[2024] UKUT 56 (LC)

At paragraph 6 of its decision the FTT said:

“A report was prepared by Mr Payne of [RPA consultancy Limited], a company associated with the Applicant company, which recommended a series of works to be carried out some of which were said to be urgent or which should be commenced immediately. The Applicants rely on the findings of this report to justify the commencement of the works prior to issuing s20 documentation which they admit was in part non-compliant with the requirements of the section. The Tribunal is not satisfied that this report gives an independent and unbiased view of the proposed works because Mr Payne is also a Director of the Applicant company. He did not give evidence at the hearing.”

Later at paragraph 12 the FTT said:

“[The appellant] insist that it was necessary to start the works immediately because the building was likely to collapse. Although the words ‘urgent’ ‘immediate’ and ‘necessary’ do appear in Mr Payne’s report (see above para 7) the Tribunal prefers the more moderate approach taken by Mr Partridge who agrees that some works are urgent but denies the fragility of the structure of the building. The Tribunal takes the view that none of the works undertaken by the Applicants could not have waited for the 2-3 months during which a proper s20 procedure could have been carried out.

13.

Ms Meigh a Director of the Applicants, an established property company, gave evidence on their behalf. She conceded that Mr Payne had a conflict of interest caused by his Directorships of both the Applicant company and the company carrying out the survey of the property.”

At paragraph 22 the FTT said:

“In the present case the works which were done have been described by the Applicants as both structural and urgent. However, insufficient evidence has been produced to support this assertion, and the evidence that has been produced by Mr Payne is conflicted as he has a direct interest in the property. This interest was not declared to the Tribunal, and only became apparent at the Hearing.”

It is difficult to understand exactly the status of what the FTT was saying about Mr Payne; I take it as a finding of fact that he had a conflict of interest, and that as a result of that conflict the FTT did not accept what his report said about the urgency of the works. There appears also to be criticism of the appellant for not disclosing that “conflict of interest” before the hearing.

The first thing to say about the FTT’s findings in relation to Mr Payne is therefore that they were irrelevant to the decision it had to make. The FTT was under the misapprehension that the appellant had to prove that the works were urgent; it did not, and therefore it was not necessary to make any findings about Mr Payne’s report.

Moreover, and more seriously, what the FTT said about Mr Payne betrays a misunderstanding of the concept of conflict of interest. Mr Payne was not a witness. He made, or rather his company made and he wrote, a report to the appellant about the condition of the building. The fact that he was a director of the appellant and of RPA Consultancy Limited does not make that the slightest bit improper. The FTT did not identify the conflict that it was concerned about; this was not a case where an expert witness has a relationship with the party calling him or her, so as to create a conflict between the duty to the client and the duty owed to the court or tribunal. If the FTT thought that Mr Payne’s interest as director of the appellant might lead him to exaggerate the urgency of the work so that the appellant might get away with not consulting, that is fanciful and lacks any sense of commercial reality.

The appellant had bought a property which was – as I can see from photographs in the bundle – in a shocking state. For Mr Payne as director of the appellant to produce a professional report through RPA Consultancy Limited was prudent and proper, and the appellant also had a report from Mr Partridge.

As to the implied criticism that the appellant did not disclose the conflict of interest, I can see no basis for that. I do not think there was any intention to conceal the fact that Mr Payne was a director both of the appellant and of RPA Consultancy Ltd; I infer that the point was not flagged up because it did not occur to anyone that there was a problem.

The FTT’s finding that Mr Payne had a conflict of interest is set aside.

The FTT allowed that finding to cloud its view of Mr Payne’s report and therefore of the appellant’s case, which the FTT thought depended upon a judgment as to whether or not the work had been urgent. The weight of the evidence, seen in both Mr Partridge’s and Mr Payne’s reports, indicated that much of the work was urgent and the FTT’s rejection of that evidence was irrational. But as I have already said, urgency was not a precondition. The appeal has succeeded and it is not necessary to go any further.

By way of postscript to this ground I observe that the FTT’s misunderstanding about conflict of interest would not have arisen had the FTT not adopted an extraordinary procedure, both in insisting on hearing evidence from Ms Meigh who had not made a witness statement, and in cross-examining her when her evidence was not contested by the respondent. That was unfair to her and to the appellant, and led the FTT into further erroring its consideration of the status of Mr Payne.