Allegations of “abuse of process” in tax cases are rare but came up in a recent Upper Tribunal decision, explains John Flood.
Foulser & Another v HMRC  UKUT 33 provides important guidance on the “fairness” and “supervisory” jurisdiction of the tribunals and helps practitioners avoid procedural traps.
The general doctrine of abuse usually takes one of four forms:
- Allegations that a person cannot get a fair trial, e.g. because of inordinate delay or defective disclosure
- Suggestion that the conduct of the state has been of a such a reprehensible nature that it should not be allowed to continue with the litigation
- Abuse of trying to re-litigate something already decided (Res Judicata)
- Misconduct during the course of litigation such as the suppression of evidence or witness threats
The first two categories are considered in this case, where the Foulsers had a long running tax dispute.