[2023] UKUT 221 (AAC)

Grounds 2 and 3: General principles on findings and reasons

Grounds 2 and 3 are both principally concerned with the adequacy of the FTT’s findings of fact and reasons. It is helpful therefore to preface my consideration of those grounds with a summary of the established principles as to the approach to be taken by the Upper Tribunal in such appeals

In R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48, at [25], Lord Hope said:

“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.”

In Re F (Children) [2016] EWCA Civ 546 Sir James Munby P explained the position as follows:

“22 Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”

23 The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.”

52.These principles have been applied by the Upper Tribunal in a number of information rights cases. I was referred to one, UCAS v IC & Lord Lucas [2014] UKUT 557 (AAC), in which at [59] the Upper Tribunal said that “it is unrealistic to expect a Tribunal to set out every twist and turn in its assessment of the evidence and its consequential reasoning”. Applying Jones, the question was “whether the Tribunal has done enough to show that it has applied the correct legal test and in broad terms explained its decision”.

Moreover, the FTT is an experienced specialist jurisdiction which routinely considers certain questions under FOIA, including under sections 14 and 40. As Upper Tribunal Judge Wikeley commented in Department for Work and Pensions v IC & Zola [2014] UKUT 334 (AAC) at [27]:

“… the relevant standard is well known to the Tribunal and to the parties, being part of the normal currency of information rights litigation, and so the Tribunal did not need to articulate all its dimensions fully….”

To similar effect on appeal ([2016] EWCA Civ 758 at [34]), Lloyd Jones LJ said

“Given such expertise in a Tribunal, it is entirely understandable that a reviewing court or Tribunal will be slow to interfere with its findings and evaluation of facts in areas where that expertise has a bearing. This may be regarded not so much as requiring that a different, enhanced standard must be met as an acknowledgement of the reality that an expert Tribunal can normally be expected to apply its expertise in the course of its analysis of facts.”