[2024] UKUT 312 (AAC)

This concerns the handling of the PI.

We have no doubt that the PO was determined that the PI would be conducted according to his terms – see the exchanges at 18-19, 26-38, 50, 76 308-314 and 351-356 of the transcript of the PI.

The PO also took issue with what he determined was a somewhat offhand attitude by the Appellant and Mr McNamee during the consideration of evidence relating to odometer readings – see the exchanges at 285-291. It is clear that the PO took this into account in his decision – see paragraphs 61 and 62.

Further, the PO took issue with what he determined was the manner in which the Appellant turned to Mr McNamee when he was asked questions. He was informed about the Appellant’s accident but dismissed this as a plausible reason for the Appellant’s actions during the PI – see paragraph 63 of his decision.

We are of the view that there is a strong case for a determination that the way the PI was conducted was unfair. This is principally related to the PO’s determination that he would not permit Mr McNamee to direct the questioning and/or make initial submissions on the issues arising. We are also concerned about the manner in which the PO dismissed the issue about the Appellant turning to Mr McNamee and the implication that there was a degree of collusion between them.

The usual response where there is a determination that the conduct of a PI was unfair is to allow the appeal and remit the case for a new PI. We pause here because we are not recommending that approach. That is because we are of the view that the appeal should be allowed on a more substantive issue.