[2024] UKUT 00390 (TCC)

Mr Bedenham submits that the fact finding of the FTT was flawed or unreliable by reason of the inordinate delay in the FTT producing the Decision which was delivered some 11 months after the hearing. He relies on the fact that the FTT found that Mr. Paudel (the Applicant’s director) was not a credible witness (see paragraphs 217-237 of the FTT Decision) which conclusion was relevant to the FTT’s conclusion that the Appellant conduct was “deliberate” (see paragraphs 353 and 310) (and indeed any “fall back” finding of carelessness).

He argues that the assessment of Mr. Paudel’s credibility (which was in part based on the FTT’s assessment of his responses to questions asked of him during the course of the hearing – see for example paragraphs 225 and 236) is necessarily undermined by the passage of time. As Peter Gibson LJ observed in Goose v Wilson Sandford [1998] TLR 85 (where there was a 20 month delay in issuing the judgment):

“113.

Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J. denied himself the opportunity of making this further check in any meaningful way. …"