Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 157 (AAC)

Fecha: 05-Jul-2023

Dicta on adequacy of reasons

Dicta on adequacy of reasons

10.

Grounds a. and b. are that the reasons for the FTT decision were, in particular respects, inadequately explained. It may assist to set out some of the well-known authorities in this area. The underlinings in what follows are mine, indicating guidance I consider most helpful to resolution of this appeal.

11.

In Re Poyser and Mills’ Arbitration [1964] 2 QB 467, concerning reasons given by an arbitrator under agricultural holdings legislation, Megaw J said (at 478):

Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons that will not only be intelligible, but which deal with the substantial points that have been raised.

12.

In English v Emery Reimbold & Strick Ltd [2002] ECWA Civ 605, the Court of Appeal said at [17]: “As to adequacy of reasons, as has been said many times, this depends on the nature of the case”. The court approved Eagil Trust Co Ltd v Pigott-Brown [1985] 3 AER 119, 122 in which Griffiths LJ had stressed that there was no duty on a judge in giving his reasons to deal with every argument presented to him. It then said at [19]:

... if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, in may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.

13.

The court concluded that section of the judgement thus, at [21]:

When giving reasons a judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge’s decision.

14.

In the context of planning, Lord Brown of Eaton-under-Heywood summarised the effect of case law in South Bucks DC v Porter (No.2) [2004] UKHL 33 [2004] (at [36]):

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters [which contain statements of reasons] must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

15.

Even when reasons are plainly flawed, a decision will not necessarily be set aside. Referring to a decision of a reviewing officer as to whether a homeless person had a priority need for housing, Lord Neuberger said in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 at [51]:

. . . a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.

16.

The respondents cited R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 at [25], which said (at [25]):

It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.

17.

The respondents also cited Procter & Gamble UK v HMRC [2009] EWCA Civ 407 at [19]:

… All that is required is that ‘the judgment must enable the appellate court to understand why the judge reached his decision’ (per Lord Phillips MR in English v Emery Reimbold & Strick …) and that the decision ‘must contain …a summary of the Tribunal’s basic factual conclusion and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts’ (per Thomas Bingham MR in Meek v City of Birmingham District Council [1987] IRLR 250). It is quite clear how this tribunal reached its decision. In the words of Sir Thomas Bingham in Meek the parties have been told ‘why they have won or lost’ (see para 8).

18.

Davies v Information Commissioner and Cabinet Office [2020] AACR 2 at [16-18] discussed adequacy of reasons in the context of the FTT’s closed material procedure:

16.

The adoption of a closed procedure does not diminish the fundamental obligation of a tribunal to give adequate reasons, meaning that they “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’.”: South Bucks District Council v Porter(No.2) [2004] UKHL 33 [2004]; 1 WLR 1953 at [36]. Adequate reasons perform a number of important functions. They enable the parties to understand why one has won and the other has lost; they impose a discipline on the court or tribunal in focussing on relevant issues and ensuring that its decision is sound; and they enable a person affected by a decision or the appellate court or tribunal to judge whether the decision is lawful.

17.

In Browning [v Information Commissioner [2014] EWCA Civ 1050]Maurice Kay LJ said at [35] that, following a closed procedure a tribunal is under a duty to adopt maximum possible candour when writing the reasoned decision. This will include being told “at least whether, and as far as reasonably possible without giving the content of the material away, to what extent, the material made a difference”: Amin v Information Commissioner and DECC [2015] UKUT 0527 (AAC) at [80]. As Upper Tribunal Judge Turnbull said later in that same decision, if the tribunal is able to explain its decision without making use of closed reasons, so much the better. But if the decision cannot be explained adequately without giving closed reasons, the tribunal must do so rather than risk its decision being held to be wrong in law for inadequate reasons. Providing closed reasons will not assist in the parties who have been excluded from the closed hearing or third parties understanding the result. But they will assist in fulfilling the other two functions of reasons which we have set out above: assisting the tribunal to reach the right decision and enabling the appellate court or tribunal to identify whether the decision contains an error of law.

18.

It follows that, even though the whole of the reasons may not be open, the required standard of reasons in a closed procedure case is no lower than that required in any other case.