Lyndsey Frawley

Background

Lyndsey was called to the Bar in 1995 and undertook her initial training and practice as a barrister in a common law set of chambers in London.

In May 1997, Lyndsey was persuaded to join the VAT disputes and litigation team within Deloitte. Such a move afforded Lyndsey the opportunity to work in a more specialised and technical area of law which was developing rapidly. The interplay between UK and EU law was of particular interest. Her role at Deloitte also enabled to continue her practice in litigation and to represent clients before the courts and tribunals in VAT matters (mixing her role as a barrister with that of a specialist VAT adviser and litigator). 

As such, Lyndsey developed a comprehensive understanding of VAT and EU law. Her experience and knowledge was accelerated by her involvement in the M&S challenge to the UK’s unlawful introduction of a ‘three-year cap’ on claims for overpaid VAT as implemented by Finance Act 1997 (as applicable from 19 March 1997)(“FA 1997”)

During the period 1997 to 2007, Lyndsey’s experience and practice continued to grow within the Big Four accounting firms and for two years as a Senior Associate at Ashurt’s in Sydney (assisting with the litigation in Australia’s ‘largest ever tax case’).

Lyndsey continued to work in the Big Four upon her return to the UK in 2004 and subsequently established her own independent VAT litigation support practice in 2007. She was engaged by a number of FTSE 100 clients and other large businesses, principally in the areas of VAT litigation and advice. During that time, she also extended her practice back into broader areas of commercial and employment law and other areas of public law and judicial review matters.

In October 2016, Lyndsey accepted an invitation to join Temple Tax Chambers. Although her focus has tended to be on tax (and in particular VAT) she has also assisted clients in other areas of commercial and public law.

More recently, Lyndsey has been instructed in advice and litigation in matters under the remit of the Home Secretary.  These matters became an increasing part of Lyndsey’s practice as a result of the interrelationship between HMRC and the Home Office in border disputes (eg stop and search by Border Force, giving rise to customs and duties issues; along with other civil penalty and immigration matters which fell within the remit of the Home Secretary). Lyndsey advises and represents the Home Secretary across all such areas; and also accepts instructions from individuals and companies affected by decisions of the Home Secretary. She also advises clients in respect of their duties and potential liability to penalties and how best to mitigate against the risk of penalties.

Lyndsey also remains busy in cases where residual issues have arisen out of the UK’s attempts to curtail claims for overpaid VAT by way of the introduction of FA 1997 (as noted above). Such cases have since given rise to other competing issues of public law, policy and practice; for example:

• The principle of ‘res judicata’ and ‘issue estoppel’ v a public body’s duty of ‘candour’
• The overriding duty and obligation on courts and tribunals to apply the ratios of all higher binding decisions upon them (and to apply them consistently and fairly) and the extent to which such principles are to weighted and balanced against other principles of law and policy
• The duties and obligations on public bodies to apply questions of law and policy consistently and fairly
• The duties on the courts and tribunals to provide equivalent and effective remedies to all persons in like circumstances
• The application of law in a purposive manner versus strict statutory interpretation (and the potential [in]consistency of approach in the same set of proceedings)
• The interplay of European and national law in circumstances where EU law is still binding upon the UK and the national courts

On 4 December 2023, the Court of Appeal handed down the most recent decision in the BT bad debt relief litigation, which addressed the question of whether BT (and other taxpayers) could otherwise bring a claim in restitution at common law where relief was unavailable to it under section 80 of VATA 1994.

BT’s case is that if section 80 has ‘no relevance’ to its case at all (as stated by the Court of Appeal in 2014); then HMRC cannot rely on sub-section 80(7) to defeat BT’s otherwise valid claim to restitution at common law. HMRC has since accepted that such proposition must be correct (although Falk LJ in the most recent decision from 4 December 2023 appears to take the view that section 80 does apply to part of BT’s case after all and is therefore defeated by sub-section 80(7)).

