Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 303 (AAC)

Fecha: 19-Jul-2023

The Upper Tribunal proceedings

20.

Ms Forstater sought permission to appeal against the FTT on eight grounds. Many of these grounds overlap. They are that the FTT erred in law:

(1)

in failing to make any finding on the crucial factual issue that determined whether the Judicial College was the same body as the Judicial Studies Board, namely what was the nature of the change that took place on 1 April 2011;

(2)

in approaching the legal questions for its determination on the basis that the Appellant bore a “burden of proof” to satisfy it that the Commissioner’s decision was wrong in law;

(3)

in approaching its factual determination about the nature of the transition from the Judicial Studies Board to the Judicial College on the basis (tacit, or implicit) that the Appellant bore the burden here too;

(4)

in finding (at paragraph 32) with no proper basis in the evidence that the Judicial College was separate body from the Judicial Studies Board, and not simply the same body under a new name;

(5)

in failing, if necessary, to give the expression “the Judicial Studies Board” a properly purposive construction to give effect to Parliament’s evident intention in the drafting of Schedule 1;

(6)

in failing, if necessary, to adopt an amending construction of the expression “the Judicial Studies Board” in Schedule 1 to the same end;

(7)

in failing, when considering the appellant’s submission that the purpose of the Judicial College was to train the judiciary, to consider or decide what the purposes of the Judicial College were, or whether they included the training of the judiciary; and

(8)

in inferring from its conclusion that the information was held by the Judicial College to support its judicial functions that the Judicial College held the information on behalf of the judiciary, and (by implication) not for its own purposes.

21.

Permission was refused on all eight grounds by the Chamber President of the First-tier Tribunal, Upper Tribunal Judge O’Connor. However, Upper Tribunal Judge Wikeley granted Ms Forstater permission to appeal on grounds 1, 3 and 4, but refused permission to appeal on the five other grounds of appeal. Judge Wikeley (rightly in my view) characterised the three grounds on which he gave permission to appeal as all “amounting to a challenge to the First-tier Tribunal’s findings of fact and reasoning in paragraphs [31] and [32] of its decision”. That is a view which Ms Forstater shares: see paragraph 2 of appellant’s reply of 6 January 2022. Judge Wikeley went on to comment:

“it is conceivable that in the absence of any explanation as to the nature of the transition from the JSB to the JC that “the only available inference … was that the body responsible for the training of judges had changed its name” (as it is put in ground 4). Indeed, whether or not these grounds of appeal have real merit there is in any event a public interest in ensuring that the status of the JC as a public authority subject to FOIA (or not, as the case may be) is clarified at this level.”

22.

With the consent of the parties, the remaining five grounds on which permission was being sought were the subject of a rolled-up hearing at the same time as the appeal hearing on the three grounds for which Ms Forstater had permission to appeal. By ‘rolled-up’ I mean that argument could be put forward on why permission to appeal should be given (or refused) on any of the other five grounds of appeal and why the appeal should be allowed (or refused) on any of those grounds. However, grounds 2 and 6 were not pursued by Ms Forstater before me. Ms Cunningham also told me that Ms Fostater was no longer relying on the Inco Europe line of argument she had made to the FTT: see paragraphs 33-35 of the FTT’s decision.