[2023] UKUT 247 (LC)

For a court or tribunal to debar a party from participating in the final hearing of a claim brought against them is a draconian step. Sometimes where, by their conduct, a party has prevented the tribunal from determining the claim in a way which is fair to both sides and to others whose cases are waiting to be heard, it may be necessary to impose such an extreme sanction. But in general, and especially where the claim involves allegations of criminal conduct and may result in a substantial financial penalty, the interests of justice require that both parties be given a full opportunity to participate in the proceedings.

In this case the First-tier Tribunal, Property Chamber (the FTT) debarred the appellant, Jallay Enterprises Ltd, from participating in the hearing of an application for a rent repayment order under section 41 of the Housing and Planning Act 2016 made against it by the respondents, who were its tenants of a shared flat. The tenants argued that the flat was an HMO which was required to be licensed but was not, and that the appellant had been in control or management of the HMO contrary to section 72 (1) of the Housing Act 2004. After making the debarring order at the start of the hearing the FTT refused to permit a director of the respondent to give evidence in support of a defence of reasonable excuse and refused to permit its solicitor to make submissions on liability or on the amount of the award. It found that the elements of the offence were made out and ordered the appellant to repay rent and tribunal fees totalling £16,866 to the respondents.

The appellant was granted permission to appeal by this Tribunal. Its single ground of appeal is that the appellant was denied a fair hearing by a serious procedural irregularity, namely the FTT’s debarring order. The appeal has been determined on written submissions prepared by the appellant’s counsel, Andrew Brooke, who did not appear before the FTT, and by the respondent’s solicitor, Clarke Barrett, of Represent Law, who did.