Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 398 (AAC)

Fecha: 10-Oct-2024

Our analysis of the procedural unfairness argument

Our analysis of the procedural unfairness argument

20.

In our view, the procedural unfairness argument in this appeal, most worthy of consideration, is the argument that, because Miss Kufandirori was not informed of the content of Mr Saleh’s two letters to the OTC prior to the public inquiry, either by being sent a copy of them in advance, or by having their substance be summarised as part of the issues presented in the call-up letter sent to Excell Logistics Ltd, Miss Kufandirori was not given a fair opportunity to gather and adduce evidence that might counter what Mr Saleh said in those letters, or to cross-examine Mr Saleh at the public inquiry on things said in those letters. To the extent that Mr Saleh, at the public inquiry, gave evidence matching what he said in those letters, the argument is that Miss Kufandirori was “ambushed” by such evidence. To the extent the content of Mr Saleh’s letters was not repeated at the public inquiry, but was relied on in the TC’s decision, that was unfair to the appellants.

21.

If authority were needed for the fairness principles underlying the argument as just set out, there are a number of cases set out in the Traffic Digest under Rules of Natural Justice; it may be worth quoting one of the more recent, and principles-based, articulations cited there - [2014] UKUT 0346 (AAC) OC International Transport Ltd v Dept of Environment Northern Ireland, at [9]:

This tribunal is moving away from long recitations of previous case law in favour of clear statements of the applicable principle. In this case, the principle is that so far as is reasonably possible, an operator called up to a public inquiry should be told about all the material evidence that the decision-maker may reasonably consider to be relevant, and should be given an appropriate opportunity to consider, prepare and present a response to it - at a hearing, should they wish. If information that has a reasonable prospect of becoming relevant to the outcome becomes available at the last minute, it should be disclosed at the earliest opportunity, and time to consider it, or an adjournment, should be offered. This rule applies even if, in the event, the information does not attract adverse weight. If an operator has been put on the back foot by the surprise production of new evidence part way through the hearing, an unfortunate sense of unfairness and injustice may arise – even if the information happens to be available, somewhere on the internet.

22.

In regard to assessing the procedural unfairness argument as just summarised, the key questions in our view are:

(a)

Was Miss Kufandirori fairly made aware of the contents of Mr Saleh’s letters to OTC, prior to the public inquiry?

(b)

Did Mr Saleh’s letters to OTC contain things (assertions, contentions, and the like) which Miss Kufandirori could not, fairly and reasonably, have been expected to be prepared (without sight of the letters) to deal with at the public inquiry, via cross examination of Mr Saleh, her own evidence and submissions on her behalf? In other words, was the public inquiry “fair”, despite Miss Kufandirori not having been made aware of the contents of Mr Saleh’s letters to OTC in advance?

(c)

Did the contents of Mr Saleh’s letters to OTC make a difference to the outcome of the public inquiry? In other words, was the unfairness (if any) at the public inquiry material to the TC’s decision?