Case No. UKUT-00233-(IAC)

62. Rule 34(2) requires the Tribunal to have regard to the views of the parties before deciding to make any decision without a hearing. We consider that where parties consent to a no-hearing determination, that will ordinarily provide strong support for the conclusion that the decision to proceed without a hearing was lawful. Although the rule 34 decision is for the Tribunal not for the parties, the parties to an error of law appeal will usually be well-placed to assess whether and if so, why a determination without a hearing would or might be unfair. Each party will know the nature of its own case; each party will be able to assess from its own perspective the relative advantages and disadvantages of a no-hearing determination. In the circumstances of the appeals which have resulted in the applications that we are now considering we have in mind both that the possibility of no-hearing determinations arose only in the respect of the error of law appeal (and would not apply to any subsequent redetermination of the appeal, whether retained by the Upper Tribunal or remitted to the First-tier Tribunal), and also that as of March 2020 parties to any error of law appeal faced, in consequence of the pandemic, a choice between an earlier no-hearing determination of that appeal, or a later, delayed hearing (either remote or in person). Either of these considerations might have been significant to the parties when deciding whether to consent to a no-hearing determination of the error of law appeal. Each reflects a different aspect of the rule 2(1) overriding objective, for example that cases should be dealt with proportionately and that so far as possible delay should be avoided. Either can provide an explanation of why consent was given. We draw attention to these matters only for the purpose of explaining that the fact that a party might consent to a no-hearing determination would not, of itself, be out of the ordinary. 63. The applicants submitted that for the purpose of deciding whether a procedural irregularity has occurred, little or no weight should be attached to a party’s consent to a no-hearing determination because of the context provided by the Guidance Note. The submission was that no genuine consent could be given when the Guidance Note so clearly pointed in favour of no-hearing determinations. We do not agree with this submission. All applicants before us were legally represented at the relevant time. Those legal representatives must have realised (or if they did not, they ought to have realised) that the directions issued by the Tribunal genuinely sought their views and the views of their clients on whether there should be a no-hearing determination. 64. Another scenario to consider is that in which a party did not take the opportunity to make representations provided by paragraph 3 of the Directions. Paragraph 3 permitted each party to make submissions on the provisional rule 34 decision but did not require “a nil return”. Therefore, all other matters being equal, it would be open to the Tribunal when taking the rule 34 decision to assume that no response under paragraph 3 of the Directions was tacit consent to a no-hearing determination, the party concerned having considered the pros and cons of that course of action in the context of its own appeal. That inference would be particularly strong where the parties had filed submissions in response to paragraph 2 of the Directions on the merits of the error of law appeal. It is of course possible that there might be good reason why no submissions were filed in response to direction 3: for example, if the Directions had not been received. But absent such circumstances, we do not think it is consistent with rule 2(4) of the Upper Tribunal Rules (the parties’ duty to cooperate with the Tribunal and help the Tribunal to further the overriding objective) to assert that a failure to file submissions in response to direction 3 should be regarded as irrelevant. (8)