[2024] UKUT 127 (AAC)

Dr Kirkham placed most emphasis in his submissions on his application for permission to appeal. He acknowledged that his application for permission to apply for judicial review was very much a fall-back position. As to this, his principal submission, drawing on R (on the application of Good Law Project Ltd v Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), was that standing was not properly a matter for the permission stage at all but rather should be addressed at a later stage in the proceedings. Dr Kirkham further argued that the approach to standing was typically liberal and that what he characterised as “the general dysfunction” (his words) of the FTT (General Regulatory Chamber) was a matter of “considerable public interest”. He further contended that the Upper Tribunal had jurisdiction to decide his application for judicial review.

Mr Davidson submitted that there were three compelling reasons why Dr Kirkham’s application for permission to apply for judicial review should be refused. The first and primary reason was that as a matter of principle permission should not be granted where there was an adequate alternative remedy, here in the form of a statutory right of appeal under the 2007 Act. The second reason was that Dr Kirkham lacked standing, in the sense of a sufficient interest, to apply for a set aside of any of the 11 specified FTT strike out rulings. The third reason, which Mr Davidson argued he need not rely on given the strength of his first two reasons, was that it was in any event questionable whether Condition 3 in section 18 of the 2007 Act was met so as to confer jurisdiction on the Upper Tribunal.