Case No. UKUT-00233-(IAC)

65. Two submissions were made in this regard. The first concerned whether an appearance of bias would arise if the same Tribunal judge took both the provisional view on the application of rule 34 (and issued directions as set out above), and the final view that there should be a no-hearing determination. This was what happened in one of the cases before us as a rule 43 application. We do not consider this scenario to be problematic. Two linked questions are relevant: are there any matters which could be identified giving rise to an appearance of bias; if there are such matters, would they, considered alone or together, cause a fair-minded and informed observer to conclude there was a real possibility or danger of bias? The scenario in which the same Tribunal judge both forms the provisional view on the application of rule 34 and then takes the final decision on the application of that rule does not give rise to any appearance of bias. The expression of a provisional view and then a final view on the application of rule 34 is part of regular case management. It is neither unusual for one judge to have responsibility for successive case management decisions, nor is it unusual in the course of case management for a judge to propose steps of her own motion and then, in light of representations made by the parties, decide whether those steps should be taken. In the premises, any fair-minded and informed observer would recognise this scenario as an ordinary part of judicial case management. 66. The other scenario arises in the case of Annes (HU/11949/2019). One of us (Judge Blundell), took the rule 34 decision and the decision on the error of law appeal. Is it objectionable that Judge Blundell is one of the judges now hearing the rule 43 application in that appeal? By reference to the standard of the fair-minded and informed observer we do not consider it is. Various provisions in Part 7 of the Upper Tribunal Rules (the part that includes rule 43) provide for the Upper Tribunal to revisit its own decisions. The Rules do not specify whether any such exercise (whether it be review under rule 45, an application to set aside pursuant to rule 43, or otherwise) be taken by the same Upper Tribunal judge or a different judge. We suspect that practice will vary in this regard and will take account of judicial deployment. In many situations the judge who has heard the error or law appeal will be well-placed to determine any post-hearing application. For example, this will be so in the case of many rule 43 applications where the application arises out of some issue of fact going to the conduct of the proceedings. The present situation is a little different in that the submission is that it is the judge’s rule 34 decision that is the procedural irregularity giving rise to the rule 43 application, and that application requires the judge to revisit his own decision. Whether or not this is significant in terms of giving rise to a real possibility of danger or bias will depend on context. At the level of principle, we do not consider there is a problem; it is not uncommon for judges to have to revisit their decisions for one or other purpose (the most common example being when considering applications for permission to appeal). Undertaking such exercises objectively and candidly is part and parcel of the judicial function. This would be recognised by any fair-minded and informed observer. We accept, however, that matters arising from a particular context may suggest a different conclusion in a particular case. To this extent, each such situation must be considered on its own terms. (9)