[2023] UKUT 143 (AAC)

Both parties have made detailed, measured and helpful written submissions on the appeal. There has been no application from either party for an oral hearing of the Upper tribunal appeal (and indeed Dr Lin throughout has indicated that he is content with paper determinations). I am satisfied that it is fair and just to proceed to a decision on the papers.

The Appellant’s grounds of appeal to the Upper Tribunal, although not overly long, are nonetheless written in a somewhat discursive style. Certainly he has not highlighted and enumerated specific grounds of appeal. Be that as it may, it is tolerably clear that the FTT’s strike out decision is challenged on the basis that it involves an “abuse of discretion constituting procedural error”. In support of this proposition, it is further argued that, as the strike out power is an extraordinary and draconian power, it follows that the rationale for its exercise must be explained. However, it is submitted that the FTT’s decision in this case involves “the unexplained conclusionary statement ‘not fit for a full hearing’ as explanation [and] is effectively unreviewable thus undermining appellate review”. Furthermore, it is argued that an allegation of vexatiousness sets a high bar and “an appeal cannot be struck for vexatiousness without an articulated rationale”.

The Commissioner, in his Response, opposes the appeal, identifying the central issue as being whether the FTT was correct to strike out the Appellant’s case. His submission, in short, is that the appeal to the Upper Tribunal should be dismissed. In the first instance the Commissioner argues that the FTT was correct to strike out the case for the reasons it gave. Alternatively, if the FTT were to be found to have erred in law, the Commissioner contends that the Upper Tribunal should remake the FTT’s decision and strike out Dr Lin’s case for itself. These submissions are considered in more detail below.

The Appellant’s Reply reiterates several themes from the Notice of Appeal, but also takes issue with the Respondent’s characterisation of the main issue in the appeal. Dr Lin asserts that the “sole issue” now is rather the sufficiency and adequacy of the reasons for the FTT’s decision. He states that he “has not sought permission to appeal the strike out itself” and has “not put the merits of the strike out Decision before this Court”. He proposes, by way of remedy, that the matter is “remanded” back to the same FTT judge for the reasoning for the strike out decision to be explained.