[2023] UKUT 247 (LC)

It is not for this Tribunal to interfere with the FTT’s management of its own cases. Instead, it is our function, through the determination of appeals, to give guidance on the implementation of the FTT’s Rules and to ensure that they are applied fairly and consistently. An important function of this Tribunal is to ensure consistency of approach amongst FTT judges (BPP Holdings, paragraphs [26] and [34] and R (Jones) v Ft-T (Social Entitlement Chamber) [2013] UKSC 19 at paragraphs [41] – [46]).

As the Supreme Court explained in BPP Holdings, the grounds on which an appellate tribunal may interfere with a debarring order made by the FTT are limited. The issue of whether to make a debarring order is very much one for the tribunal making that decision, and an appellate judge should only interfere where the decision is not merely different from that which the appellate judge would have made but is one which the appellate judge considers cannot be justified. That is a high hurdle. An appellate tribunal should not interfere with a case management decision by a judge who has applied correct principles and taken into account matters which should be taken into account and not taken into account irrelevant matters, unless it is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the FTT (BPP Holdings, paragraph [33]).

This restrained approach to appeals against discretionary case management decisions does not mean that an appellate tribunal can never interfere where a debarring order has been made. Unlike case management decisions of a more routine nature, a debarring order can often have the effect of determining the substantive case. For that reason at paragraph [34] of BPP Holdings Lord Neuberger PSC warned that:

“[T]here must be a limit to the permissible harshness (or indeed the permissible generosity) of a decision relating to the imposition or confirmation (or discharge) of a debarring order”.