[2024] UKUT 22 (AAC)

In the case of Murray because of the working procedures adopted by the respondent in that case, a practice had arisen whereby applications under rule 9(2) were routinely being made late. The Upper Tribunal was highly critical of that system and stated that it was imperative that it be changed and improved. Nevertheless, the Upper Tribunal exercised its discretion under rule 7(2)(a) and waived the requirement to comply with the time limit. In Brogan the pursuer’s solicitor was in ignorance of the special rule for the shortened period in which a summons in a personal injury action must be called. This was a circumstance the judge at first instance considered inexcusable. However, the motion that the court exercise its discretion under rule 2.1 was, in any event, incompetent because the summons had fallen and was no longer in existence. The comments quoted above are therefore obiter, but nonetheless relevant to efficient administration of justice.

We have had regard to the guidance referred to in the authorities cited to us. Unlike in Murray, in the present case, we were assured that there was a protocol in place to ensure timeous applications to be added as a respondent. It was unfortunate that, due to recent staff changes and resourcing problems, the. significance of this particular case was missed until late in the day. This resulted in a late application along with late submission of a skeleton argument.

The only prejudice cited by counsel for the first three appellants was the additional expense of the work required to consider the late application and skeleton argument.

We accepted the respondent’s submission that, potentially, more turned on the outcome of this appeal than its consequences for these appellants. We accepted that the decision on the appeal might have a wider impact on the future conduct of proceedings before TCs generally. Looking at the skeleton arguments and other material available, we considered it likely that the appeal proceedings would be concluded in the time already allocated.

In all the circumstances, we considered it fair and just to exercise our discretion under rule 7(2)(a) and to waive the time requirement in paragraph 6 of Schedule 1. Having done that, therefore, in terms of paragraph 7 we are obliged to add the Secretary of State for Transport as a respondent to this appeal.