[2025] UKUT 178 (LC)

Mr Grant KC raised two further arguments about the way the judge looked at the evidence, or lack of it, before her.

First, one of the judge’s reasons for refusing rectification was the absence of evidence from Mr Saood; yet Mr Saood had made a witness statement several months before the hearing and the FTT did not allow the appellant to rely upon it – first in its email of 4 October 2024 and then again at the hearing. For the appellant it was argued that that was a procedural error on the part of the FTT.

I agree. As we saw above, the FTT excluded Mr Saood’s evidence because the respondent could not respond to it (paragraph 27 above). That was an extraordinary decision, in effect punishing the appellant for the respondent’s default. Moreover the evidence was excluded despite the fact that the respondent did not object to its being adduced. The FTT’s email of 4 October 2024 is signed by the FTT’s listing officer but I assume that it was written on the instructions of a judge. It placed her in a very difficult position because important evidence was not before her. The Upper Tribunal will rarely interfere with a case management decision made by the FTT, and only if an error of law or some other irrationality can be shown. The decision to exclude Mr Saood’s evidence was irrational, and was taken in disregard of relevant considerations. The judge’s own decision at the hearing to continue to exclude it because it was submitted too late and because it was irrelevant would not have been made had the previous direction not been given and I need say no more about it.

If the application for rectification had failed only because Mr Saood had been prevented from giving evidence then I would have set aside the FTT’s decision and remitted the matter for a re-hearing. But since the appeal has already succeeded on grounds 2 and 3 there is no need for me to do that.

Second, Mr Grant KC argued that the FTT should have attached some weight to the estate agent’s email (paragraph 30 above) which confirmed that the estate agents knew nothing about the Disputed Land. In my judgment the judge was right to accord it less weight than she would have given to a witness statement by the estate agent; but to dismiss it as readily as she dismissed the respondent’s account of the transaction was, again, irrational. The respondent’s account was implausible in light of the contemporaneous documentary evidence, whereas the estate agent’s email was entirely consistent with what can be seen in the sales particulars and the memorandum of sale and with the appellant’s solicitor’s email.

However, again, no further consequences flow from that since the appeal has already succeeded.