[2024] UKUT 240 (AAC)

We find that the general position for any user who had agreed to accept electronic notification, was that it would take place through the VOL system (indeed that has become mandatory since 2023). Notwithstanding that, the OTC would additionally send some letters by post – by recorded delivery – and some might additionally be sent to personal email addresses, as happened in this case.

We note that Ms Wadsworth’s letter of 31 March, sent relatively soon after the operator had informed the OTC of the claimed hacking, was not sent by VOL, but was sent to a personal email address and by post. That might be consistent with there having been an agreement that the normal method (VOL) would not be used. However, the same correspondent, Ms Wadsworth, only 3 weeks later, issued her letter of 20 April by VOL alone. There is no indication that when the operator eventually received the paper copy of that letter generated by the VOL system some days later, the operator took any steps to query why it had not been emailed or to remind Ms Wadsworth of any understanding that might have been reached.

On balance, we are not satisfied that the operator revoked their agreement to electronic notification. Save for that considered in the previous paragraph, there is no evidence capable of corroborating a revocation, either in the form of the OTC’s records nor in the form of any correspondence from the operator. Contrary to the operator’s case, the evidence does not suggest that Mr Blaza accepted that that had been done – his note merely records that Mr Stafford had told him that that had occurred.

We are not satisfied as to the impact of whatever it was that happened to Mr Stafford’s data in early 2023. We are no IT experts but find it hard to see how data being stolen from Twitter (as alleged) could impact upon Mr Stafford’s email address or indeed be likely to have prevented logging onto the VOL as claimed. In any case, Mr Stafford continued to use the same email address as before, as did Mr Bowers when emailing him. He made no attempt to change his login details for the VOL. We do not accept that anyone other than Mr Stafford removed Mr Noon and subsequently applied to reinstate him. Notwithstanding the claimed difficulties, Mr Stafford was in fact able to access the VOL system in March and again in May 2023.

We find that emails were correctly sent by the VOL system advising Mr Stafford of letters set on 2 March, 20 April, 7 June and 3 July and further emails 3 days later when the first ones had not been opened. None were opened.

We accept that some items of correspondence were additionally issued by the OTC by recorded delivery post and others to the personal email addresses of Mr Bowers or Mr Stafford. In some other cases, the VOL system eventually generated a letter by second class post some days later.