UTLC LC-2023-250 - [2023] UKUT 289 (LC)

The appeal is not against the service of documents by email. But it is worth setting out the FTT’s rule about service, in rule 16 of the FTT’s 2013 rules:

“(1)

Any document to be provided under these Rules, a practice direction or a direction must be—

(a)

sent by prepaid post or by document exchange, or delivered by hand to the address specified in paragraph (5);

(b)

sent by fax to the number specified for the proceedings;

(c)

as regards any document sent or delivered to or by the Tribunal, by such other method as the Tribunal may permit; or

(d)

as regards any document to be sent or delivered by a method other than one provided for by sub-paragraphs (a), (b) or (c) or another paragraph in this rule, by such other method as the recipient may permit.

…

(7)

Subject to paragraph (8), if a party provides a fax number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.

(8)

If a party informs the Tribunal and all other parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party, that form of communication must not be used.

The tenancy agreement gave the landlords’ email address for service of notices. Ms Radice made her application to the Tribunal in December 2021, and the agreement expired in August 2021. The relevant clause of the tenancy agreement stated:

“The Landlord and the Tenant agree that notice may be served on the other party by email. The email addresses for notice are: Landlord: [xxx@xxx]”

I have deleted the actual email address; it was admittedly Mr and Mrs Date-Bah’s email address, and although they did not check it after Ms Radice left the property it remained a live email address after that and emails did not bounce back. Ms Radice provided the FTT with Mr and Mrs Date-Bah’s email and postal addresses, and the FTT was entitled to use the email address.

Nor is it an appeal from the refusal to adjourn on Thursday 9 June 2022 in response to Mrs Date-Bah’s telephone call and emails. But it is important to note, since the FTT adopted the same reasoning in its refusal to adjourn on the day of the hearing, that in refusing an adjournment on that date the FTT did not suggest that Mrs Date-Bah was not telling the truth about not having had notice of the proceedings. It appears that the FTT accepted what she said but regarded the problem as her own fault. The FTT was sceptical about the doctor’s appointment, but did not give Mrs Date-Bah the opportunity to produce evidence about it (which was unlikely to have been available to Mrs Date-Bah when she wrote the email if, for example, she had made the appointment by telephone). As for the suggestion that Mr and Mrs Date-Bah could attend the hearing with their child, it is difficult not to regard that as unrealistic, and certainly inconsistent with the advice given to litigants attending remote hearings who are asked to be in a quiet place free of distractions.

As I said above, Mr and Mrs Date-Bah have permission to appeal the FTT’s decision on the grounds that the FTT erred in not adjourning the hearing on 13 June 2022, and that the hearing was therefore procedurally unfair.

The decision not to adjourn was a case-management decision, in the discretion of the FTT, and the Tribunal will only interfere with it if the decision was outside the generous margin of discretion. If the decision lay within the range of permissible decisions then it must stand, even if I would have made a different decision.