The Denton principles were considered by the First-Tier Tribunal Tax Chamber in Clarke v Revenue and Customs (PROCEDURE : Other) [2018] UKFTT 123 (TC). Here we look at two particular parts of the judgment: (i) the relevance of reliance on an advisor; whether a litigant in person should be treated differently.

“The risk of a poorly performing representative must (in general) fall on the litigant appointing that representative and not on the other party to the appeal.”


The applicant lodged appeals against assessments relating to underpayment of income tax.  He acted using an adviser.   No correspondence was sent to the applicant directly. That adviser failed to comply with certain orders and the appeals were struck out. An application for reinstatement was not successful.  The appellant instructed new advisers who, a year after the last hearing, applied for permission out of time to refuse to reinstate the income tax appeals.

The relevance of reliance on an advisor

The judge considered arguments based around the Denton principles in detail She also considered an argument that the appellant was acting by his adviser and should not be held responsible for those defaults.

33.           Ms Frawley’s case was that Mr Clarke should not be held accountable for the failings of his representative.  Her case was that Mr Clarke was not aware of the deadlines and should not be punished because they were missed.
34.           I do not agree.  While an appellant does nothing wrong in seeking to appoint a representative, the appellant has chosen to bring legal proceedings, and must accept the responsibility to pursue them as directed by the Tribunal.  The appointment of a representative does not absolve the appellant from such a duty:  that would be unfair on the other litigant, who has no choice over whether the appellant appoints a representative or as to who that representative is.  It is the litigant who appoints a representative who must (in general at least) take the burden as well as the benefit of what his representative does (or fails to do) in his appeal.  The risk of a poorly performing representative must (in general) fall on the litigant appointing that representative and not on the other party to the appeal.  To rule otherwise is manifestly unfair to HMRC, who had no choice or control of Mr Clarke’s decision to appoint a representative, and to whom the appellant’s representative owes no duty of care.
35.           Ms Frawley suggested the position is different where the appointed representative was not legally qualified and not insured.  She pointed out that the CPR would not allow someone who was not a legal representative and professionally qualified (or equivalent) to represent a person in court:  she suggested the Tribunal or HMRC should bear responsibility for Mr Clarke’s choice of Mr Horler because the Tribunal rules permit anyone (whether legally qualified or subject to a professional body and whether or not insured) to represent a taxpayer in the Tribunal.
36.           I do not agree that that is a reason for shifting liability for the appellant’s representative’s defaults to the respondents.  It is the appellant’s choice who to appoint as representative.  He must take responsibility for his choice.  It is not for the respondent to underwrite the appellant’s choice of an unqualified and uninsured representative.  And while the Tribunal’s rules, no doubt intended to improve access to justice, permit the appointment of an unqualified and uninsured representative, it is not responsible where the appellant chooses such a representative.
37.           While I accept that Mr Clarke chose someone recommended to him, and that for the first 12 months or so after the appointment he had no cause to complain about his representative, nevertheless he knew or ought to have known that Mr Horler held no professional qualification, was not professionally supervised, and was not insured.  It was his choice to appoint him.

Should litigants in person be treated more leniently?

38.           Ms Frawley also suggested that Mr Clarke should be treated as a litigant in person (as he was not legally represented) and that the courts were and should be more lenient to a litigant in person.  In reality, this amounted to much the same as the previous proposition that Mr Clarke should not be held accountable for the failures of his unqualified and uninsured representative.
39.           The day before the hearing, although none of us were aware of it at the time,  the Supreme Court issued its decision in Barton v Wright Hassall LLP [2018] UKSC 12 where the court said:
[18]…[Litigants in person’s] lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid [2015] 2 P & CR 3,[2014] EWCA Civ 1652. At best, it may affect the issue “at the margin”, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, …. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.
40.           The gist of this is that, while the Tribunal will do what it can to assist litigants in person, by and large litigants in person have no extra leniency in respect of compliance with the rules and directions of the Tribunal, although their status as litigants in person might have relevance in marginal cases where it is an explanation for the default.
41.           But I do not see that as being of assistance to Mr Clarke. He was not a litigant in person:  his defaults were not because he was inexperienced in litigation but because his representative let him down.  And while I will take that factor into account, for the reasons given at §§33-37 above, it is not normally a factor for leniency.