Applying for tribunal directions in a tax appeal

A direction is a case management order from the First tier Tribunal, for example giving more time, ordering documents to be disclosed or deciding one issue first. Either side can apply for one under rule 6 of the Tax Chamber Rules, in writing with reasons or orally at a hearing. An unless order is a direction that warns a party that if it does not comply by a set time its case will be struck out, or, for HMRC, that HMRC will be barred from the appeal.

What can the tribunal direct?

Rule 5(1) and (2) of the Tax Chamber Rules (SI 2009/273) let the tribunal regulate its own procedure and give a direction about the conduct or disposal of proceedings at any time, including one that amends, suspends or sets aside an earlier direction. Rule 5(3) lists specific powers, including to:

• extend or shorten the time for complying with any rule, practice direction or direction (rule 5(3)(a));
• consolidate appeals, hear them together or treat one as a lead case (5(3)(b));
• permit or require a party to amend a document, such as a statement of case (5(3)(c));
• permit or require a party or another person to provide documents, information or submissions (5(3)(d));
• deal with an issue as a preliminary issue (5(3)(e)) or hold a case management hearing (5(3)(f));
• decide the form of a hearing, adjourn or postpone it, or require a bundle (5(3)(g) to (i));
• stay the proceedings (5(3)(j)).

Rule 15(1) adds directions about evidence, such as which issues need evidence, whether expert evidence is allowed, limits on the number of witnesses and whether evidence is given orally or by witness statement; see evidence and witness statements. Rule 16 lets the tribunal summon a witness or order any person to answer questions or produce documents relating to an issue in the appeal. HMRC’s Appeals, Reviews and Tribunals Guidance at ARTG8500 notes that the tribunal can also determine or change the category of a case.

How do you apply for a direction?

Rule 6(1) lets the tribunal give a direction on a party’s application or on its own initiative. Rule 6(2) says an application may be made by sending or delivering a written application to the tribunal or orally during a hearing, and rule 6(3) says it must include the reasons for making it. There is no set form; HMCTS guidance (T242) gives the tribunal’s email as taxappeals@justice.gov.uk. Under rule 6(4) the tribunal must normally send written notice of any direction to every party and anyone else affected.

A clear application sets out:

1. the tribunal reference and the parties;
2. the exact direction you want, worded so the judge could copy it into an order, with a date for compliance;
3. the reasons, tied to the overriding objective in rule 2 of dealing with the case fairly and justly;
4. what you have already asked HMRC for and their response;
5. whether HMRC consent, since an agreed direction is quicker.

Copy the application to HMRC’s litigator so they can respond. Under rule 12, anything to be done by a particular day must be done before 5pm, and a deadline falling on a weekend or bank holiday moves to the next working day.

How do you ask for more time?

Use rule 5(3)(a). Ask before the deadline if you can, explain why the time is needed, and propose a realistic new date. The power cannot be used to extend a time limit set by other legislation, so rule 5(3)(a) does not itself extend the statutory 30 day limit for appealing; late appeals have their own test. Where a deadline has already been missed, the Upper Tribunal in Martland v HMRC [2018] UKUT 0178 (TCC) applied the three stage approach from Denton: how serious and significant the failure is, why it happened, and all the circumstances, giving particular weight to the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules and orders. Martland concerned a late appeal, but it drew that approach from cases on relief from sanctions for breaching rules and orders.

How do you get disclosure of documents?

In Standard and Complex cases, rule 27(2) requires each party, within 42 days after HMRC’s statement of case is sent, to send a list of the documents it has or can obtain and intends to rely on, and rule 27(3) lets the other party inspect or copy those documents unless they are privileged. That only covers documents a party intends to rely on. If you believe HMRC hold something relevant that is not listed, such as an officer’s notes or a technical adviser’s view of the facts, ask HMRC first and then apply for a direction under rule 5(3)(d) or an order under rule 16(1)(b).

