Judgments Part VI: Opening lines & memorable passages

Part IV in this series contained ten variants of this species.  Part 5 contained most of one judgment by itself.  The earlier volumes in the series are grouped together under the heading “Judgments” in the Menu at the top of the site.

I start with this new series with the latest gem from Upper Tribunal Judge Wikeley:

AF v SSWP (DLA) (No 2) [2017] UKUT 356, 12 September 2017


  1. Oh dear. Oh dear. Oh dear.

The background

2. This case is a “second time around appeal” before the Upper Tribunal. My decision on the “first time around appeal” is to be found with the case name and NCN (neutral case citation) AF v Secretary of State for Work and Pensions (DLA) [2015] UKUT 266 (AAC). That first time around appeal to the Upper Tribunal was supported by the Secretary of State’s representative. I gave extensive reasons for my decision in 2015 as I was so concerned at certain aspects of the procedure adopted before the First-tier Tribunal in Liverpool.

3. Indeed, I was so concerned that in my ruling granting permission to appeal on the first time around appeal, I described the case as a “car crash”. Moreover, taken together with its companion appeal, JF v Secretary of State for Work and Pensions (DLA) [2015] UKUT 266 (AAC), I described it as a “mini motorway pile-up” (see [2015] UKUT 266 (AAC) at paragraph 9, citing paragraph 4 of the permission ruling). It only gets worse second time around.

4. That description of the First-tier Tribunal’s conduct of the case might be thought by some to be a touch over-melodramatic. But it has undoubtedly got worse. Unusually, I am almost lost for words. To set the scene it may be best to start with the summary in the first time around decision in 2015 (at paragraph 2):

“This appeal is one of two related appeals. The present case, CDLA/5548/2014, concerns the adult daughter (‘the daughter’) of an appellant (‘the mother’) in another Upper Tribunal appeal under reference CDLA/5547/2014. Both mother and daughter, who lived at the same address, had been in receipt of disability living allowance (DLA) for some years. In 2014 the Secretary of State decided that the daughter had not been entitled to DLA from the outset of her claim in 2001, creating a recoverable overpayment of over £53,000. A disentitlement and overpayment decision was also made in respect of the mother, although in her case not going back to the start of her claim.”

5. This second time around appeal relates solely to the adult daughter’s case.

6. The Secretary of State’s representative in these proceedings, Mr Kevin O’Kane, very fairly supports this second appeal as his colleague did on the first time around Upper Tribunal appeal. As before, I give full reasons in the hope that it will be “third time lucky” in terms of holding an effective and proper First-tier Tribunal which provides the Appellant with a fair and just hearing



55. I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new Tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

56. I hope I do not see this case again.



For Number Two in this new series, here is Lord Justice Ward (again):

Greenland Bank Ltd v American Express Bank Ltd [ 2009] EWCA Civ 14

Lord Justice Ward:

In praise of forensic schizophrenia

  1. This is the kind of litigation that could feed the public’s worst perception of layers and the law.  Jonathan Swift, author of Gulliver’s travels, once described lawyers as:

“… a society of men … bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white …”

and then he added maliciously:

“… according as they are paid”

That calumny against the profession could perhaps be voiced in this case by a cynical observer of this litigation. Here Westmont Power (Bangladesh) Ltd (“Westmont”) brought an action against American Express Bank Limited (“Amex”) in Bangladesh for a declaration, in effect, that a guarantee given by Amex had not expired. Amex resisted vigorously and claimed the return of the guarantee from the beneficiary. Amex lost.

Now, in a complete volte-face, Amex have successfully contended before Evans-Lombe J. in a claim brought against it here by Greenland Bank Ltd (in liquidation) (“Greenland”) that they could have been wrong in that defence and that there is a real prospect that the Bangladesh court did decide the matter correctly against it. That is Amex’s defence here notwithstanding the fact that back in Dhaka Amex still stoutly maintain their appeal against that decision on grounds that it is riddled with error.

Riding two horses at the same time is always difficult enough: riding them when they are charging in opposite directions is an altogether remarkable feat, so let me begin by praising the skills of counsel for Amex, Mr David Wolfson, who with customary courtesy, cogency, and not a little charm, managed to stay in the saddle notwithstanding some hostile fire from at least this incredulous member of the court.

He escapes all Swift’s opprobrium. How did he manage it?



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