Nature and types of hearingTimes 9 April
What is a hearing?
8.1A hearing involves the members of the tribunal meeting as a body. In
R v Army Board of the Defence Council ex p Anderson,
1[1992] QB 169. Taylor LJ said:
There must be a proper hearing of the complaint in the sense that the board must consider, as a single adjudicating body, all the relevant evidence and contentions before reaching its conclusions. This means, in my view, that the members of the board must meet. It is unsatisfactory that the members should consider the papers and reach their individual conclusions in isolation and, perhaps as here, having received the concluded views of another member.
2[1992] QB 169 at 187.8.2This does not mean that the members must be physically present together in a particular location. Under TCEA, it is sufficient for them to communicate via modern technology. The definition in UTR r1(3) is illustrative:
3See also: GRC Rules r1(3); HESC Rules r1(3); IAC Rules r1(4); Lands Rules r1(3); PC Rules r1(3); SEC Rules r1(3); Tax Rules r1(3); WPAFC Rules r1(3).… ‘hearing’ means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication.
8.3As well as a meeting, a hearing requires consideration of the case put by each party to the proceedings. This requires that each party must be given the opportunity to produce evidence and provide arguments to support the case put to the tribunal
4Lord Reading CJ in The King v Tribunal of Appeal under the Housing Act 1919 [1920] 3 KB 334 at 340–341; Taylor LJ in R v Army Board of the Defence Council ex p Anderson [1992] QB 169 at 188. and to rebut the other party’s case.
5Score Draw Ltd v Finch (2007) Times 9 April. It also requires that, apart from special considerations such as national security, each party must know the case put by the other.
6Taylor LJ in R v Army Board of the Defence Council ex p Anderson [1992] QB 169 at 189. These requirements are derived from the principles of natural justice and article 6.
8.4It is not necessary for the parties to the proceedings to be present in order for there to be a hearing.
7Lord Wright MR in R v Income Tax Special Commissioners ex p Elmhirst [1936] 1 KB 487 at 500.Oral hearings and paper hearings
8.5A hearing may be an oral hearing or a paper hearing on the documents alone. An oral hearing is one that the parties to the proceedings are invited to attend. A paper hearing on the documents is one that the parties to the proceedings are not invited to attend. The word ‘hearing’ is appropriate for both procedures.
8Russell LJ in R v Immigration Appeal Tribunal ex p Jones [1988] 1 WLR 477 at 481. However, the rules of procedure under TCEA use ‘hearing’ in the sense of an oral hearing.
9See: UTR r1(3); GRC Rules r1(3); HESC Rules r1(3); IAC Rules r1(3); Lands Rules r1(3); PC Rules r1(3); SEC Rules r1(3); Tax Rules r1(3); WPAFC Rules r1(3).8.6A hearing, though, is essential. If the rules of procedure allow a case to be determined without a hearing, this means without an oral hearing.
10Lord Reading CJ in The King v Tribunal of Appeal under the Housing Act 1919 [1920] 3 KB 334 at 340.8.7The difference between an oral hearing and a paper hearing lies in whether the parties are entitled to attend, not whether they actually attend. This is significant in that one party may attend an oral hearing in the absence of the others, but no party may attend a paper hearing.
8.8Under TCEA, a tribunal may proceed with an oral hearing in the absence of a party. Two conditions must always be satisfied:
11See: UTR r38; GRC Rules r36; HESC Rules rr27 (other than mental health cases) and 39(1) (mental health cases); IAC Rules r28; Lands Rules r49; PC Rules r34; SEC Rules r31; Tax Rules r33; WPAFC Rules r29. (i) the party was notified of the hearing or reasonable steps were taken to do so;
12If the party did not receive the notice, the tribunal has power to set its decision aside: see chapter 15. and (ii) it is in the interests of justice to proceed with the hearing. Even if (i) is satisfied, it may still be a breach of natural justice to proceed in the party’s absence.
13MH v Pembrokeshire County Council [2010] UKUT (AAC) 28 (AAC). In deciding whether (ii) is satisfied, it is relevant to take account of the powers to remedy the position if it is later established that the party did not actually receive the notice.
