[2023] UKUT 247 (LC)

I found it difficult to follow the respondents’ submission that the FTT had dealt with the application of 9 September when it made its decision to debar the appellant from participation in the hearing. It had certainly not dealt with the application in the four months before the hearing and from the way in which the application is referred to in paragraph 6 of the decision the panel appear not to have had it in front of them at that time. There is certainly nothing in the decision which refers to the explanation given by Mr Patel for the fact that the directions had not been complied with.

Consideration of the FTT’s decision to debar the appellant from participating in the proceedings must, it seems to me, begin with its treatment of the application of 9 September and the explanation Mr Patel provided for the late compliance with the FTT’s directions. Had the application been considered, and had it been successful, the whole proceedings are likely to have taken a different course. A different timetable would have been fixed and notified to the appellant in time for it to be complied with. Thereafter, if the appellant had complied, it would not have been debarred from defending the application.

If the FTT had considered the application of 9 September in good time it would first have had to decide whether it accepted Mr Patel’s account of the diversion of the FTT’s directions of 20 June into a spam e-mail folder. The explanation was not so unlikely that it could be dismissed out of hand, and Mr Patel had acted very promptly when he said he first became aware that directions had been given. If the FTT had asked itself the sequence of questions in Denton, it might or might not have decided that the delay of two weeks was serious, but unless it disbelieved Mr Patel, it would have been bound to conclude that the appellant had a good reason for not serving its statement of case in time (a party cannot be criticised for failing to comply with directions it is not aware of). The proceedings were not so advanced by that stage and the interests of justice would have pointed firmly in favour of a new timetable and allowing the appellant to submit its case and evidence. Indeed, it is difficult to see how any tribunal which took Mr Patel’s explanation at face value could have reached a different decision if it had been considering the application in September.

If the FTT was not prepared to accept Mr Patel’s explanation without further investigation it would have been necessary for it to assess his credibility. It is difficult to see how that could be done without an oral hearing at which he had the opportunity to give his account in person and the FTT could decide whether it believed him. That would be an unwieldy sledgehammer to crack a very small procedural nut.

But the FTT did not deal with the application for additional time in September, not had it been dealt with by the time a date was fixed for the final hearing. Should Mr Patel or someone else at the appellant have chased the FTT for a response to the application at an earlier date, as the FTT implied? Perhaps. But it had taken three weeks for receipt of the application to be confirmed by the FTT’s administrative staff who had said that it would be referred to a judge, but not how long that would take. A reasonable person without much experience of legal proceedings might well have assumed the application was waiting its turn to be attended to ten weeks later and that the proper course was to wait for a new date to be set, rather than to file material after the date originally permitted. Even if some criticism might attach to the appellant, if the FTT had considered the application of 9 September at the hearing it would surely have had to acknowledge that an administrative slip in its own office might have been an important part of the context in which the appellant’s evidence was filed so long after the time originally allowed for it.

The FTT appears not to have taken Mr Patel’s explanation of the delay into account at all. On the contrary, it asserted in its decision that “no plausible reason” for the appellant’s tardiness had been mooted and appeared to place special weight on matters over which the appellant had had no control assuming Mr Patel was telling the truth that it had not been aware of the directions until after the time for compliance had expired.

If the FTT had considered the application of 9 September, and Mr Patel’s explanation, as part of the exercise of deciding how it should respond to the late provision of evidence it might have concluded that the delay was very serious indeed, and that even if there was a credible explanation for delay until September, no sufficient justification had been given for the failure to file evidence until as late as 23 December while waiting for the FTT to decide the application for an extension of time. On that basis it could have decided to exclude Mr Patel’s evidence. But it is far from obvious that that would inevitably have been its decision. A properly directed panel would have taken into account that the allegation faced by the appellant was that it was guilty of criminal conduct. It would also have had regard to the fact that the most important part of Mr Patel’s evidence concerned his own dealings with Haringey, that those dealings were recorded in writing in email exchanges which largely spoke for themselves, that the respondents were professionally represented, and that their solicitor had had ten days to consider the content of Mr Patel’s witness statement. A panel which had reminded itself that the overriding objective of dealing with cases fairly and justly, including by ensuring, so far as practicable, that the parties were able to participate fully in the proceedings, might very well have concluded that Mr Patel’s evidence, or perhaps that part of it which was corroborated by the correspondence with Haringey, ought to be admitted.

Even if a properly directed panel could have decided to exclude Mr Patel’s evidence entirely, as it might have done, it would still have had to consider whether some lesser sanction short of barring the appellant from all participation in the proceedings was available. Rules 3(2)(c) and (3) place a responsibility on the FTT to ensure both parties’ full participation in the proceedings “so far as practicable”. Even if it was not prepared to allow Mr Patel to give evidence, what reason was there for barring the appellant’s solicitor, Mr Young, from cross-examining the respondents on their own evidence and making submissions on the appellant’s behalf?

But in this case the FTT did not direct itself properly. It was either unaware of the contents of the application of 9 September, or it chose to ignore them and gave no indication that they had been taken into account in reaching the discretionary decision to bar the appellant from participation. The application was relevant to the assessment of the appellant’s culpability for the initial delay. The fact that the appellant was waiting for the application to be determined by the FTT provided an explanation why the delay had not been rectified sooner. It was necessary that these matters be taken into account and the FTT’s omission to do so means that its decision to bar the appellant from participation cannot stand.