Case No. UKUT-00233-(IAC)

39. The Secretary of State’s submission as to when the Tribunal should exercise its power to set aside substantive decisions reached following a rule 34 no-hearing determination was set out at paragraphs 5 to 6 of her Skeleton Argument (emphasis in the original): “5. The Secretary of State considers that the Tribunal would only not exercise that power [to set the decision aside] if the parties are wholly content with the outcome of the rule 34 decision or, exceptionally, if it is clear that a different decision would not have been reached if there had there been an oral hearing. The Secretary of State considers that the latter would be highly unusual given that it would lead to satellite litigation and would be contrary to finality of litigation and the overriding objective. 6. The Secretary of State raises no point about acquiescence by the lack of objection, either explicit or by silence, as the terms of the Administrative Court’s decision make it clear that facing an appellant with the presumption that there not be an oral hearing was an unlawful and unnecessary step contrary to the rule of common law fairness and to the overriding objective”. 40. At the outset of the hearing, we informed the parties that the legal basis for this submission was not clear to us. We invited any party wishing to support these submissions to make further submissions accordingly. 41. Ms Kilroy objected to that course. She submitted that the Secretary of State had effectively conceded that each of the decisions should be set aside. However, there was no such acceptance on the part of the Secretary of State; there was no consent order under rule 39 of the Upper Tribunal Rules. Ms Kilroy also submitted that these were adversarial proceedings and that it was not for the Upper Tribunal to disagree with the stance adopted in the Secretary of State’s skeleton argument. We cannot accept that submission either. Proceedings before UTIAC are adversarial but it must be for the Tribunal to decide for itself whether or not to set aside a decision already made by it in an appeal. 42. Having now considered the matter more fully our view remains that the submission at paragraph 5 of the Secretary of State’s skeleton argument is wrong. The premise of the submission is that the Tribunal must, in exercise of its rule 43 power set aside any rule 34 decision to determine an appeal without a hearing unless both: (a) at the time the rule 34 decision was made; and (b) after the event (i.e., in light of the decision on the error of law appeal), both parties agree that the rule 34 decision was correct. This premise does not fit with rule 34, as made. The rule requires the Tribunal to have regard to (and by inference to seek out) the views of the parties. But the rule does not give the parties a veto either at the time the rule 34 power is exercised or later when the Tribunal’s substantive decision on the error of law appeal is known. 43. Even though paragraph 6 of the Secretary of State’s written submission claims to be based on conclusions reached by Fordham J in his judgment in the JCWI case, we are unable to find any part of that judgment that corresponds to this proposition. In our view the submission confuses two distinct matters. Although Fordham J concluded that the Guidance Note was unlawful because it established an “overall paper norm” , that conclusion says nothing necessarily determinative of whether a party may consent to a no-hearing determination, or whether if a party either consented or did not object to the Tribunal’s proposal that an error of law appeal be determined without a hearing, that consent or lack of objection is relevant to a rule 43 application to set aside the error of law decision. In this regard we note that Fordham J went out of his way to emphasise that the directions given by Tribunals seeking representations from the parties for the purposes of deciding whether to apply rule 34 were not themselves objectionable: see per Fordham J at paragraph 4.17. 44. All this being so, we do not accept the Secretary of State’s submission provides a proper basis on which the rule 43 applications before us can be decided. (4)