14KH v CMEC [2012] UKUT 329 (AAC) at [19] and [28]. The remedial powers mentioned by the judge were (i) the tribunal’s power to set aside its own decision on the basis of the absence of a party from a hearing and (ii) the power to set aside on appeal for breach of natural justice. 8.9There are additional conditions before a tribunal may proceed in the absence of the patient in a mental health case under HESC Rules (r39(2)): (iii) the medical examination requirement must be satisfied; and (iv) the patient must have decided not to attend or be unable to do so as a result of ill health.
Composition and constitution of the tribunal
8.10The composition of the tribunal determines the number of members that comprise the tribunal for any particular purpose. This is ultimately governed by the Lord Chancellor under TCEA Sch 4 para 15 and the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, which confers power on the Senior President of Tribunals. The constitution of the tribunal determines the member or members to whom a matter is allocated. This is ultimately governed by the Senior President of Tribunals under TCEA Sch 4 para 15, which operates through practice statements. The practice statements must be applied in accordance with general principles of procedural law, such as the need to comply with natural justice and avoid bias.
15Wheeler v Information Commissioner [2016] UKUT 0052 (AAC) at [8]; JH v Secretary of State for Work and Pensions and MH [2016] UKUT 0158 (AAC) at [5]. They are also subject to any direction by the UT under TCEA s12(3)(a).
Should the tribunal hold an oral hearing?
8.11Whether to hold an oral hearing and the form of any hearing are case management powers.
16See: UTR r5(3)(f) and (g); GRC Rules r5(3)(f) and (g); HESC Rules r5(3)(f) and (g); IAC Rules r4(3)(f) and (g); Lands Rules r5(3)(f) and (g); PC Rules r6(3)(h) and (i); SEC Rules r5(3)(f) and (g); Tax Rules r5(3)(f) and (g); WPAFC Rules r5(3)(f) and (g).In the First-tier Tribunal
8.12The basic approach is that the First-tier Tribunal is under a duty to hold an oral hearing before making a decision, unless two conditions are satisfied:
17See: GRC Rules r32(1); HESC Rules r23(1) (other than mental health cases); PC Rules r34; SEC Rules r27(1); Tax Rules r29(1); WPAFC Rules r25(1). (i) each party must have consented to the matter being decided without an oral hearing; and (ii) the tribunal must consider that it is able to decide the matter without one.
8.13Condition (ii) may be applied in advance before a case is put to a tribunal for decision or at a paper hearing. Presumably the test is whether an oral hearing is reasonably required; otherwise the condition would never be satisfied.
8.14There are three exceptions to the basic approach. First, for mental health cases under HESC Rules, the duty to hold an oral hearing is absolute (r35). Second, there are special rules under IAC Rules to take account of the special circumstances of immigration and asylum cases (r25(1) and Sch para 9). And for criminal injuries compensation cases under SEC Rules, the tribunal may decide the proceedings without an oral hearing, but must hold one to reconsider the decision on the application of any party (r 27(4)–(6)).
8.15The duty applies to decisions that dispose of the proceedings, except for decisions:
•deciding post-decisions matters – correction, set aside, review and permission to appeal;
18See: GRC Rules r32(2); HESC Rules rr23(2) (other than mental health cases) and 35(2) (mental health cases); IAC Rules r25(3); SEC Rules r27(2); Tax Rules r29(2); WPAFC Rules r25(2). •striking out or barring,
19See: GRC Rules r32(3); HESC Rules r23(3) (other than mental health cases); PC Rules r31(4); SEC Rules r27(3); Tax Rules r29(3); WPAFC Rules r25(3). except in mental health cases under HESC Rules and under IAC Rules;
•implementation of a court order in a land registration case.
20PC Rules r31(4). In the Upper Tribunal
8.16In the Upper Tribunal, the holding of an oral hearing is in the discretion of the tribunal, but it must have regard to any view expressed by a party on the matter (UTR r34; Lands Rules r46). This implies that the parties must be given a chance to express a view.
8.17The discretion to hold an oral hearing must be exercised in accordance with the overriding objective. The key consideration is likely to coincide with the common law test for requiring an oral hearing: what is necessary in order to ensure a fair hearing?
