[2023] UKUT 143 (AAC)

I need to address the points in the previous paragraph first. The Appellant in this case is understandably more familiar with both the language and the conventions of US courts and tribunals than the courts and tribunals of England and Wales. This greater familiarity is reflected in the submissions he makes. However, the Commissioner is correct to identify the central issue on the instant appeal as being whether the FTT was right to strike out the Appellant’s case. This is an inquisitorial and not an adversarial jurisdiction and one which does not turn on narrow points of pleading and procedure. The effect of the Upper Tribunal’s grant of permission to appeal was to allow an error of law challenge to the FTT’s decision on the Commissioner’s strike out application. In addition, paragraphs 8 and 9 of my grant of permission to appeal made it clear that I was questioning whether the strike out power was indeed properly exercised on the basis that the grounds of appeal did not engage with the Tribunal’s jurisdiction.

I turn now to the substance of the matter. The FTT’s powers on an appeal under section 57 of FOIA are contained in FOIA section 58, which provides that the FTT may only allow the appeal (or substitute such other notice as could have been served by the Commissioner):

The precise meaning and import of this statutory provision has long been the subject of some debate, However, it is perfectly clear that the FTT’s remit under section 58 is to conduct a full merits review appeal that may include making different findings of fact to those of the Commissioner.

The Commissioner’s primary submission in this respect is that the appeal should be dismissed as the FTT was correct to find that the grounds did not engage its statutory jurisdiction under section 58. It is certainly true that Dr Lin complained about several issues that were essentially irrelevant to the proper scope of the appeal (e.g. the adequacy of the ICO investigation in this case). However, the Commissioner’s Response to the appeal then seeks to argue that the Appellant’s challenge to the vexatiousness finding in the Decision Notice was insufficient to engage the FTT’s jurisdiction (at §32):

This submission is not persuasive for at least two reasons.

First, while it is true that Grounds §4 is in effect a bare assertion, denying that the FOIA request was vexatious, this was not the end of the matter. Several of the Appellant’s remaining grounds amounted to challenges to those of the Commissioner’s factual findings which constituted the building blocks for the conclusion that the Appellant’s FOIA request was indeed vexatious. Thus, the Appellant took issue with the Commissioner’s reading of the original FOIA request (Grounds §11), with the Commissioner’s finding that the Appellant was a self-confessed conspiracy theorist (Grounds §12 & §13), with the Commissioner’s findings that the Appellant was acting in concert with others (Grounds §14) and his conduct was obsessive and unreasonable (Grounds §15-§19). These challenges may well be good points or they may equally well or more so be bad points, or a mixture of the two, but what is clear is that they are all relevant to the test under section 14 and 17(6)(a). As such, the grounds engaged the jurisdiction of the FTT under section 58.

Second, and to the extent that the grounds of appeal were unclear, the draconian nature of a strike out order is such that other case management directions might have been usefully explored. For example, in such a case the FTT could have referred to say three or four of what were apparently the most powerful factors pointing towards a finding on the facts of vexatiousness. The FTT could then direct an appellant to explain the basis of, and evidence for, the proposed challenge to the finding in question.

As Upper Tribunal Judge Stockman observed in Jones v Information Commissioner & Department for the Environment (NI) [2016] UKUT 82 (AAC); [2016] AACR 33 at paragraph 42:

The FTT found the Appellant’s appeal had no reasonable prospects of success as his grounds of appeal did not engage its statutory jurisdiction. His appeal may, or may not, have had reasonable prospects of success but the grounds of appeal were sufficiently particularised to engage the FTT’s jurisdiction. The FTT’s decision on the Commissioner’s application accordingly involved an error of law and is set aside (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

In those circumstances the Commissioner’s submission is that the Upper Tribunal should re-make the FTT’s decision and strike out the case. This is on the basis that (as the Response argues at §40) “enough judicial time and resource has been taken up already by this plainly unmeritorious case”. I demur. Fact-finding is best regarded as the prerogative of the FTT. I remit the case, and so the Commissioner’s application for a strike out, to the FTT for reconsideration before a different judge.