, HMRC applied to admit their manuscript notes of the oral witness evidence on the basis that judge’s note of the evidence was incomplete. Permission was granted in circumstances where HMRC’s permission to appeal had been given by the FTT, in particular, on the ground that the evidence of the witness (the taxpayers’ accountant) had not been taken into account. The UT admitted the notes on the basis it was necessary to establish what evidence was before the FTT. In Hannah and another v Revenue and Customs Commissioners [2021] UKUT 22 (TCC) the UT admitted a solicitor’s note of cross-examination of a witness, which whilst not verbatim notes were relevant and to be taken into account in identifying where HMRC ‘had concerns’ at a number of occasions during the relevant period for assessing whether a discovery assessment was stale.
Practice points
If the hearing warrants the cost of a transcription service, then always ensure at the very least witness cross-examination is recorded so that an official copy of the proceedings is available – it helps with cross-examination and submissions. Moreover, always ensure that someone on the legal team is taking a comprehensive note of the proceedings. As can be seen from above, if there are points of dispute as to the facts following receipt of the court’s decision, then it is necessary to refer those points to the Judge for resolution. It is obviously important to ensure that before making any referral based on manuscript notes that a copy of the audio recording is obtained since it may satisfactorily resolve the issue. Clearly, in the event of any ambiguity then it will be necessary to rely on notes taken during the proceedings, and where appropriate ask the Judge to consult their notes.