21Taylor LJ in R v Army Board of the Defence Council ex p Anderson [1992] QB 169 at 187–188.8.18If the Upper Tribunal sets aside a decision, it may re-make it. In doing so, it may make findings of fact. If this involves deciding disputed issues of fact, the tribunal must hold an oral hearing.
22Jucius and Juciuvienè v Lithuania [2009] 1 FLR 403. But see the discussion in the following paragraphs.The right to an oral hearing
8.19The decision whether or not to hold an oral hearing where the rules of procedure do not so require will be informed by the principles that apply at common law or under article 6.
8.20The form that the hearing takes is subject to the overriding requirement that it be a fair one. This is the position under both domestic law and article 6.
23The relationship between domestic law and the Convention right was explained in R (Osborn) v Parole Board [2014] AC 1115 at [54]–[63]. The test is whether fairness requires a hearing in the light of the facts of the case and the importance of what is at stake.
24R (Osborn) v Parole Board [2014] AC 1115 at [2(i)]. The purpose is to assist in decision-making and to allow participation.
25R (Osborn) v Parole Board [2014] AC 1115 at [2(iv)]. It is never acceptable to decide against a hearing in order to save time, trouble or expense,
26R (Osborn) v Parole Board [2014] AC 1115 at [2(viii)] and [72]. although the person must have something to say that is relevant to the decision to be taken.
27R (Osborn) v Parole Board [2014] AC 1115 at [2(iv)] and [68].At common law
8.21There is no requirement that an oral hearing is required for all cases in all circumstances,
28Taylor LJ in R v Army Board of the Defence Council ex p Anderson [1992] QB 169 at 187 unless fairness so requires.
29Sullivan J in R (Ewing) v Department for Constitutional Affairs [2006] 2 All ER 993 at [27]. The duty to act fairly depends on the circumstances of the case.
30Clarke LJ in R (Thompson) v Law Society [2004] 1 WLR 2522 at 45. In some circumstances, an oral hearing may be essential; in other circumstances, it may not.
31[2004] 1 WLR 2522 at [45]–[46]. In
R (Ewing) v Department for Constitutional Affairs,
32[2006] 2 All ER 993 at [32]. Sullivan J said that:
I would accept, as a very broad generalisation, that fairness is more likely to require an oral hearing in proceedings before the High Court, as opposed to an administrative tribunal, bearing in mind the kinds of issues that are determined by the court, as opposed to administrative tribunals.
8.22One relevant circumstance is whether it will be necessary to determine an issue of disputed fact. However, this is not the sole decisive factor. As Lord Bingham explained in
R (West) v Parole Board:
33[2005] 1 WLR 350 at [31] and [35]. Although the quotations from Lord Bingham’s speech relate to the position at common law, they are equally application to article 6: see [44]. See also R (Osborn) v Parole Board [2014] AC 1115 at [73]–[79].While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The possibility of a detainee being heard either in person or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty …
Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Parole Board’s task is certainly to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points that are troubling the decision-maker.
Lord Hope emphasised the disadvantages of a practice of not holding oral hearings. He referred to the Board’s institutional reluctance to hold oral hearings and said:
It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of issues of fact that the prisoner wished to dispute. If the system is such that oral hearings are hardly ever held, there is a risk that cases will be dealt with instead by making assumptions. Assumptions based on general knowledge and experience tend to favour the official version as against that which the prisoner wishes to put forward.
34[2005] 1 WLR 350 at [66].8.23However, efficient and proportionate case management often requires, or justifies, consideration on the papers alone.
35Collier v Williams [2006] 1 WLR 1945 at [34].Under article 6
8.24An oral hearing is an instance of the fundamental principle of open justice
36Re A [2006] 1 WLR 1361 at [37]. and maintenance of public confidence in the judicial system.
37Moser v Austria [2007] 1 FLR 702 at [93]. However, there are limits to that principle. And there are exceptions to it.
