We recognise that not calling witnesses can be a legitimate tactical move in our adversarial system of litigation, but a person who makes that move cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which that person has chosen to withhold: see Lord Diplock in Herrington v British Railways Board [1972] AC 877 at 930F et seq.
This says it all and this hearing brings to mind another recent one where failure to back up asserted facts by evidence/witnesses is fatal to a “fair result” in the appellants eyes.
Clearly we can only assume that there was no creating of false documents or telling lies during the COP9 investigation – or at least without the tribunal decision HMRC could not prove matters to criminal standards.
Whoever was doing the COP9 report either badly misjudged what the absence of evidence from the payers or was under instructions that could have no other outcome but massive fees for all concerned. Big firms don’t always make the right decisions in COP9 cases.