[2023] UKUT 170 (AAC)

The Commissioner, in his Response drafted by Mr White, opposes the appeal, making six main points. First, the Commissioner accepts that for one panel member to absent themselves during evidence but to return for deliberations will, absent agreement (which must be “voluntary, informed and unequivocal”, per R (on the application of Hill)) be a breach of the rules of natural justice. Second, the Commissioner emphasises the importance of procedural flexibility in tribunals. Third, the Commissioner contends that on the facts Mr Shipton’s agreement was indeed “voluntary, informed and unequivocal”. Fourth, the Commissioner argues that Longmore LJ’s observation in R (on the application of Hill) (at [23]) is equally applicable here, namely that “there is something peculiarly unattractive” in a litigant agreeing to a course of action, continuing with the hearing and only then alleging a breach of natural justice when the decision is adverse. Fifth, the Commissioner submits that the FTT’s approach was not contrary to either the letter or the spirit of the Tribunals, Courts and Enforcement Act (TCEA) 2007. Finally, the Commissioner argues that Mr Shipton should have obtained a transcript of the FTT hearing to demonstrate how it was that he said he was under-informed as to the consequences of the proposed course of action.