38Re A [2006] 1 WLR 1361 at [37].8.25The European Court of Human Rights has drawn a distinction between the right to an oral hearing and the need to hold one. There must be a right to a hearing, but the right may be waived or there may be exceptional circumstances that justify not holding an oral hearing. In
Lundevall v Sweden,
39[2002] ECHR 733 at [34]; Application No 38629/97 Judgment on 12 November 2002. the Court said:
The Court first finds that the entitlement to a ‘public hearing’ in Article 6 § 1 necessarily implies a right to an ‘oral hearing’. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing …
Furthermore, a hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations …
40Salomonsson v Sweden [2002] ECHR 736; Application No 38978/97 Judgment on 12 November 2002 was to the same effect.There is not necessarily a right to an oral hearing at all stages of a case. The Court referred to oral hearings in a sequence of appeals:
In this connection, the Court reiterates that in proceedings before a court of first and only instance there is normally a right to a hearing … However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance … Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance.
41[2002] ECHR 736 at [36].According to the second sentence in this passage, the relevant factor is whether an oral hearing has been held below, not whether there was a right to one. In the case, the benefit claimant had a right to an oral hearing in the tribunal below, but had waived that right. But the Court held that he nonetheless should have been allowed an oral hearing on appeal, because his oral evidence was relevant to the issue that the tribunal had to determine.
42[2002] ECHR 736 at [39]–[40]. However, an oral hearing is not necessary if the issue for determination does not need oral input, even if no oral hearing has been held below.
43Döry v Sweden [2002] ECHR 731; Application No 28394/95 Judgment on 12 November 2002 at [42]–[43], where the issue concerned the interpretation of medical evidence.8.26One factor that may be taken into account in the case of an appellate body is the need for an expeditious handling of its case load.
44Hoppe v Germany (2002) 38 EHRR 285 at [63].8.27Lord Hope summarised the effect of the Strasbourg jurisprudence in
R (Dudson) v Secretary of State for the Home Department:
45[2006] 1 AC 245 at [34].What is at issue is the general right to a ‘fair and public hearing’ in article 6(1). There is no absolute right to a public hearing at every stage in the proceedings at which the applicant or his representatives are heard orally. The application of the article to proceedings other than at first instance depends on the special features of the proceedings in question. Account must be taken of the entirety of the proceedings of which they form part, including those at first instance. Account must also be taken of the role of the person or person conducting the proceedings that are in question, the nature of the system within which they are being conducted and the scope of the powers that are being exercised. The overriding question, which is essentially a practical one as it depends on the facts of each case, is whether the issues that had to be dealt with at the stage could properly, as a matter of fair trial, be determined without hearing the applicant orally.
8.28In
Moser v Austria,
46[2007] 1 FLR 702. the European Court of Human Rights decided that entire classes of case should not be excluded from public, and therefore oral, hearing without any discretion to hold one in an appropriate case
47[2007] 1 FLR 702 at [95]–[96]. and that public scrutiny was more important in disputes between individuals and the State than in private disputes.
48[2007] 1 FLR 702 at [97].8.29The domestic cases emphasise that the procedures available to the parties must be considered as a whole. If they allow a court of full jurisdiction to deal with the issues raised, there is no violation of article 6. So, a failure to hold an oral hearing where one was required at one stage will not be a violation if the issue can be dealt with appropriately in later proceedings. In practice, the issue is whether an appeal or judicial review is sufficient to allow the issues to be determined appropriately. This will depend on the issues raised in the case and on the powers of the court or tribunal on appeal or judicial review. Judicial review is usually concerned with the legality of a decision and with the procedures followed. It does not usually allow a further investigation into the facts. However, this may be done exceptionally, as in
R (Wilkinson) v Broadmoor Special Hospital,49[2002] 1 WLR 419. in which even the cross-examination of expert witnesses was permitted.
8.30A review by a body with full jurisdiction which extends to issues of fact need not resolve those issues by hearing oral evidence. In
R (N) v Doctor M,
50[2003] 1 FLR 667. the Court of Appeal said:
So far as we are aware, there is nothing in the Strasbourg jurisprudence to indicate that, even in a case where the question whether there has been a violation of a Convention right depends on disputed issues of fact or expert opinion, Art 6 requires those issues to be determined by oral evidence.
