[2025] UKUT 157 (LC)

The matters were not put to MRL or its expert witnesses

The FTT in its decision of 3 July 2024 devoted just six paragraphs to the Additional Items, or rather to some but not all of them. It did not set out what was MRL’s position on any of those items, nor did it say what was the view of the authors of the BEFS report (apart from the generic comment earlier in the decision that their report concluded that none of the items referred to it by the order of 27 March 2024 were relevant defects). Mr Selby KC said that the FTT’s views about the Additional Items were not put to the authors of the BEFS report.

In its refusal of permission to appeal the FTT said:

“The tribunal’s notes of the final hearing record that there was discussion between the tribunal and the Respondent’s expert regarding all the above matters.”

That is not an assertion that matters were put to the authors of the report. We accept what Mr Selby KC told us about this aspect of the hearing and regard it as confirmed by the FTT’s comment in response to the point.

It is crucial that a party and its witnesses have the opportunity to answer the case against it before a court or tribunal reaches its conclusion. In these proceedings of course the FTT’s concerns about the Additional Items were its own concerns; they were not part of the leaseholders’ application nor of its pleaded case. For that reason we have already concluded that the decision was unfair and must be set aside, but this further point is an additional reason why the decision was unfair and cannot stand.