[2023] UKUT 170 (AAC)

It will be recalled that the general rule was expressed by Longmore LJ in R (on the application of Hill) as follows (at [22]):

“If there is a hearing with live witnesses giving their evidence orally, it will normally be a breach of rules of natural justice for a member of the tribunal (in the absence of agreement) to absent himself while a witness is giving evidence and later return to participate in the decision.”

Furthermore, and as already noted above, such agreement must be “voluntary, informed and unequivocal” (at [31]) if it is to prevent what would otherwise be a breach of the rules of natural justice.

There are undoubtedly several significant differences on the facts between those in R (on the application of Hill) and the circumstances of the present case. It will be sufficient to note just three. First, here we are dealing with a statutory tribunal and not an internal disciplinary tribunal. Second, R (on the application of Hill) was concerned with a relatively short-term absence in a six day hearing, whereas here the absence was for the whole effective hearing day (at least in real time). Third, the accountant was legally represented while Mr Shipton was a litigant in person. However, none of these factors undermines the basic principles set out by the Court of Appeal. At most they might point to a different conclusion on the facts.

There is no dispute but that Mr Shipton gave his consent to the unusual procedure adopted by the FTT. The issue, therefore, is whether that agreement was “voluntary, informed and unequivocal”.

Was it voluntary? Mr Shipton contends that his agreement was not voluntary because he was in effect put under undue pressure to consent by the need to avoid delay and by the FTT’s reference in its directions to the requirement that the parties co-operate with the tribunal. This argument is wholly unpersuasive. Throughout these proceedings Mr Shipton has shown himself able and willing to pursue his submissions with determination and vigour. The suggestion that his will was overborne is frankly risible. I am satisfied Mr Shipton’s consent was voluntary.

Was Mr Shipton’s consent informed? Mr White and Mr Fitzsimons argue that Mr Shipton had failed to explain in his notice of appeal how it is said that his consent was not informed. In my view that criticism may not be entirely fair, not least as the terms of the decision in R (on the application of Hill) had not been drawn to his attention at that stage. In his reply, Mr Shipton argues (see paragraph 25 above) that during the hearings he had felt that the FTT judge “unduly favoured” the Council but it was not until he received the final decision “that this became fully evident”. As such, he contends that “the absence of Mr Palmer-Dunk did have the effect of ‘Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings’, as he should of [sic] brought some equality to the proceedings.” There are at least two reasons why this submission is misconceived.

The first is that Mr Shipton, like the Council, was perfectly well informed as to the course of action that was proposed. Mr Palmer-Dunk was unable to attend on 17 August to hear the evidence in real time. However, Mr Palmer-Dunk would be made privy to the recorded evidence and continue to deliberate on the appeal. Mr Shipton was as informed as the Council as to how the procedure would work going forward.

The second is that there is in any event simply no evidence that the FTT judge or the FTT panel as a whole “unduly favoured” the Council. As Mr Justice Rimer once said, this type of argument is in essence “no more than the deployment of the fallacious proposition that (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased” (see London Borough of Hackney v Sagnia [UKEAT0600/03, 0135/04, 6 October 2005] at paragraph 63). The FTT approached the appeal in an even-handed manner and indeed did not draw back from making some serious criticisms of the Council. At paragraph [77] of its decision, the FTT recorded its concerns as follows:

It follows that Mr Shipton suffered no prejudice and his consent was informed.

Was Mr Shipton’s consent unequivocal? There is nothing to suggest Mr Shipton’s agreement was other than unequivocal. In R (on the application of Hill) the accountant’s solicitor at the hearing had requested an assurance that the missing member would have access to a transcript of the session for which he was absent. We do not have a record of the full exchange that took place at the FTT, but Mr Shipton received an assurance in writing that Mr Palmer-Dunk would be privy to the CVP evidence of the hearing. I am satisfied Mr Shipton’s consent was unequivocal.

As to the natural justice argument more generally, Mr White submits in the Commissioner’s response that the Appellant’s “late reliance on this point appears to be cynical and opportunistic – in short, an unfair attempt on his part to get a second bite of the cherry by resiling from a (fairly) agreed position”. Mr Fitzsimons, for the Council, essentially makes the same point, arguing that the appeal is in reality a challenge to the merits of the FTT’s decision “dressed in the cloak of a complaint about an alleged procedural irregularity that was not a concern of the Appellant during the appeal process or indeed at the time the Decision was made”.

For the reasons above, I am bound to agree. Mr Shipton’s consent to the procedural modification was voluntary, informed and unequivocal. As such, and applying the principles set out in R (on the application of Hill), I conclude there was no breach of natural justice.

Finally, I turn to how to dispose of the appeal given the findings above.