The president of the first-tier tribunals tried to bar a law firm from hearings in Birmingham because two of its directors had been appointed as judges there, a court jugment has revealed. 

The issue arose last year after the directors of national firm Duncan Lewis were allocated to sit at the Birmingham Tribunal Centre. The president issued a policy that all cases in which an appellant was represented by Duncan Lewis were to be transferred 120 miles to Hatton Cross in West London. Duncan Lewis had submitted that the policy was unlawful.

It emerged in a High Court judgment published last week that the president had decreed that all ongoing appeals lodged at Birmingham by the firm would be moved ‘to avoid any perception of bias’.

Three weeks after the protocol was issued, Duncan Lewis wrote to the president explaining it was not practicable and requesting that affected cases be listed in front of other judges in Birmingham. No response was received to that letter, and proceedings were subsequently issued on behalf of three claimants against the lord chancellor challenging the policy.

In May 2019, the lord chancellor wrote to all three, saying the president had decided to amend the policy, leaving it to individual judges to flag up any incidences where a conflict may exist. It was made clear in June 2019 that the protocol had, in practice, been revoked. The lord chancellor than stated that the applications for general interim relief had been overtaken by developments and warned that unless all three claims were discontinued then he would seek costs against them.

At a hearing last month, two of the claimants sought to discontinue their claims but with costs paid, because they had obtained the equivalent of the relief sought – namely an order quashing the policy.

For the claimants, Christopher Buttler submitted that the issue of the protocol by the president was ‘outside the ambit of judicial acts’ and was purely an administrative decision, capable of judicial review in the ordinary way. With proper engagement, the defendant could have withdrawn the policy in response to the initial proceedings and avoided costs.

Judge David Pittaway QC, said the real issue in the case was whether the lord chancellor had over-stepped the mark and ceased to act neutrally in its conduct of the judicial proceedings. While the claims had become academic when the protocol changed, without them, the judge ruled, the blanket policy would have continued. The defendant was ordered to pay the claimants’ costs.