51[2003] 1 FLR 667 at [41].8.31The result is that it may not be necessary to hold an oral hearing at any stage of the proceedings.
52As in R (Thompson) v The Law Society [2004] 2 All ER 113.8.32An oral hearing is not necessary if a tribunal is only concerned with permission to appeal and does not make a full examination of the case.
53Lundevall v Sweden [2002] ECHR 733; Application No 38629/97 Judgment on 12 November 2002 at [35].Public hearings and private hearings
8.33If the tribunal holds an oral hearing, it may be in public or in private. The difference determines who may attend. This is discussed below.
8.34The basic approach is that hearings are in public, unless the tribunal directs that all, or part, of it is to be held in private.
54See: UTR r37(1)–(3); GRC Rules r35(1)–(3); HESC Rules r26(1)–(3) (other than mental health cases); IAC Rules r27(1)–(3); Lands Rules r48(1), (3), (4) and (5); PC Rules r33(1)–(4); SEC Rules r30(1), (3) and (4); Tax Rules r32(1)–(3); WPAFC Rules r28(1)–(3). This is consistent with the principle of open justice;
55This is a common law principle that also applies to a statutory body, subject to any statutory provisions and any countervailing reasons: Kennedy v Charity Commission [2015] AC 455 at [128]. it is permissible to depart from this if it is necessary in the interests of justice or for the protection of an individual.
56A v British Broadcasting Corporation [2015] AC 588. Privacy in the case of hearings affecting children is generally compliant with article 6.
57Pelling v Bruce-Williams [2004] Fam 155.8.35There are three exceptions to the basic approach.
8.36First, mental health cases under HESC Rules (but not under UTR) must be held in private unless it is in the interests of justice to hold the hearing in public (r38(1)). If the patient applies for a public hearing, the tribunal must consider: (i) the extent to which reporting could be controlled; (ii) the nature and extent of the patient’s understanding of the request; (iii) the patient’s safety at the hearing; and (iv) the impact on the patient’s condition.
58R (Mersey Care NHS Trust) v Mental Health Review Tribunal [2005] 1 WLR 2469.8.37In
AH v West London Mental Health Trust and the Secretary of State for Justice,
59[2010] UKUT 264 (AAC). the three-judge panel decided that this was compatible with the patient’s Convention right under article 6. The panel identified the following factors as relevant when considering whether to direct a public hearing:
•Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)?
•Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views?
•Are there any other special factors for or against a public hearing?
•Can practical arrangements be made for an open hearing without disproportionate burden on the authority?
60AH v West London Mental Health Trust and the Secretary of State for Justice [2010] UKUT 264 (AAC) at [44]. 8.38In
Independent News and Media v A,
61[2010] 2 FLR 1290. the Court of Appeal considered the right of access to proceedings in the Court of Protection. The Court decided that it was necessary to take account of a party’s right to a private life under Article 8 and the media’s right to freedom of expression under Article 10.
8.39Second, criminal injuries compensation cases under SEC Rules (but not under UTR) must be held in private unless two conditions are satisfied: (i) the appellant has consented to the hearing being held in public; and (ii) it is in the interest of justice to do so (r30(2)).
8.40Third, a case under Tax Rules may be held in private in five circumstances: (i) in the interests of public order or national security; (ii) to protect a person’s right to respect for their private and family life; (iii) to maintain confidentiality of sensitive information; (iv) to avoid serious harm in the public interest; (v) to hold a public hearing would prejudice the interests of justice (r32(2)). Strictly, this is not an exception. It gives the tribunal a power in the circumstances specified. It is more in the nature of a list of factors that must be taken into account in exercising the power to direct a private hearing. However, given the nature of the factors, it is likely that the tribunal will direct a private hearing if one of them is satisfied.
Attendance
8.41Whether a hearing is in public or in private determines who may attend. If it is in public, anyone may attend who has not been excluded. If it is in private, the tribunal may determine who is entitled to attend. Unless the press or general public are interested in attending, there is little practical significance between the two types of hearing.
