Case No. UKUT-243-(LC)-UTLC-Case-Number:-LC-2022-147

33.The first ground of appeal is a challenge to a case management decision which lay within the judge’s discretion and the Tribunal will interfere only rarely with such a decision and only when it can be shown to have been irrational or made in error of law. The Tribunal will be particularly reluctant to interfere where a party has been represented and his or her representative did not argue against the decision at the time. Mr Connolly drew my attention to the observations of Lloyd LJ at paragraph 17 of Allen v Bloomsbury Publishing Plc [2011] EWCA Civ 943:“… the judge's order was undoubtedly made in the exercise of his discretion and, as a matter of principle, an appellate court will not interfere in such a case unless it is clear that the judge has misdirected himself either because it is clear from the judgment that he has made an error of law — including taking irrelevant matters into account or leaving relevant matters out of account — or because his order is plainly wrong so that it must be the result of a misdirection. In our adversarial system of litigation, in a case where each party was professionally represented with plenty of opportunity to formulate and put to the court all points considered to be relevant on a particular point, it seems to me questionable for a judge to be criticised for having failed to take into account a factor which, if relevant, was known or available to all parties and which no party invited him to consider as part of the process of exercising his discretion.”34.Having heard the parties’ arguments and, importantly, looked at the transcript of the hearing before the FTT I am satisfied that there is no reason to interfere with this discretionary decision.35.I observe that this is not an appeal from the original decision to require Ms Mitchell to attend in person. That decision, made at a case management hearing on 7 July 2021 two weeks before the trial commenced on 21 July, was made following an application for permission for Ms Mitchell to give evidence by video, based on Mehmet’s solicitor’s understanding of Ms Mitchell’s position which was that she was unwilling to attend because of Covid levels in London in light of her age and health. The application was refused; it is not clear why the judge felt that Ms Mitchell’s evidence would be “too difficult to manage” if she did not give it in person, since the courts and tribunals are now experienced and confident in hearing video evidence and it is difficult to see what the problem was in this case. But the reasons given for Ms Mitchell’s absence were hearsay and there was nothing direct from the witness herself to say that she was willing to give evidence but not in person. The decision made at the case management hearing was not appealed at the time and is not appealed now.36.There was a further case management hearing on 12 July 2022; the judge refused Mehmet’s application for an adjournment but gave permission for a witness summons to be served on Ms Mitchell to ensure her attendance on the morning of 21 July. When she did not attend, permission was given for her to be re-served (nothing was said about how she had been served the first time), and for her to attend on 28 July 2021 which was to be the fifth day of the hearing. There was some discussion as to whether day 5 day of the hearing would be conducted remotely; counsel for Muazzez again objected to Ms Mitchell giving evidence remotely and Mr Peters did not challenge that objection. The case proceeded on the basis that Ms Mitchell would attend. 37.Day 5 of the hearing came and she did not. Nothing was said about service. The judge said to Mr Peters that he needed to know what he proposed to do about Ms Mitchell’s non-attendance before he closed his case. Mr Peters said he would take instructions and address that on the following day. Day 6 of the hearing was 2 August 2021; Mr Peters said that he did not ask for an adjournment to allow Ms Mitchell to be brought to court and would rely on her written statements. Later in the day during Mr Peters’ closing submissions the judge asked about service and was told by Mr Peters that the summonses had been served by delivery to her property but that Ms Mitchell did not answer the door.38.The question in the appeal is whether the judge was right on Day 5 of the trial to proceed in the absence of this important witness once he knew that the witness still would not attend. Should he instead have re-visited his decision to require her to attend in person and instead permitted her to give evidence remotely?39.Having considered the transcript of the hearing it is clear to me that the judge’s decision to go ahead was within the bounds of discretion. The judge was told nothing about service before Mr Peters closed his case. There was no suggestion that Mehmet or his representatives had been in contact with Ms Mitchell, either before the case management hearing on 12 July 2021 or between that date and the date of the hearing. There was, as the judge said, no direct evidence of the reasons why she was unwilling to attend. There was no suggestion that she was actually willing to give evidence remotely. No arrangements had been made by Mehmet’s representatives for her to do so. It is very surprising that those instructing Ms Mitchell were not in contact with her between the case management hearing and the trial and the absence of any such contact meant that there was very little for the judge to work with. This was not a witness who was willing and able to give evidence but just not prepared to venture into London; it was a witness who was not in communication with the party calling her. She had gone to ground, albeit in her own home. 40.Moreover, Mehmet was represented by counsel who during the trial did not challenge Mr Connolly’s objection to Ms Mitchell giving evidence remotely. However, in the absence of contact with the witness and of any endeavours having been made to establish that she was actually willing to give evidence remotely, it may have been difficult to mount such a challenge.41.In the circumstances the judge’s decision on day 5 of the trial to proceed in Ms Mitchell’s absence, without re-visiting his decision to refuse the application for her to give evidence remotely, was not outside the range of discretionary decisions open to the judge. I might well have taken a different view if those representing Ms Mitchell had been in contact with her and had her set up ready to give evidence remotely, but no attempt was made to do so.42.Accordingly the first ground of appeal fails.43.Mehmet now complains that the judge drew an adverse inference against him from the absence of evidence of professional service of the witness summons, and concluded both that the solicitors had allowed Mehmet to serve the summons and that Mehmet did not want Ms Mitchell to attend the hearing. Mehmet drew my attention to copies of emails from a process server who he says served the summons and claimed that the circumstances of service were explained to the judge at the trial, but it is clear from the transcript that they were not. All that was said to the judge about service – and only during closing submissions – was that the witness summons had been served; nothing was said as to who had served it. Accordingly it is unsurprising that the judge drew that adverse inference. Mehmet’s solicitor could have prevented that by producing evidence of service at the trial, as one would have expected him to do. There is no appeal from that adverse inference, and the inference was not crucial to the judge’s decision. I mention it only to observe that Mehmet and those representing him were responsible for putting the judge in a position where that inference was an obvious one to make.