[2024] UKUT 127 (AAC)

The McKenna strike out cases that I have seen all involve errors of the merits. The concerns that I had were well established.

However, there were more fundamental issues that can be only be seen from reading the files:

There is a tendency for Ms McKenna to impute a position on behalf of a party which is not consistent with what a party said. In other words, the strike outs were on a false basis.

The Section 8 ‘strike out’ warnings were invalid, because they were made by a staff member, rather than a Judge or Registrar.

In any event, the Section 8 strike out rulings did not do anything than say ‘please respond’ to the Information Commissioner’s application. They did not involve any form of judicial consideration of the merits of the Commissioner’ case. This is not a proper implementation of the Rule 8 procedure, especially when considered with respect to the ‘overriding objective’.

There is a lack of natural justice, in that the applicants have (wrongly) assumed their full file is in front of the Tribunal and have acted accordingly. In other words, the whole strike out process proceeded based on a false assumption.

The application is to be found at paragraph 12 of a document in which the abovementioned Tribunal case references constitute part of the heading. It is unclear whether Dr Kirkham’s application relate only to the appeals identified in the heading (“the eleven matters”), or all appeals which fall within the scope of the italicised words in paragraph 1 above. I treat the application as relating to the former.

I have not invited representations from any of the parties in the eleven matters because in my view would be disproportionate and unnecessary in all the circumstances.

Insofar as it is intended that the application relates to decisions in appeals in addition to the eleven matters, it is refused. It is wholly disproportionate for the Tribunal, of its own volition, to search through all decisions made by Judge McKenna to identify whether any of them fall within scope. Judge McKenna’s decisions are a matter of public record. The burden of identifying decisions which Dr Kirkham seeks to make an application in relation to, falls on Dr Kirkham, as does the task of identifying in each case the relevant matters said to engage rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“2009 Rules”).

Turning to the eleven matters referred to in the heading of the document containing the application, it must first be observed that Dr Kirkham was not a party to any of those eleven matters. It is also the case that Judge McKenna was the judge who considered and determined each of the eleven matters. These same eleven matters are also the subject of an application by Dr Kirkham for disclosure of the documents that were before the Judge McKenna when she considered and determined the appeals (“the disclosure applications”). The disclosure applications are pending before the Tribunal.

The Tribunal has jurisdiction to set aside a decision or part of a decision which disposes of proceedings, if the conditions identified in rule 41 of the 2009 Rules are met. It can plainly do so of its own volition or upon application. Rule 41 is silent as to whether such an application can be made by a person who was not a party to the proceedings, but I observe that rule 41(3) specifically provides for procedural obligations on parties if they are seeking for a decision to be set aside. It makes no reference to third parties. Nevertheless, I proceed on the basis that there is no jurisdictional bar to me considering Dr Kirkham’s applications, although I do not specifically determine that point. Nor do I determine whether Dr Kirkham is subject to the time limitations identified in Rule 41.

I conclude that none of the conditions in rule 41(2) are met.

There is no evidence to support a contention that any of the requirements of rule 41(2)(a)-(c) are met, and upon analysis of Dr Kirkham’s reasons for making the applications I do not accept that “there has been some other procedural irregularity in the proceedings” [(r.41(2)(d)].

Points 11a and 11c of the application, if made out which I do not accept they are, are more properly the subject of an application by an aggrieved party for permission to appeal to the Upper Tribunal. Whilst these points allege error in Judge McKenna’s decision, they are not capable of constituting a procedural irregularity of the type envisaged by rule 41(2)(d).

Point 11b of Dr Kirkham’s application has no merit. Rule 8(4) of the 2009 Rules requires that “the Tribunal may not strike out the whole or part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed strike out”. In each of the matters the appellant was given the opportunity to make representations in relation to the proposed strike out. Rule 8 does not dictate that the notification providing such opportunity be drawn in the hand of a judge or registrar, nor does any other provision of the 2009 Rules or the Tribunals, Courts and Enforcement Act 2007 provide for such. The procedural requirement is for the provision of an opportunity to make representations, that procedural requirement has been met. In any event, if I am wrong in this regard I observe that by rule 7(1) “an irregularity resulting from a failure to comply with any provision of the Rules …does not of itself render void the proceedings or any step in the proceedings.”

Furthermore, even if capable of constituting procedural irregularity, and I conclude that it is not, the matters raised in point 11d of Dr Kirkham’s application are entirely unsupported by evidence.

For all these reasons I do not accept that the requirements of rule 41(1)(b) are made out.

If I am wrong in my conclusions above I, nevertheless, conclude, having considered all the circumstances, that it is not in the interests of justice to set any of the above referenced decisions in the eleven matters aside upon the application of a third party.

The 2009 Rules provide remedies for aggrieved parties. Such a party can, for example, make an application to reinstate an appeal which has been struck out (rule 8(5)), make an application for permission to appeal (rule 42) or make an application to set aside Judge McKenna’s decision (rule 41). Indeed, a number of the parties in the eleven matters have made an application for permission to appeal. The consequences of Judge McKenna’s decisions bear directly on the parties, as would the consequences of an accession to Dr Kirkham’s applications. Dr Kirkham is not acting on behalf of any the parties and, other than a tangentially as a consequence of the fact that any information that might hypothetically be released by the public authority would be available to the world at large including Dr Kirkham, he is entirely unaffected by the outcome of the proceedings.