ARTG8505 says a customer may apply for disclosure at any time after appealing, usually after HMRC’s statement of case and list of documents, and that the tribunal then decides whether to order disclosure. It also shows HMRC may resist disclosing sensitive intelligence. Under rule 16(3) nobody can be compelled to produce a document they could not be compelled to produce in court, and under rule 16(4) a person who did not have the chance to object can apply to vary or set aside the order. Basic cases involve minimal exchange of documents before the hearing under rule 23(2)(b), so a disclosure request there needs a particularly clear reason.

Applications for further information about HMRC’s case are also made this way. In HMRC v BPP Holdings [2014] UKUT 0496 (TCC), the taxpayer considered HMRC’s statement of case did not adequately set out HMRC’s position, asked for further information and, when HMRC delayed, applied for a direction requiring answers within 14 days.

What is an unless order?

ARTG8340 describes a direction warning that failure to comply will lead to strike out as “commonly known as an unless order”. Rule 8 sets out two levels:

Wording of the direction	Effect of non compliance	Rule
Failure “would” lead to strike out	The appeal, or that part, is struck out automatically	8(1)
Failure “could” lead to strike out	The tribunal may strike out	8(3)(a)

Rule 8(7) applies the same rule to HMRC as respondent, with strike out read as barring HMRC from taking further part in the proceedings. Rule 8(5) and (6) let an appellant whose appeal was struck out under 8(1) or 8(3)(a) apply for reinstatement in writing, received within 28 days after the tribunal sent notice of the strike out; HMRC can apply in the same way to lift a bar. The Upper Tribunal in HMRC v Breen [2023] UKUT 00252 (TCC) applied the Martland test to reinstatement after strike out for breach of unless directions, and in Lingajothy v HMRC [2023] UKUT 00063 (TCC) dismissed an appeal against a refusal to reinstate. See what if HMRC misses a tribunal deadline.

What other sanctions are there?

Rule 7(1) says a failure to comply does not of itself make the proceedings void. Under rule 7(2) the tribunal can waive the requirement, require the failure to be remedied, strike out or bar under rule 8, or restrict a party’s participation. Rule 7(3) lets it refer certain failures, such as refusing to attend as a witness or produce a document, to the Upper Tribunal, which ARTG8510 notes may involve a financial penalty. Rule 15(2)(b) also allows evidence to be excluded if it was not provided within the time a direction allowed.

Can you challenge a direction?

Yes. Rule 6(5) says a party who wants to challenge a direction should apply for another direction amending, suspending or setting aside the first. Appeals to the Upper Tribunal against case management decisions are possible only on a point of law; in NTK Leisure Ltd v HMRC [2022] UKUT 00289 (TCC) the Upper Tribunal considered its limited role in such appeals and dismissed an appeal about reinstatement after breach of an unless order.

Illustration only. In a Standard case HMRC’s list of documents omits the visit notes on which a penalty was based. The appellant asks for them twice without reply, then applies for a direction that HMRC produce the notes within 21 days, explaining why they bear on the dispute. The tribunal makes the direction. HMRC miss the date, so the appellant applies for a further direction stating that failure to comply within 14 days will lead to HMRC being barred.

What are the common mistakes?

• Writing to the tribunal without saying what direction is wanted.
• Asking for an unless order before an ordinary direction has been made and missed.
• Ignoring the difference between “would” and “could” in an unless order.
• Missing the 28 day window for reinstatement after a strike out.

For how directions fit the wider timetable, see tax tribunal appeal categories.

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Related Accountapedia entries

• Making a late appeal to HMRC or the tribunal
• Costs in tax tribunal appeals
• Lists of documents in tax tribunal appeals
• Asking the tribunal to make HMRC close an enquiry
• Tax appeals to the Court of Appeal and Supreme Court

Sources

• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• GOV.UK: Manual page ARTG8500
• legislation.gov.uk: SI 2009/273
• GOV.UK: How to appeal to the first tier tax tribunal
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• GOV.UK: William martland v the commissioners for hm revenue and customs 2018 u
• legislation.gov.uk: SI 2009/273

Reviewed by Christine Anderson, Broker, Solar Protect. Last reviewed 24 October 2026. Part of Accountapedia, the Solar Protect guide to UK tax and accounting. This page is general information, not personalised advice.