[2023] UKUT 132 (AAC)

This ground is that, in setting the penalty amount at £92,000, the Tribunal wrongly:

made no discount for “the general credibility of the ICO [Information Commissioner’s Office]” despite serious methodological flaws in its investigation resulting in a six-fold miscalculation of the number of documents involved;

took no account of the ICO’s impropriety in withholding without cause from the Appellant the primary material needed to present its case, and “this impropriety impinged on the credibility of the ICO’s evidence and case”;

based its adverse credibility finding regarding Mr Budhdeo’s evidence on a matter unrelated to the MPN appeal which was put to him without warning in cross-examination and, at a later stage of the hearing, was explained as a lapse of memory. This provided no safe basis for a finding that Mr Budhdeo’s evidence lacked credibility, a finding which permeated the Tribunal’s entire analysis of his evidence. At the hearing, I asked Mr Coppel whether this sub-ground argued that the Tribunal’s fact-finding involved an error on a point of law and he confirmed that it did, the error being one of unfair procedure;

held against the Appellant its lack of evidence, apart from Mr Budhdeo’s, without applying the same standard to the Commissioner from whom there was not “any evidence whatsoever” despite the ICO being well placed to adduce evidence. At the hearing, I asked Mr Coppel to clarify this sub-ground and he informed me that it argued that the Tribunal’s fact-finding regarding matters of mitigation involved errors of law;

deferred to the Commissioner’s conclusions on “every aspect of the case”, save number of documents, when “there was no basis for…so doing”;