[2025] UKUT 115 (LC)

Fecha: 01-Ene-2025

Conclusions

The outcome of the appeal

193.

The appeal is allowed, on Ground 1 and on Ground 2. On the basis of each of Ground 1 and Ground 2, I set aside the Interim Decision and the Interim Decision Directions.

194.

By reason of my decision on Ground 1, I re-make these decisions of the FTT as a decision that the Applicants are not permitted to pursue a case on the Contractual Liability Issue in the Application. I remit the case to the FTT, with a direction to the FTT to issue its decision on the Reasonableness Issue and to deal with any other consequential matters arising from its decision on the Reasonableness Issue.

Postscript

195.

This is an unfortunate case. I recognise that the question of whether the FTT should raise a new point of its own initiative is one which calls for the exercise of the FTT’s judgment and discretion. There can be no absolute rules. Much depends upon the facts and circumstances of the particular case. The facts and circumstances of the present case are unusual, which is why I have concluded that I am entitled to interfere with the Interim Decision and the Interim Decision Directions, and that I should give my decision on both of Ground 1 and Ground 2. In terms of the future I suggest that it is important for the FTT to keep firmly in mind the following matters, when deciding whether to raise a point of its own initiative:

(1)

The process in an application under Section 27A is an adversarial one. It is not inquisitorial.

(2)

The primary and, in most cases at least, the sole task of the FTT is to resolve the dispute which the parties have brought before the FTT for determination, on their pleaded cases.

(3)

The circumstances in which the FTT can and should intervene to raise a new point are limited; see in particular the guidance in Keddie, Admiralty Park, and Moustache.

(4)

In raising a new point the FTT should not descend into the arena or give the appearance of descending into the arena. The role of the FTT is limited to raising the new point, assuming that it is appropriate to raise the point at all. Thereafter, it is for the relevant party, to whose advantage the new point may be, to decide whether to pursue the new point. At that point, and assuming that the relevant party elects to seek to pursue the new point, the first task of the FTT is to hear from the other party or parties as to whether they object to the new point being taken. If they do, the FTT must then hear the parties on the question of whether the new point should be allowed into the relevant application. This will, in turn, engage the questions, but only amongst a number of other possible issues, of whether the new point can be brought in for determination without prejudice being caused to the other party or parties and, if there is such prejudice, whether the prejudice can be met by appropriate case management directions. In such circumstances, it may be appropriate to provide a litigant in person (for whom the rules and practice of the FTT are the same as they are for represented parties) with some limited assistance, in order to ensure that their case on these matters is fairly heard, but beyond that the FTT should confine itself to hearing the argument and deciding whether to allow the new point in and, if so, on what terms.

Mr Justice Edwin Johnson, Chamber President

8^th April 2025

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.