[2024] UKUT 133 (AAC)

The hearing of this appeal was listed to begin at 10:15 a.m. The DVSA’s representative was present but Mr Rush, who informed the Upper Tribunal on 29 September 2023 that he intended to attend the hearing, was not. The clerk made a telephone call to Mr Rush at 10:20 a.m. who answered and informed the clerk that he thought the hearing had been listed for 10:30 a.m. and that he would arrive in “eight minutes or so”. Mr Rush had not arrived at the venue by 10:50 a.m. The clerk rang him again but, this time, the call was diverted to an answering service.

We invited the DVSA’s representative to make representations as to whether the Upper Tribunal should proceed in the absence of Mr Rush or anyone else to act as representative for the Appellant. The DVSA representative argued that we should proceed.

Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides as follows:

“If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal—

(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.”

We were satisfied that the Appellant (the lawful owner of the vehicle) was duly notified of the hearing. Indeed, Mr Rush informed us on the day of the hearing that he was on his way to the venue, but he did not appear. We also considered it in the interests of justice to proceed in the absence of a representative for the Appellant. Given the information from Mr Rush conveyed to us on the day of the hearing, we found it was more likely than not that Mr Rush would again fail to attend if we adjourned the hearing. The hearing began in Mr Rush’s absence at approximately 11 a.m.

We note that the judge remained at the venue on the day of the hearing until approximately 4:30 p.m., by which point Mr Rush had not attended, and, since then, Mr Rush has not contacted the Upper Tribunal to request a new hearing date.