[2025] UKUT 74 (AAC)

I can also take this ground very shortly. The appellant contends that the First-tier Tribunal failed to uphold the overriding objective in three respects:

The difficulty for the appellant with this ground of challenge is that a failure to comply with the overriding objective of the sort of which he complains can only amount to a material error of law on appeal if it results in material unfairness: see R (Iran), ibid, at [9]-[10]. An error of this sort will not be material unless it could have affected the outcome of the appeal.

As is apparent from what I have said above in relation to Ground 3, it made no difference in this case whether the duty of candour formally applied or not. I doubt that what Judge Neville said at the case management stage about the duty of candour did constitute a binding determination of that point because the res judicata principle only applies to matters that are necessary to a decision. However, as a matter of judicial comity, the Tribunal at the final hearing ought to have respected Judge Neville’s view and not departed from it without giving reasons. There is no material error of law here, though, becase even if the res judicata principle did apply so that the Tribunal at the final hearing should have agreed with Judge Neville that the duty of candour applied, it made no difference to the outcome in the appellant’s case for the reasons explained above in Ground 3.

As to the First-tier Tribunal’s handling of the appellant’s third ground of appeal, the heart of the appellant’s complaint is that the First-tier Tribunal did not give him an opportunity to comment on its interpretation of the email of the 7 February 2023 at the hearing and that it decided this ground as preliminary issue at the hearing, albeit without giving reasons orally. It is sometimes the case that material unfairness will arise as a result of a Tribunal failing to give a party an opportunity to comment on its thinking, but in my judgment this is not one of those cases. The appellant had an opportunity to make submissions to the Tribunal about his interpretation of the email. Having considered those submissions, the Tribunal was entitled to reach its own view without specifically putting to him what it was thinking. This was just an issue in the appeal where, like most issues, the Tribunal was entitled to reach a judgment after hearing submissions without having to issue a ’provisional decision’ for further comment by the parties. Moreover, what the appellant says he would have said if given the opportunity was what he has now advanced as his ground 4 on this appeal. I have dismissed that ground and I cannot see how what he says there would have made any difference to the Tribunal’s view of the email.

As to the appellant’s complaints that the Commissioner was not adhering to the overriding objective, there is nothing in those complaints that materially affected the fairness of the hearing or the issues that the Tribunal had to decide. The appellant is just advancing a catalogue of complaints about process and procedure, but none of these matters in the end prevented him from presenting his case to the First-tier Tribunal. The only aspect that was capable of materially affecting the hearing was the Commissioner’s possible failure to disclose all the documents the appellant wanted and/or the First-tier Tribunal’s refusal to order that, but, as already noted when dealing with Ground 3. that decision was actually taken by Judge Neville in a prior case management order that the appellant did not appeal and there was no error of law in the Tribunal not re-visiting that at the final hearing.

The appellant also complains under this ground about the Tribunal’s decision to consider again a point that Judge Buckley addressed when considering the Commissioner’s strike-out application as to whether the appellant’s application was in substance a complaint about the merits of the Commissioner’s decision that should have been brought by way of judicial review rather than a section 166 application. However, there is no material error in relation to that either: (a) Judge Buckley was merely considering whether the appellant’s application should be struck out as standing no reasonable prospects of success; that did not mean the argument was fully determined – it was open to the First-tier Tribunal at the final hearing to consider the argument afresh applying the balance of probabilities standard that applies at final hearing stage; and (b) the appellant ‘won’ on this point so he cannot appeal it. There has, though, been argument on this issue before me because the Commissioner raised it as an additional ground for upholding the appeal. I deal with the arguments in this respect below in the section dealing with the Commissioner’s now admitted error in handling the appellant’s complaint.

Ground 5 is therefore dismissed.