[2024] UKUT 398 (AAC)

On this question, it seems to us that Mr Saleh’s detailed challenge to Miss Kufandirori’s overall competence, and to her honesty on one or two key matters, in his letters to OTC, were not something Miss Kufandirori, fairly and reasonably, could have been expected (without sight of the letters) to deal with at the public inquiry. The contents of those letters painted a picture of, on the one hand, Mr Saleh’s competence and whole-hearted attempts to bring Miss Kufandirori to compliance, and, on the other, Miss Kufandirori’s lack of competence, persistent resistance to Mr Saleh’s sound advice, and, on one or two matters, outright dishonesty. In our view, in the circumstances, Miss Kufandirori could not reasonably, and fairly, have been expected to be prepared, with no notice, to deal with these assertions, which would have involved gathering her thoughts, and memories, as to the episodes to which Mr Saleh referred, assembling any contemporaneous documentary evidence she held in respect of them, and, with these “counter” materials, assisting her solicitor to prepare to cross examine Mr Saleh on his evidence. We do not accept that, just because Miss Kufandirori knew that the public inquiry related to “good repute”, it was unnecessary for Miss Kufandirori to be given notice of the detailed evidence provided by another person as to her lack of competence and, in one or two important matters, dishonesty.

Related to this, we are also persuaded that, had she known the contents of Mr Saleh’s letters, Miss Kufandirori would have gathered evidence in an attempt to counter significant aspects of what he asserted. We say this largely on the basis of over 100 pages of contemporaneous evidence of communications between Mr Saleh and Miss Kufandirori (prior to the public inquiry) produced by the appellants to the Upper Tribunal (pages 602 to 731 of our bundle): these are extensive and detailed and, without prejudging the issues, seem to us to offer reasonable scope for a portrayal of the facts that was, at a minimum, not as clear-cut or “black and white” as was portrayed in Mr Saleh’s letters to OTC.

We therefore answer the second question, as we have posed it above, thus: it was unfair for the content of Mr Saleh’s two letters to OTC not to have been disclosed to Miss Kufandirori in advance of the public inquiry, to allow her a fair opportunity to prepare her case.