[2023] UKUT 132 (AAC)

The Appellant submits that the Tribunal’s decision was given some eight months after it heard the Appellant’s appeal, and some seven months after post-hearing written submissions were filed. The Appellant argues that it was essential for the Tribunal to have retained a fresh memory of the only oral evidence given, that of Mr Budhdeo. Despite Mr Budhdeo’s vigorous and lengthy cross-examination on his three witness statements, the Tribunal’s reasons dealt with his oral evidence in “remarkably short fashion” while his witness statement evidence, by contrast, took up some four pages of the reasons. Of particular significance was the Tribunal’s adverse assessment of Mr Budhdeo’s credibility since, in the words of Mr Coppell’s skeleton argument for the Appellant, “immediacy has a premium for this sort of assessment, with time prone to distort highly subjective reactions such as these, and the memories on which they depend rapidly collapsing into a memory of the memories”.

The Commissioner concedes that the delay in the Tribunal giving its decision was ‘not ideal’ but observes that some 10 pages of the Tribunal’s reasons were devoted to dealing with post-hearing written submissions, which were necessary because the Appellant’s skeleton argument had raised “two new and weighty legal issues”. This misses the point, argues the Appellant, and overlooks that the submissions were drafted within “a couple of weeks of the hearing” and filed with the Tribunal some seven months before it gave its decision.

The Appellant argues that the Commissioner relies on a ‘leading authority’ – Bangs v Connex South East [2005] EWCA Civ 14 – that has been overtaken by more recent Court of Appeal authorities. These authorities “speak of” judgments being delivered within 3 months of a hearing (see Bank St Petersburg PJSC & Anor v Arkhangelsky & Anor [2020] EWCA Civ 408, [2020] 4 WLR 55; Plant v Pickle Properties Ltd [2021] UKPC 6; NatWest Markets plc v Bilta (UK) Ltd [2021] EWCA Civ 680; Dansingani & Anor v Canara Bank [2021] EWCA Civ 714). The delay in giving a decision rendered the Tribunal’s evaluative conclusions unsatisfactory, unfair and unsafe.

The Commissioner argues that the leading authority on delay in the tribunal context is Bangs in which a decision was promulgated more than a year after a tribunal heard evidence on a claim of racial discrimination. The Court of Appeal found that the tribunal’s decision was ‘not unsafe’ and, at [43], held that, of itself, unreasonable delay cannot be a free-standing ground of appeal. In order to succeed, a challenge which relies on unreasonable delay must demonstrate that a tribunal’s decision is, as a result, perverse in its conclusion or on specific matters of fact and credibility. The Court went on to say that there may be exceptional cases of unreasonable delay which may properly be treated as a serious procedural irregularity or “material irregularity giving rise to a question of law” in tribunal proceedings and “such a case could occur if the appellant established that the failure to promulgate the decision within a reasonable time gave rise to a real risk that, due to the delayed decision, the party complaining was deprived of the substance of his right to a fair trial under article 6(1)”.

Bangs applies by analogy to the Upper Tribunal, argues the Commissioner, in the exercise of its jurisdiction over the First-tier Tribunal. It is to be preferred to subsequent case law relied on by the Appellant since those authorities concerned delay in mainstream courts and, in any event, concur with Bangs in that, of itself, delay is not a ground for allowing an appeal.

The Commissioner submits that the Appellant’s arguments scarcely identify any finding of fact that is unsafe, or wrong, due to delay. The Appellant asserts the importance of Mr Budhdeo’s evidence but goes little further. The only specific complaint concerns the Tribunal’s adverse credibility finding but, significantly, the Appellant does not challenge what was said in the Tribunal’s reasons concerning (a) Mr Budhdeo’s initial denial that he was the ‘S Budhdeo’ recorded at Companies House as director of a company, and the director was in fact his brother; and (b) when this denial was shown to have been false, Mr Budhdeo’s claim to have forgotten about this particular directorship. The Commissioner submits that this is hardly a forgettable matter. The Appellant really argues that it was unsafe for the Tribunal, which is likely to have taken a contemporaneous note of the evidence given, to have decided some months later whether it believed Mr Budhdeo. That argument is hopeless, submits the Commissioner.