Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 143 (AAC)

Fecha: 21-Jun-2023

The proceedings in the First-tier Tribunal

The proceedings in the First-tier Tribunal

On 10 October 2022 Dr Lin lodged a notice of appeal with the FTT against the Commissioner’s Decision Notice IC-150443-P0Y0.

10.

On 15 November 2022 the Commissioner filed a response resisting Dr Lin’s appeal. The Commissioner invited the FTT to strike out the appeal under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) on the basis that the Appellant “has failed to set out in the grounds of appeal why the Commissioner’s Decision Notice is not in accordance with the law”. In the alternative, the Commissioner invited the FTT to uphold the Decision Notice and so dismiss the substantive appeal.

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The FTT accordingly permitted the Appellant to make representations on the strike out application as required by rule 8(4). Dr Lin did so in writing on 13 December 2022 and in a revised reply dated 15 December 2022.

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The FTT acceded to the Commissioner’s strike out application in a ruling dated 12 January 2023 as follows (with a minor typo corrected in paragraph (4)):

The Respondent’s Strike Out Application dated 15 November 2022 is allowed.

The Information Commissioner published a Decision Notice on 13 September 2022 which found that the public authority was entitled to rely on s. 17 (6) of the Freedom of Information Act 2000 (‘FOIA’) in refusing to answer the Appellant’s information request. The Appellant filed a Notice of Appeal on 10 October 2022.

On 15 November 2022, the Information Commissioner, in filing its Response to the appeal, applied for a strike out under rule 8 (3)(c) of the Tribunal’s rules on the basis that the appeal had no reasonable prospects of success.

The Appellant’s Grounds of Appeal take issue with the Decision Notice on many levels and ask the Tribunal to direct that the request was not vexatious. However, they do not clearly engage the jurisdiction of this Tribunal under s. 57 FOIA by identifying an error of law or wrongful exercise of discretion in the Decision Notice.

The Appellant was invited to make submissions in response to a proposed strike out, as required by rule 8 (4). On 13 December and 15 December 2022, the Appellant reiterated his grounds of appeal and provided the Tribunal with exhibits A to G.

I have considered the Upper Tribunal’s decision in HMRC v Fairford Group (in liquidation) and Fairford Partnership Limited (in liquidation) [2014] UKUT 0329 (TCC), in which it is stated at [41] that

…an application to strike out in the FTT under rule 8 (3) (c) should be considered in a similar way to an application under CPR 3.4 in civil proceedings (whilst recognising that there is no equivalent jurisdiction in the First-tier to summary judgement under Part 24). The Tribunal must consider whether there is a realistic, as opposed to a fanciful (in the sense of it being entirely without substance) prospect of succeeding on the issue at a full hearing…The Tribunal must avoid conducting a “mini-trial”. As Lord Hope observed in Three Rivers the strike out procedure is to deal with cases that are not fit for a full hearing at all.

Applying this approach, I have considered both parties’ representations and concluded that this is a case which may be described as ‘not fit for a full hearing’. This is because the role of this Tribunal under s. 57 FOIA is to decide whether there is an error of law or inappropriate exercise of discretion in the Information Commissioner’s Decision Notice. The grounds of appeal simply do not engage with that jurisdiction.

It does not therefore seem to me that any Tribunal properly directed could allow this appeal. In all the circumstances, I have concluded that this appeal should be struck out as having no reasonable prospects of success. I direct accordingly.

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On 20 February 2023 the FTT then also refused permission to appeal to the Upper Tribunal.