Frankie Dettori loses anonymity battle
The Upper Tribunal has firmly rejected the contention that an appellant in a tax appeal should be entitled to permanent anonymity in circumstances where the applicant withdraws their appeal on being refused anonymity.
Franki Dettori, the former jockey, appealed against a HMRC decision refusing to allow certain deductions on his taxable income. During that appeal, Dettori successfully applied to the First-tier Tribunal for the case to be heard in private and his identity anonymised pending a decision on anonymity at the substantive appeal, a decision which was later overturned by the Upper Tribunal (UT).
As the UT observed: “The practical effect… has been that the taxpayer [Dettori] has been able to avoid the open justice principle for all preliminary proceedings for over two years, without any consideration being given to his reasons for seeking privacy or anonymity.” That was not a position that could be justified and amounted to “a blanket derogation from open justice by the backdoor”.
Dettori subsequently dropped his tax appeal and argued that where an individual wishes to avoid loss of privacy and makes an application to the courts/tribunals to find out whether they are entitled to privacy in relation to those proceedings, the very process of applying for privacy should not be what causes privacy to be lost. Accordingly, if the application is refused, then an applicant should have a choice between continuing with the proceedings with no anonymity or withdrawing from the proceedings and maintaining anonymity.
The Upper Tribunal firmly rejected this argument, holding that the principle of open justice may only be derogated from when strictly necessary and where the applicant has shown a justification for anonymity. In particular, the Tribunal noted that "it is not the application for privacy which leads to publicity (if a privacy application is refused) but the choice to bring a tax appeal (or any other civil proceedings). Seeking privacy or anonymity in relation to that appeal may create an additional risk of publicity as a practical matter, but, again, that is the applicant's informed decision to bring the appeal, in a system where open justice is the norm".
The UT also rejected the argument that rejection of the anonymity application would have an undue deterrent effect on all privacy or anonymity application. “A person who is party to civil litigation and who makes a privacy or anonymity application does so in the knowledge of the risk that the application might itself attract publicity, either incrementally to the litigation itself or in its own right. The risk that the application is refused will be measured by an applicant by reference to the nature and strength of their reasons, and the evidence to support those reasons, in making the application. [The taxpayer's] formulation seeks to reduce the risk to zero in all cases, regardless of the merits of the case for anonymity. In rejecting that formulation, the only deterrent effect should be in respect of tactical, unmeritorious or unevidenced applications. That outcome would be both desirable and entirely consistent with the principles we have endorse above.”
The Upper Tribunal confirmed that the starting point in tax cases is that all hearings must be in public. Where a taxpayer brings a tax appeal, the principle of open justice will inevitably result in some intrusion into the taxpayer’s privacy, the UT held, but there is an obvious public interest in it being clear that the tax system is being operated even-handedly, an interest that would be compromised if hearings were in private.
A claim that the taxpayer's Article 8 rights would be unjustifiably violated must first require proof as to the harm and second requires a balancing exercise between that harm and the principle of open justice. In this case, the taxpayer had not offered any argument as to how his Article 8 rights would be harmed or how any such rights should be balanced against the principle of open justice.
Jude Bunting KC and Sarah Palin instructed by Simons Muirhead & Burton acted for Times Media Limited and News Group Newspapers Ltd.
The judgments are available here:
The Commissioners for HMRC v The Taxpayer [2024] UKUT 364 (TCC)
The Commissioners for HMRC v The Taxpayer [2024] UKUT 12 (TCC)
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