[2024] UKUT 127 (AAC)

As intimated earlier, Dr Kirkham’s submissions, both on paper and orally at the remote CVP hearing, roamed far and wide. However, his primary and overarching argument was that both the Upper Tribunal and the Information Commissioner had fundamentally misunderstood the nature of his challenge. It was, he said, a mistake to characterise his challenge as being to the FTT’s strike out decisions. Rather, he argued, he had made the application in question within the context of his own open justice proceedings for the disclosure of relevant documents. Dr Kirkham further contended that Judge O’Connor’s decision was a case management decision within his open justice proceedings: “In effect, Judge O’Connor should have given directions on how the interrelated issues (namely the likely set aside or permission to appeal applications made by parties) were to be progressed. He failed to deal with the issue at all. That was an error of law and one which I have jurisdiction to challenge.” If he was wrong about the essential nature of the FTT proceedings in question, Dr Kirkham further submitted that the approach of the Upper Tribunal’s strike out warning to the construction of rule 41 was mistaken. In particular, rule 41 only applied to parties and did not say that other people cannot apply, and no such restriction should be read in. The cases on whether the FTT had a power to set aside of its own motion had been decided in the Social Entitlement Chamber and different policy considerations applied in the arena of information rights.

Mr Davidson’s submissions on behalf of the Information Commissioner were shorter and to the point. In summary, his argument proceeded by way of four stages. First, Dr Kirkham had made an application for certain FTT decisions to be set aside. Second, Judge O’Connor had refused that application. Third, the Upper Tribunal’s strike out warning had identified a jurisdictional point which would have prevented the FTT from considering the set aside application in any event. Fourth, the jurisdictional point relating to rule 41 was sound, meaning that in any event any onward appeal to the Upper Tribunal was bound to fail.