[2024] UKUT 127 (AAC)

Dr Kirkham’s characterisation as to the nature of his challenge to Judge O’Connor’s ruling is wholly misconceived. Dr Kirkham may well see his application as part and parcel of his open justice proceedings for disclosure of the documents in the appeals in question. However, saying that it is so does not make it so. Nor does labelling the application “In the Matter of Third Party Disclosure in the cases of (etc)” make it so. It is the function of the court or tribunal concerned to identify the true nature of the application before it. In this case, and in any event, paragraph [12] of the application was quite clear that Dr Kirkham was applying, in his own words, “for all of the McKenna strike out rulings on Freedom of Information Act (2000) and/or Environmental Information Regulations (2003) cases where a case was struck out to be set aside.” It would have been positively perverse for Judge O’Connor to have construed Dr Kirkham’s request as anything other than an application for the decisions in the cases in question to be set aside. The Chamber President furthermore recognised the open justice proceedings as a discrete matter continuing on its own track (see paragraph 5 of his ruling).

Indeed, the only apparent uncertainty surrounding the nature of the application was whether it was referring just to the 11 cases specifically cited or whether it referred to all of Judge McKenna’s strike out rulings. Judge O’Connor decided it was the former, and for the reasons he gave in paragraph 4 of his decision. That explanation displays no arguable error of law. Indeed, any other approach would have been simply unworkable. If the application truly related to all Judge McKenna’s strike out rulings, what time limit if any was to apply? In a further ambitious submission at the oral hearing, Dr Kirkham suggested that Judge O’Connor should have directed that all the FTT’s strike out decisions (and not just those of Judge McKenna) should be identified and reviewed for error. The proposition only needs to be stated for its absurdity to be immediately apparent. Indeed, what price finality then?

Having correctly identified the nature and scope of the application before the FTT, Judge O’Connor proceeded to deal with the composite set aside application on its merits. Finding that it lacked any such merits, the application was dismissed. In doing so, Judge O’Connor in effect assumed for the purposes of argument that there was no jurisdictional bar to Dr Kirkham bringing such an application. My conclusion is that Judge O’Connor erred in law in taking that approach, but it was not a material error as the set aside application would have been refused in any event (albeit on the basis of lack of jurisdiction rather than lack of merits).

As to the jurisdictional bar and rule 41, Dr Kirkham advanced several arguments in support of his submission that the FTT in the General Regulatory Chamber has the power of its own motion to set aside one of its earlier decisions (notwithstanding MA v Secretary of State for Work and Pensions (PIP) [2020] UKUT 172 (AAC), a decision on the equivalent rule in the Social Entitlement Chamber). However, the point need not be resolved in the context of the present proceedings. The question at issue here is not whether the FTT can set aside of its own motion. Rather, the critical question is whether a non-party can make an application for a decision in other FTT proceedings to be set aside.

The short answer is that a non-party cannot do so, for the reasons identified in the strike out warning:

Dr Kirkham argued that there would be the risk of serious injustice in the information rights field if a non-party did not have such a right to apply for a FTT decision to be set aside. The answer to that is that under rule 9(3) a non-party always has the option of applying to be made a party (and so then making a set aside application), even after the event (see Razzaq v Charity Commission for England and Wales [2016] UKUT 546 (TCC)), and that is the appropriate way of protecting the interests of all concerned (see generally Information Commissioner v Spiers [2022] UKUT 93 (AAC)).

It follows that the FTT had no jurisdiction to entertain Dr Kirkham’s application to have the decisions in the 11 cited cases set aside. That being so, his proposed onward appeal to the Upper Tribunal has no reasonable prospects of success and must be struck out.