[2025] UKUT 178 (LC)

With the application was filed a witness statement by the appellant’s solicitor, who set out the chronology beginning with the 2015 planning permission and continuing through the conveyancing process. He explained that when he drafted the contract he had forgotten that BK402889 also included the Disputed Land, and that as a result the Disputed Land was transferred by mistake. He pointed out that since the sale the Disputed Land had remained fenced with a locked gate, with the appellant holding the only key. Exhibited to his witness statement was all the correspondence from his conveyancing file to which I have referred above.

On 30 January 2023 the FTT directed the appellant to serve her application on the respondent, and the respondent to file and serve any objection to the application within 28 of receipt of the application.

On 5 June 2023 the FTT made an order under rule 9 of its rules that unless the respondent provided any objection to the application by 26 June 2023 she might be debarred from taking further part in the proceedings. It seems a brief objection was received because on 1 August 2023 a further rule 9 notice was issued requiring “a detailed response to the application” by 21 August 2023. On 7 September 2023 the respondent was given an extension of time for compliance. From the reasons given it is apparent that Ms Philippou, the solicitor who acted for the respondent in the purchase, had died and her practice was subject to the intervention of the Solicitor’s Regulatory Authority so that it was proving difficult to obtain the conveyancing file; however, it was not until 17 June 2023 that the respondent had instructed solicitors in connection with the FTT proceedings. On 2 November 2023 the respondent was given a further extension until 16 November 2023.

On 16 November 2023 the respondent filed her grounds of objection. Her grounds stated that there was no mistake; that when she spoke with the estate agent about 39 Gordon Place he had told her there was “the added bonus” of the Disputed Land; and that she had viewed the property with her niece Ms Gabriella Sam-Yorke and was shown the Disputed Land. There was no common mistake and the inclusion of the Disputed Land “formed a crucial part of the Respondent’s decision to purchase the Property”. She also said that it would be inequitable to rectify the transfer now that three years had elapsed since her purchase. She said that she still had not been able to get hold of her former solicitor’s conveyancing file. The grounds were signed by the respondent’s solicitor, under the words “The Respondent believes the facts stated in this application are true”.

On 11 December 2023 the FTT ordered the parties to make disclosure by 22 January 2024, and to file witness statements by 4 March 2024. On 7 February 2024 the FTT made an order that unless the respondent gave disclosure by 23 February 2024 she would be debarred from adducing documents or other evidence in support of her defence of the claim. An order debarring her was made on 1 March 2024. The order stated that the respondent had persistently failed to make any attempt to engage with the proceedings, had made no attempt to compile a list of documents for disclosure, and had offered no evidence of her efforts to obtain the conveyancing file. The consequence of that order was that there was no evidence whatsoever from the respondent at the hearing before the FTT; there was not even written evidence, because the form of the statement of truth at the end of her grounds of objection meant that neither she nor her solicitor had attested to the truth of the grounds.

In August 2024 the appellant’s solicitors asked whether it would be possible for her to give evidence by video link as she resides in Australia, and also applied for permission to adduce a further witness statement made by Mr Saood on 17 July 2023 which was served on the respondent. In it he explained that the Disputed Land had been fenced since 2002 and had been used as a building yard by him and his workforce and for storage, and that it was visited by his workmen regularly. He exhibited photographs of the locked gates, and of his workman cutting down ivy and brambles growing over the fence.

At around the same time it seems that the respondent asked for permission to rely upon an email from a Mr Hughes of Landmark Auctions. On 25 September 2024 the FTT stated that it was minded to allow both pieces of evidence to be admitted and requiring either party, if they had any objection, to make submissions by 4 September 2024. The appellant’s solicitors replied reminding the FTT of its debarring order.

On 4 October the FTT emailed the parties to say that the respondent did not have permission to rely on any further documents because of the order of 1 March 2024. As to Mr Saood’s statement it said:

“As the Respondent will not have the opportunity to respond to the further witness statement by reason of the debarring order it is not in the interests of the overriding objective to admit the late statement.”

The FTT then conducted a hearing on 18 October 2024. The appellant was represented by counsel (not Mr Grant KC) and the respondent by her niece Ms Gabriella Sam-Yorke. The appellant renewed her application to admit Mr Saood’s evidence but was refused on the basis that it was too late and was not relevant.