Case No. UKUT-27-(LC)-UTLC-Case-Numbers:-LC-2022-425

49.Ground 2 is aimed at paragraphs 74 and 75 of the FTT’s decision. It will be recalled that Mr Bates argued that failure to serve was deliberate. He pointed to the RTM company’s statement of case where its response to the challenge that the appellant had not been served was that there was no need for it to serve the appellant. In the absence of any evidence that failure was inadvertent that pleading reads like an explanation of the reason for failure to serve and, as the FTT said, is a compelling reason for finding that the failure was deliberate.50.Nevertheless the FTT found that the failure was inadvertent because, it said, otherwise the actual service on the appellant in three of the other claims must have been inadvertent. That does not follow. The fact that three RTM companies deliberately served the appellant does not tell us anything about why this RTM company and four others did not. All eight seem to have used the same agent, so perhaps the individual concerned forgot in some cases and not in others. Or perhaps the RTM companies took different decisions. I agree with Mr Bates that there was no evidential basis for the FTT’s finding that the failure to serve the appellant was inadvertent and it is an almost inescapable conclusion from the RTM company’s pleading that it was not.51.Mr Bates then says that it is unimaginable that Parliament could have intended that a deliberate failure to serve one of the persons listed in section 79(6) could be condoned and would not have intended that that should invalidate the claim.52.I fail to see that that is right, and indeed it feels like an illegitimate anthropomorphising of Parliament by attributing to it indignation at a deliberate default. The reason for failure to serve in Elim Court was irrelevant. It had to be irrelevant because the virtue or conscientiousness or explanatory skills of the person in default has no place in the factors identified by Lewison LJ in his paragraph 52; it makes no difference to the importance of the omitted action or information, nor to whether the requirement is stated in statute or in a statutory instrument, nor to whether the person in default is able immediately to try again. The reason for failure to serve therefore had no part in leading Lewison LJ to his conclusion at his paragraph 74.53.So while I agree with Mr Bates that the FTT’s finding that failure to serve was not justified by the evidence, that makes no difference to the overall outcome of the appeal.