UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

The Applicant relies on (i) her own personal statement [HB/21/286]; (ii) two letters from her counsellor, [] [HB/18/278] and [HB/20/284]; (iii) a copy of a prescription for antidepressant medication [HB/19/283]; (iv) a letter obtained from her General Practitioner (dated 19 April 2024, “the First GP Letter”) [HB/22/300]; and (v) a further letter from her GP (dated 16 May 2024, “the Second GP Letter”) [HB/23/301].

There was no oral evidence from any of the Applicant’s witnesses and the Tribunal gave the Applicant a reasonable opportunity to give evidence or call the authors of the written evidence at the hearing. The Tribunal has also previously offered to put in place any reasonable adjustments to accommodate the Applicant’s health at any hearing when attending, participating or giving evidence. There is no suggestion to date that the Applicant is unfit to participate in proceedings or unfit to give evidence (either in the Privacy Applications or the substantive hearing of the reference).

The Applicant attended the hearing on 5 November 2024 as a party, rather than as witness, and the Tribunal ensured that breaks in proceedings were taken when appropriate. While the Authority did not invite the Tribunal to draw any adverse inferences from the absence of the Applicant giving evidence, it is right to record that less weight may be given to written evidence if it has not been tested in cross examination. It is a matter the Tribunal has taken into account and it does give less weight to the Applicant’s written statement where it has not been tested in cross examination.

I am satisfied that the evidence relied upon by the Applicant falls short of providing “cogent evidence that there is significant likelihood of harm which makes publication unfair” (Darren Antony Reynolds v FCA [2023] UKUT 234 (TCC) at [20]). The documents are not cogent evidence “that publishing the Decision Notice would be likely to result in anything happening which could be considered to result in publishing the Decision Notice being unfair” to her (Reynolds at [53]). In short, the Applicant has not demonstrated that publication of the Decision Notices nor the details of the reference on the register would create any substantial likelihood or significant risk of psychological or physical harm to the Applicant herself.