The Upper Tribunal does not take kindly to the assertion that it operates “unwritten rules”, as was argued in the recent case of SS (Sri Lanka) [2018] EWCA Civ 1391.

The points before the court related to delay in promulgating a decision where credibility is in issue and whether a delay of three months makes the decision unsafe.

The appellant’s hearing before the First-tier Tribunal was on 23 December 2014. For reasons that remain unclear (excess Christmas pudding perhaps?) the determination was not prepared until 23 April 2015. Due to an administrative error by the judge it was not promulgated until 5 June 2015.

The appellant sought to argue that there was “an unwritten rule” and “solid, consistent line” from the Upper Tribunal that a delay of three months between the hearing taking place and the writing of the determination rendered such a determination unsafe. When granting permission, Lord Justice King gave directions seeking a joint statement from the parties confirming the existence of this practice. Unsurprisingly perhaps, the Home Office position meant this was not possible.

More surprising was that the respondent provided a statement from the President of the Upper Tribunal, Peter Lane, which rather undermined the appellant’s argument:.

Senior members of the Upper Tribunal are unaware of any rule requiring the Upper Tribunal to allow an appeal on the ground that there was a delay of more than three months (or indeed any specified period) before finalisation of a First-tier Tribunal decision…

This, along with other authorities, led to the Court of Appeal to find that the unwritten rule “does not exist and has not existed at least since the decision of the Court of Appeal in the Sambasivam case [decided 18 years ago]”.

Ultimately the Court found that there would need to be a link between any delay and the safety of the decision to create an error of law. Where a delay is three months or more the determination will require closer inspection.

It can therefore be confirmed that the approach to the issue of delay adopted by the Upper Tribunal in the case of Arusha and Demushi, applying the decision of this court in RK (Algeria), which requires a nexus to be shown between the delay and the safety of the decision, is the correct approach. The only significance of the fact that delay between hearing and decision has exceeded three months is that on an appeal to the Upper Tribunal this period remains an appropriate marker of when delay is of such length that it requires the FTT judge’s findings of fact to be scrutinised with particular care to ensure that the delay has not infected the determination.

Although obiter, the court’s enlightening remarks on demeanour at paragraph 33 onwards should be mandatory reading for all judges hearing oral evidence. They are summed up succinctly in paragraph 41.

Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

In fact, this is probably something we all need reminding of from time to time.

Editor’s note: with Nick’s agreement I would add a rider to his last point, which is that consistency does not necessarily equal truthfulness. There may well be very good reasons why a witness gives inconsistent accounts. This post by the Centre for the Study of Emotion and Law explains why we should not always expect a truthful account to remain consistent.