[2024] UKUT 00300 (LC)

On 22 December 2022, Mr Deane lodged a notice of appeal with the FTT. In it he repeated that he had no connection with the property and that he had been named in the tenancy agreement as a result of a mistake by Stonehenge, the agent managing it on behalf of Ms Raujackdine. The notice of appeal was accompanied by a copy of the registered freehold title for No. 86A confirming that she and not Mr Deane was the registered freehold proprietor and that the property was not subject to a registered lease, and an email from Stonehenge to Mr Deane dated 20 December 2022 acknowledging that a mistake had been made by them concerning the tenancy agreement for No. 86A.

The notice of appeal submitted in Mr Deane’s name did not provide details of a representative but gave his email address as [email protected]. Mr Deane subsequently explained to the FTT that the notice of appeal had been completed on his behalf by a Mr Kasi, the office manager of Deane Holdings (which I take to be the name of one of Mr Deane’s businesses) and that the email address was the one used by Mr Kasi and not by Mr Deane himself.

On 1 September 2023, the FTT gave directions (which began by repeating the defence advanced in Mr Deane’s notice of appeal) and set the case down for hearing on 18 December. A copy of the directions was sent to Mr Deane using the email address he had provided. In preparation for the hearing both parties were directed to file a bundle of documents in support of their position. As the FTT would need to be satisfied beyond reasonable doubt that Mr Deane had committed the suggested offence, the Council was directed to file its documents first.

The material which Mr Deane was directed to file in a single electronic file included a further copy of the notice of appeal and any documents filed with it (which the FTT already had), an “expanded statement of reasons for the appeal” including any additional grounds on which Mr Deane wished to rely and any response to the Council’s case, any witness statement to be relied on, and any other documents to be used at the hearing.

The directions also included a warning to both parties that in the event of a failure to comply, the FTT might strike out their case pursuant to rule 9(3)(a). That is the rule which authorises striking out where a party has failed to comply with a direction which stated that such a failure could lead to the striking out of the proceedings.

On 29 September 2023, the Council filed its documents in response to the appeal. These included a witness statement by one if its officers supported by a further 270 pages explaining the background to the Council’s selective licensing scheme and the steps which had been taken before the Council imposed the financial penalty on Mr Deane.

Mr Deane was required to pay a hearing fee of £200 which he did, after a reminder, on 11 October. He had been directed by the FTT to submit his bundle of documents in response to the Council’s case by 20 October, but he failed to do so.

On 11 December 2023, the Council asked the FTT to strike out the appeal, suggesting that it was unable to prepare as it claimed not to know the case that it was required to answer. If the FTT was not minded to strike out the appeal, the Council suggested the hearing on 18 December should be postponed.

On 12 December the FTT notified the parties that it was minded to strike out Mr Deane’s appeal under rule 9(3)(a) because he had failed to comply with the directions and warned him that it would do so if his documents were not filed by 4pm on 14 December.

Mr Deane did not comply with the FTT’s deadline and on Friday, 15 December the appeal was struck out and the hearing which was due to take place on the following Monday was vacated. Mr Deane was informed of his right to apply for the proceedings to be reinstated under rule 9(5).

Shortly after midday on 15 December, Mr Deane sent an email to the FTT with the documents he wished to rely on stating that he had tried telephoning and had left a message but not saying when he had done so. The email was sent from his personal email address, and not from the address in the notice of appeal. It arrived 20 hours after the deadline set by the FTT and after a direction had already been made striking out the appeal.

The FTT treated Mr Deane’s email as an application to reinstate the appeal and notified the parties that it would consider that question on 18 December, the next working day and the date originally fixed for the hearing of the appeal.