The Court of Appeal takes the view that HMRC has not been ‘unjustly enriched’ on the basis that BT did not make a claim under the Old Scheme for bad debt relief (despite the fact that it clearly could not so at the material time). The approach is also inconsistent with that advanced by HMRC in Iveco; whereby HMRC sought to distinguish the cases on the basis that BT was required to make a claim under the Old Scheme for bad debt relief. But that proposition ignores HMRC’s position historically (and even today) that late claims for bad debt relief are to be made on Form VAT 652 (unless a late adjustment meets the threshold test for claims under regulation 34 of the General VAT Regulations 1995 and may be made in a subsequent VAT return).  Such claims are section 80 claims and HMRC’s submissions (and the approach of the Court of Appeal) in Iveco ought (in counsel’s opinion) to have been applied mutadis mutandis to BT and other taxpayers in the same position. However, BT’s argument on that point has since been curtailed by the Court of Appeal’s refusal to grant BT permission to appeal in respect of its statutory appeal for a refund of overpaid VAT following Fleming and the submission of its claim for a refund of overpaid VAT on 30 March 2009 (which was at no time expressed to be a claim for bad debt relief under the UK’s Old Scheme for Bad Debt Relief) and was submitted to HMRC on the same basis as all other Fleming claims.

This case has since given rise to a myriad of issues of law, policy, practice and procedure. Counsel remains hopeful that this is not the end of the line and that the Supreme Court will have an opportunity to consider the issues afresh (taking into account all the twists and turns that have arisen since its refusal of permission to appeal to BT in 2014).

Please follow this link if you are interested in a more detailed analysis of the BT bad debt relief litigation and the wider issues arising therefrom.

Overview of Practice Areas

• Tax litigation support and advocacy in the specialist tax tribunals, High Court Chancery Division and Administrative Court and in respect of appeals therefrom
• Advice to clients and HMRC as to the merits of a statutory appeal against a decision of HMRC
• Tax advice generally, but with a particular emphasis on VAT and customs duties
• Specialist VAT advice to clients and their intermediary advisers in relation to complex transactions and cross-border commerce and industry
• Advice, representation and advocacy in associated matters where an issue of tax law arises (eg commercial and property disputes, insolvency proceedings, directors’ duties and professional negligence)
• Commercial and business disputes more generally in the High Court and County Court (including contract disputes, property disputes, company law and other regulatory matters, claims in restitution and other remedies)
• Statutory appeals and judicial review cases generally (including, the prosecution and defence of civil penalty appeals for and against the Home Secretary and other regulatory breaches giving rise to penalties)

Education, Professional Memberships and Appointments

• CIOT CTA Indirect Tax – 2004
• Bar Vocational Course (Inns of Court School of Law) – 1995
• Graduate Diploma in Law (City University) – 1994
• Jules Thorn Scholar and Major Entrance Exhibition – Middle Temple - 1993
• Commercial contract assistant – Andersen Consulting – 1992 to 1993
• Commercial sponsorship at British Aerospace Space Systems Limited – 1990 to 1992 (including sponsorship and funding for final year at Manchester University)
• BSc Honours (2:1) Management Science – Manchester University – 1988 to 1991

Directories - Professional Recommendations

• Shortlisted for Tax Junior of the Year – Legal 500 2023 

• "Lyndsey is a tenacious advocate who thoroughly argues for a client's corner and is unflappable in court. " - Legal 500 2022

• Fights hard for her clients and is a pleasure to work with. She is extremely efficient and on top of her brief and a very able advocate.’ - Legal 500 2021

• "She is an experienced VAT litigator; sensible and unflappable." - Legal 500 2020

Other Experience

12 years’ standing as a barrister in private practice

10 years practice in the UK and Australia as a specialist indirect tax adviser and litigator

Joined Temple Tax Chambers in October 2016

Appointed to the Attorney General’s Panel of Counsel from 1 March 2018

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