Case No. UKUT-00233-(IAC)

4. If this Tribunal decides to set aside the decision of the First-tier Tribunal for error of law, further directions will accompany the notice of that decision …” 56. One overarching submission made to us was that the existence in all cases of directions to this effect, following the course plotted at paragraphs 11 – 13 of the Guidance Note, was proof that the relevant judge had applied the Guidance Note including the part of it described by Fordham J as the “overall paper norm” and thereby erred in law when applying rule 34. 57. We do not accept this submission. As we have already noted, this was not a submission that found favour with Fordham J: see his judgment in JCWI at paragraph 4.17. No decision to apply rule 34 could be taken without some form of direction to explain what would happen in the event of a no-hearing determination. We can see no problem arising from the practice of making and communicating the provisional view on the application of rule 34. Any consideration of whether to proceed under that rule must start somewhere. A Tribunal does not need to wait until one or the other of the parties suggests the course of action; it can initiate the process itself. From these premises, there is nothing in the directions that requires the conclusion that the subsequent decision in favour of no-hearing determination was unlawful. The request for the parties’ views (paragraph 3) stems from the requirement at rule 34(2). The direction for written submissions on the error of law appeal is necessary so that the parties can comment on the suggestion that the appeal should be determined without a hearing: that response needed to be informed by the arrangements that the Tribunal purposed to adopt in place of a hearing. 58. Nor do we think any significance attaches to the fact that the directions provided that the submissions on the error of law appeal should be filed at the same time as any submission in response to the provisional decision on the use of rule 34. The applicants submit that the fact that the directions at paragraphs 2 and 3 operated in parallel rather than sequentially showed that the provisional rule 34 decision was not provisional at all but was final. We disagree. Rather, the directions assume that before taking the final rule 34 decision the Tribunal judge should have the benefit of considering the submissions on the error of law appeal together with representations on the provisional rule 34 decision and in that way will be better-placed to decide whether a no-hearing determination of the error of law appeal would be fair. This assumption is reflected in each of the decisions before us that is the subject of a rule 43 application. In each the reasons for the rule 34 decision and for the determination of the error of law appeal are part of a single determination. 59. Overall, therefore we do not accept the overarching submission that the directions demonstrate that the Tribunal either reached an unlawful rule 34 decision or proposed to reach a rule 34 decision that would be unlawful. 60. In addition, further submissions were advanced. One was to the effect that these directions were inconsistent with the requirement at rule 34(2) to have regard to the views expressed by the parties before any decision to go ahead with a no-hearing determination. This submission rested on two matters. First , the way in which paragraph 3 of the directions was formulated; it was contended this gave the impression of pre-judgment or at the least that there was a presumption in favour of a no-hearing determination and a requirement to rebut it. The second concerned the direction at paragraph 2 to file submissions on the error of law appeal. It was submitted that the timing of these directions (working in parallel with the direction seeking the parties’ views on a no-hearing determination) showed that so far as concerned the rule 34 decision, the die had been cast. This submission is a variation on the overarching submission we have just considered. The reasons we have given on that submission apply here too. In addition, it is important to consider the effect of the directions, objectively. They state that the Tribunal judge has formed “a provisional view”. There is no reason not to take those words at face value; any suspicion that the provisional view was in fact the final decision would be entirely without foundation. 61. The other submission was directed to the timetable at paragraph 2 of the directions and was to the effect that this was too compressed and put an unreasonable burden on the parties. We do not regard this as a point of any substance. The timetable is not unreasonable of itself; the time given for each step reflects an approach commonly adopted. If that timetable was not achievable in a particular case, for whatever reason, it was open to any party to apply to vary the directions and explain the reasons why variation was necessary. It is certainly not unreasonable to expect litigants (in particular, legally represented litigants like all the applicants before us) to participate in this sort of case management process: this is no less than is expected and required by rule 2(4) of the Upper Tribunal Rules. (7)