Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 143 (AAC)

Fecha: 21-Jun-2023

The Upper Tribunal’s grant of permission to appeal

The Upper Tribunal’s grant of permission to appeal

14.

On 3 April 2023 I granted the Appellant permission to appeal, observing as follows:

The First-tier Tribunal struck out the appeal on the basis that the Appellant’s grounds of appeal “do not clearly engage with the jurisdiction of this Tribunal under s.57 FOIA” (paragraphs 4 and 7). On that basis it was found that the case was “not fit for a full hearing”, citing HMRC v Fairford Group [2014] UKUT 329 (TCC).

However, the Appellant’s letter of appeal asserted (at §4) that the “Appellant's FOIA request was not manifestly unjustified, inappropriate, burdensome, threatening, impolite, nor an improper use of a formal procedure”. The letter of appeal went on to take issue with several of the factual findings of the Respondent in the Decision Notice. Arguably, those were all issues which went to the issue of whether the request under FOIA was vexatious within the terms of section 14. In those circumstances, can it really be said that the grounds did not engage with the Tribunal’s jurisdiction?

I recognise that the grounds of appeal may not have been professionally drafted by a lawyer. However, that should not preclude a fair trial of the issues. In that context, I draw the parties’ attention to the observations of the Upper Tribunal on the operation of the strike out procedure in cases involving litigants in person in the following cases: AW v IC and Blackpool CC [2013] UKUT 30 (AAC), AM v Information Commissioner [2014] UKUT 239 (AAC) and Jones v Information Commissioner & Anor (Northern Ireland) [2016] UKUT 82 (AAC). All three decisions are available for consultation free of charge on Bailii. I accept that not all the observations in those cases will be directly in point – for example, in AM v Information Commissioner there was an expectation that there would be an oral hearing of the appeal. However, I consider the following summary from AW v IC and Blackpool CC still holds good:

The principles governing the application of rule 8(3)(c)

It is important to consider issues of first principle. It is well established in the ordinary courts that the historic justification for striking out a claim is that the proceedings are an abuse of process (see e.g. Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 541B per Lord Diplock). On that basis, the power should only be exercised in plain and obvious cases (see Lonrho PLC v Fayed [1990] 2 QB 479 at 489F-G per Dillon LJ and 492G-H per Ralph Gibson LJ).

More recent rulings from the superior courts point to the need to look at the interests of justice as a whole (see e.g. Swain v Hillman [2011] 1 All ER 91). It is also well established that striking out is a draconian power of last resort: see Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 at 1933B per Lord Woolf MR (where, admittedly, the issue was delay rather than lack of reasonable prospects) and also, in the Upper Tribunal, AS v Buckinghamshire CC (SEN) [2011] AACR 20 and [2010] UKUT 407 (AAC) at [14]. It is, moreover, plainly a decision which involves a balancing exercise and the exercise of a judicial discretion, taking into account in particular the requirements of Rule 2 of the GRC Rules.

So what then is meant by saying that “there is no reasonable prospect of the appellant’s case, or part of it, succeeding” (within rule 8(3)(c))? The standard and authoritative commentary on tribunal procedure, by Judge Edward Jacobs (Tribunal Practice and Procedure, 2^nd edn, 2011, at [12.39]), advises that this “is only appropriate if the outcome of the case is, realistically and for practical purposes, clear and incontestable. It is not usually appropriate if facts relevant to the ultimate outcome of the case are disputed” (emphasis added).

10.

Judge Jacobs cites as authority for this proposition the employment case of Ezsias v North Glamorgan NHS Trust [2007] EWC Civ 330; [2007] ICR 1126. There Maurice Kay LJ held as follows:

“29.
It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is was [sic] Elias J held. I do not consider that he put an unwarranted gloss on the words "no reasonable prospect of success". It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”

11.

Furthermore, in JP v Standards Committee of Surrey County Council [2011] UKUT 316 (AAC) Judge Jacobs held that there was “no significant difference in meaning between ‘reasonable prospect of the appeal being successful’ and ‘realistic prospects of success’” (at [16]) and noted that, in a different context, the Court of Appeal has decided that ‘no realistic prospect of success’ can for practical purposes be taken to mean the same as ‘clearly unfounded’: R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 at [10].