[2023] UKUT 170 (AAC)

The Appellant applied to the Upper Tribunal for permission to appeal, permission having been refused in the first instance by the FTT judge.

The Appellant’s application to the Upper Tribunal for permission to appeal itemised a total of 16 proposed grounds of appeal. These included the hopeless argument that the fact that the same FTT judge who had presided at the hearing had also ruled on the original application for permission to appeal constituted a breach of his human rights. The Appellant also made an unparticularised allegation that his human rights had been abused by the Council, whose officers he accused of perjury. The FTT’s findings of fact were also said to be perverse. I refused permission to appeal on 15 such grounds and certified all such 15 grounds as being totally without merit within the meaning of rule 22(4A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

I gave limited permission to appeal to the Upper Tribunal on one ground only. That ground of appeal was framed by the Appellant in the following terms:

The FTT judge and panel members involved in this case have not been asked for any further elucidation as to what took place on (or after) the final hearing on 17 August 2022. However, I take the FTT’s case management directions at face value. I therefore now proceed on the basis that Mr Palmer-Dunk was indeed “made privy to the recorded evidence”, as the FTT’s directions stated, and moreover that as a result he viewed that recorded CVP evidence, albeit not ‘in real time’.

Plainly if that were not the case, and Mr Palmer-Dunk had not viewed the recorded evidence at all but had still participated in the FTT’s deliberations, then the FTT would necessarily have erred in law.At the very least, such an irregular state of affairs would have amounted to a breach of natural justice and in particular the principle of audi alteram partem. It would also have been inconsistent with the terms of the judicial oath (or affirmation) to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will” – the “laws and usages of this realm” including such basic tenets as deciding cases on the evidence.

In this context more generally I drew the parties’ attention to the decision of the Court of Appeal in R (on the application of Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555; [2014] 1 WLR 86 and invited submissions on its relevance, if any, to the present circumstances. The general rule was expressed in these terms by Longmore LJ (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.”

The facts of R (on the application of Hill) were somewhat unusual (although perhaps not as unusual as the present appeal). The case concerned a disciplinary hearing before an internal professional regulatory panel that was hearing charges against an accountant, Mr Hill. The panel comprised two accountants and a third independent member. The hearing lasted several days. One of the members was unavailable to sit past 5 pm on one of the days, and with the parties’ agreement the hearing continued until 6.30 pm that day in his absence, with the full panel reconvening on the next occasion. In the High Court, Lang J ruled that there had been a breach of the rules of natural justice but that the breach had been waived by Mr Hill’s solicitor. The Court of Appeal, however, held that there had been no breach of the rules of natural justice by virtue of the parties’ agreement to the procedural adjustment, a consent which had been “voluntary, informed and unequivocal”.