[2023] UKUT 247 (LC)

On 3 May 2022 the respondents applied to the FTT for repayment of the whole of the rent of £16,566 they had paid between the commencement of their tenancy on 29 August 2020 and the acceptance by Haringey of the appellant’s licence application on 9 May 2021.

The FTT issued directions by email on 20 June 2022. These required the appellant to file and serve a statement of its reasons for resisting the application, the signed statement of any witness on whose evidence it wished to rely and copies of any other documents relevant to its case by 22 August. The respondents were to have the opportunity to reply to the appellant’s case by 26 September.

The FTT’s directions advised the appellant to obtain independent legal advice. It also included a warning that if the appellant failed to comply with the directions, it might be barred from taking any further part in all or part of the proceedings and the FTT might determine all issues against it. A similar warning was given to the respondents.

The appellant did not file any documents on 22 August as the FTT’s directions had required. Its reasons were explained by one of its directors, Mr Ashok Patel, in a telephone call to a member of the FTT’s staff on 9 September and in a letter sent later the same day. Shortly after noon that day the respondent’s solicitors sent an email to the appellant pointing out that it had not filed the required documents with the FTT and enquiring if it was its intention to settle the claim. That email caused Mr Patel to telephone the FTT and, after speaking to a member of its staff, to send his own email shortly after 5pm.

In his email of 9 September Mr Patel explained that he had been waiting for directions from the FTT but had been unaware, until he received the respondents’ solicitor’s email earlier that day, that these had already been made. Once alerted, he had discovered the FTT’s directions in the spam folder of the company’s email account. He had not responded to the directions in time because he had been unaware of them, and he now requested an extension of time to enable the company to take legal advice (as the FTT’s had encouraged it to do) and to prepare the required documents for the case. Later the same evening Mr Patel sent a copy of that letter to the respondents’ solicitor.

On 2 October the FTT responded to Mr Patel’s letter, asking for confirmation that his request for an extension of time had also been sent to the respondents before it could be considered. Mr Patel replied the next day, confirming that a copy had indeed been sent to the respondents’ solicitors on the same day it had gone to the FTT. The FTT replied, confirming that Mr Patel’s correspondence would be dealt with shortly. Separately, on 17 October, Mr Patel returned a listing questionnaire as the FTT had requested.

Nothing further was heard from the FTT about the appellant’s application for an extension of time to file its documents.

On 15 December the FTT sent the parties notice that the final hearing would take place on 13 January 2023. Eight days later, on 23 December, Mr Patel sent three documents to the FTT (although they did not reach the panel which eventually heard the case) and to the respondents’ solicitors, they being a statement of case dated 9 November, his own witness statement bearing the same date, and an electronic bundle of documents containing communications between the appellant and Haringey in November 2020 about the appellant’s previous attempts to obtain a licence using the authority’s online portal.

Mr Patel’s witness statement appears to have been prepared with professional assistance. In it he maintained that the appellant had committed no offence because it had a reasonable excuse for not having a licence, which was a defence under section 72(5), 2004 Act. He claimed to have taken all reasonable steps he could in May 2020 and thereafter to lodge the appellant’s application for an HMO licence with the authority but had been unable to do so successfully until 10 May 2021 despite seeking the assistance of the authority’s staff and following their advice. The authority was said to have failed to process the application or the payment made by the appellant. These assertions were supported by copies of prolonged email exchanges with Haringey from November 2020 until May 2021.

On the same day he sent his witness statement Mr Patel telephoned the FTT and followed up with an email asking for an adjournment of the hearing so that he could look for legal representatives and explaining that documents which appeared to be going to the respondents were not being received by him. He did not say whether the missing documents included the notice of hearing, or whether he was referring simply to the original directions. That application was refused by a procedural judge on 10 January, although I have not been shown a copy of the refusal decision.

The appellant finally instructed solicitors for the hearing who filed a further witness statement and a skeleton argument on its behalf. These documents requested relief from sanctions (although no sanction had yet been imposed) so that the appellant could rely on the evidence filed in December 2022 and put forward its substantive defence. They did not request an adjournment of the hearing.

The appellant was represented by Mr Young of Londonium Solicitors at the hearing on 13 January. Mr Patel was also present as were the respondents, Mr Ramsdale and Mr Keegan, both of whom gave oral evidence. It appears from Mr Young’s contemporaneous note (there is no transcript) that at the start of the hearing the Judge informed him that since the appellant had not filed any evidence it would be debarred from participating or relying on the skeleton argument he had filed on its behalf. Mr Young was nevertheless permitted to make an oral application for relief against that sanction and for permission to rely on Mr Patel’s evidence. That application was refused and the appellant was debarred from participating in the hearing in any way, whether by giving evidence, by cross examining the respondents or by making submissions.