Case No. UKUT-5-(AAC)

21. The Deputy Presiding Officer, for the reasons stated above (see para 13), determined that the application to adjourn was without merit and therefore determined to proceed with the PI in the absence of the Appellant. It was submitted by the Appellant’s legal team, both in writing and in oral arguments on the date of the appeal hearing, that in the first instance, this was an unfair decision as it resulted in the Appellant being unable to properly instruct his legal team and for them to fully prepare and present his case at the PI. It was submitted that the Appellant had received his call-up letter on 8 October 2021 and had left the bundle of papers for his solicitor at their office on 28 October 2021, in the knowledge that the PI was to take place on 16 November 2021. The Appellant’s solicitor had instructed Mr Finnegan BL, that same day and after a few days to consider the papers, on 1 November 2021, Mr Finnegan had sent directions to his Instructing Solicitors. On 8 November 2021, the Appellant’s solicitor was called away to England due to a death in the family, and upon their return on 15 November 2021, the day before the PI hearing, it became apparent that the case had not been prepared. This resulted in a late adjournment application being made on the day of the PI itself, to allow Mr Finnegan to take full instructions from the Appellant in order to present the case fully to the PI, a case which had the potential for the Appellant to lose his livelihood. 22. Mr Finnegan submitted that the Deputy Presiding Officer’s reasoning was flawed in that the pressures placed on the TRU for hearing time was an irrelevant matter in his decision on whether to adjourn the case. He quoted the Department for Infrastructure “Practice Guidance Document No. 8 (01/10/2019)”, paragraph 25 which states that the question of an adjournment should have regard to the following factors: the age of the case, the conduct of the operator, whether all relevant documentation is available, the length of the requested adjournment, the consequences of the adjournment, whether the applicant is at fault and any previous adjournments. While acknowledging that the request was made very late, Mr Finnegan argued that the Appellant was not aware of the listing pressures on the TRU time and that this was not a relevant consideration to take into account in any event. Further, it is not a mentioned in the Department’s Guidance document as something to be taken into account. He also submitted that the matter had a tight turnaround timeframe of 28 days from the date of the Appellant’s call-up letter, it was the first request for an adjournment, and no other person could be prejudiced by the adjournment, were it to be granted. In addition, he argued that the request was purely a result of unfortunate and unavoidable circumstances of the instructing solicitor being called away on family business, and only a short adjournment period was requested to complete the preparation of this case.23. In considering whether the decision of the Presiding Officer was correct, we conducted a balancing exercise, looking closely at the two sides of this argument, as well as giving consideration to the factors outlined in the Department’s Guidance Document No. 8. It is fair to say that the issue of pressure on the TRU hearing time was indeed mentioned by the Deputy Presiding Officer and was clearly on his mind when asked to adjourn this case. It does not however appear from the rest of his written decision, that the time pressures were a determining factor. The failure of the Appellant to take effective action in respect of the imminent PI date, failure to chase his solicitors, failure to provide the documentation requested and his failure to excuse his attendance at the PI, were the combined determinative factors in his decision not to adjourn. The Deputy Presiding Officer found all of these circumstances to demonstrate a lack of cooperation with the TRU/DfI and decided not to adjourn the matter. 24. Although this case was not aged, the conduct of the operator (the Appellant) was unsatisfactory in putting his case before the DfI, and the documentation that had been requested from him was not available for the PI, a matter entirely within his own control to address. While it is agreed that the adjournment requested was a short one, the Deputy Presiding Officer was aware of the time pressures of the TRU hearing and knew that a short adjournment was not likely to be possible. Consequently, a longer delay was more likely to be the outcome of an adjournment, which in turn, would not see a resolution to this case within a reasonable timeframe. Some fault clearly lay at the door of the Appellant in failing to take ownership of this matter and to ensure, in his own interests, that progress was being made. Weighing all these factors in line with the Guidance, it cannot be said that the decision of the Deputy Presiding Officer, in not adjourning this case, was wrong in law. He considered all the correct issues, weighed them appropriately, and came up with a legally sound determination on this issue. As an aside, the issue of the case not progressing while the Instructing Solicitor was away on personal business, is not a persuasive argument, despite the unfortunate circumstances. It is a matter of professional courtesy that any solicitor who is taken away from their work, for whatever reason, ensures that their clients are looked after in their absence, and in a firm where there is more than one solicitor, the case could well have been progressed with the assistance of Mr Finnegan, by another solicitor. Had Mr Finnegan’s directions been considered and dealt with some 16 days before the PI when they were issued by him, the matter could well have been progressed on the date of the PI itself. The decision not to adjourn was not wrong in law and this aspect of the appeal is dismissed.