8.42For some people, the position is the same for both types of hearing: the parties, their representatives, others who attend to assist and support them, witnesses, and other persons concerned. These are all entitled to attend, subject to the general and special powers of exclusion.
8.43The parties have a right to attend a hearing.
62See: UTR r35; GRC Rules r33(1); HESC Rules rr24(a) and 36; IAC Rules r27; Lands Rules r48(2); PC Rules r33(3) (private hearings); SEC Rules r28; Tax Rules r30; WPAFC Rules r26. This is subject to special powers of exclusion:
•under HESC Rules, the power to exclude an applicant under section 166(5) of the Education Act 2002 (r24); and
•under Tax Rules, the power to hold proceedings without notice (r30).
8.44Representatives who have been notified to the tribunal are entitled to attend under their power to do anything that the party may do.
63See: UTR r11(3); GRC Rules r11(3); HESC Rules r11(3); IAC Rules r10(4); Lands Rules r11(3); PC Rules r14(3); SEC Rules r11(5); Tax Rules r11(3); WPAFC Rules r11(4). Otherwise, representatives may only attend if they accompany the party.
64See: UTR r11(5); GRC Rules r11(5); HESC Rules r11(5); Lands Rules r11(5); PC Rules r14(3); SEC Rules r11(7); Tax Rules r11(5); WPAFC Rules r11(6). There is no equivalent power in IAC Rules. There is no power for these representatives to attend without the party.
8.45Obviously, those who accompany a party to the hearing, whether or not to assist in presenting the case, may only attend with the party.
65See: UTR r11(5); GRC Rules r11(5); HESC Rules r11(5); Lands Rules r11(5); PC Rules r14(5); SEC Rules r11(7); Tax Rules r11(5); WPAFC Rules r11(6). There is no equivalent power in IAC Rules.8.46Witnesses must be allowed to attend to give evidence. However, there is a special power to exclude them from the hearing until they give evidence.
66See: UTR r37(5); GRC Rules r35(5); HESC Rules rr26(6) and 38(5); IAC Rules r27(5); Lands Rules r48(7); PC Rules r33(6); SEC Rules r30(6); Tax Rules r32(5); WPAFC Rules r28(5). In some circumstances, it may be desirable, or even necessary, for a witness to hear other evidence. It may only be in this way that an expert can give an informed opinion on the basis of that other evidence. Otherwise, the basis for exclusion is the risk that the witnesses will adjust their evidence to fit evidence that has already been given. However, they may already know what that evidence is.
8.47There are others who are concerned in the proceedings and also have the right to attend under HESC Rules:
•children in special educational needs cases and discrimination in schools cases (r24(b));
•anyone notified of proceedings in a mental health case (r36(2)).
Exclusion from a hearing
8.48In addition to the special powers already identified, the Upper Tribunal and First-tier Tribunal have a general power to exclude individuals from a hearing. It applies regardless of the capacity in which the person would be entitled to attend the hearing, but only in defined circumstances. UTR r37(4) is illustrative:
67See also: GRC Rules r35(4); HESC Rules rr26(5) (other than mental health cases) and 38(4) (mental health cases); IAC Rules r27(4); Lands Rules r48(6); PC Rules 33(5); SEC Rules r30(5); Tax Rules r32(4); WPAFC Rules r28(4).(4)The Upper Tribunal may give a direction excluding from any hearing, or part of it–
(a)any person whose conduct the Upper Tribunal considers is disrupting or is likely to disrupt the hearing;
(b)any person whose presence the Upper Tribunal considers is likely to prevent another person from giving evidence or making submissions freely;
(c)any person who the Upper Tribunal considers should be excluded in order to give effect to a direction under rule 14(2) (withholding information likely to cause harm);
(d)any person where the purpose of the hearing would be defeated by the attendance of that person; or
(e)a person under the age of eighteen years.
8.49Rules equivalent to para(4)(d) are validly made and may properly apply to a legal representative, although the tribunal should aim to follow a procedure that best reconciles the divergent interests of the parties and minimises any disadvantages.
68Browning v Information Commissioner [2014] 1 WLR 3848 at [28], [33] and [35]; R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [71].