[2024] UKUT 127 (AAC)

PROPOSAL TO STRIKE OUT

APPLICATION FOR PERMISSION TO APPEAL

I propose to strike out this application for permission to appeal, and without holding an oral hearing, as I consider it has no reasonable prospects of success (under rule 8(3)(c)). However, the Applicant may make representations on this proposal in accordance with the Directions at the end of the Observations below.

JUDGE’S OBSERVATIONS

This application for permission to appeal to the Upper Tribunal made on Form UT13 (and associated documentation) goes under the case reference UA-2023-001057-GIA. For the reasons that follow, I am proposing that this application should be struck out, without an oral hearing, on the basis that it has no reasonable prospects of success. I am not at present satisfied that scarce judicial resource should be devoted to holding an oral hearing of this application for permission to appeal. For the record, there is a parallel application for permission to apply for judicial review being dealt with under case reference UA-2023-001058-JR, subject to separate case management directions also of today’s date.

The Applicant’s application for permission to appeal is stated to relate to a First-tier Tribunal (FTT) decision of 19 May 2023. This appears to be the date that the FTT refusal of permission to appeal ruling was issued to the Applicant (a ruling dated 15 May 2023). As such, the challenge is effectively to the FTT’s original decision dated 18 April 2023. This was Judge O’Connor CP’s decision on the Applicant’s application dated 9 April 2023 to set aside certain FTT decisions under rule 41 of the Tribunal Procedure (FTT) (GRC) Rules 2009 (SI 2009/1976).

Judge O’Connor appears to have proceeded on the basis or assumption that the Applicant had standing to bring the application under rule 41, even though he was not a party to any of the 11 cases concerned. Judge O’Connor dealt with the jurisdictional point as follows (at para 6):

In his subsequent ruling refusing permission to appeal, Judge O’Connor expressly stated that he was not deciding the jurisdictional point (para 3). Be that as it may, and as regards invoking rule 41, it is not the case that the FTT can “plainly do so of its own volition”. The weight of authority is that the FTT does not have power to act on its own initiative under rule 41 – see MA v SSWP (PIP) [2020] UKUT 172 (AAC). Judge Poynter expressed a minority dissenting view, without giving reasons, in KH (dec’d) (by AMH) v SSWP (IIDB) [2021] UKUT 189 (AAC), but even so recognised that the majority view was binding on the FTT. However, any error of law on the part of this FTT on this particular point was not material given that the FTT itself did not purport to initiate action under rule 41.

Rather, the question was whether Dr Kirkham had standing to bring the rule 41 set aside application(s). Rule 41 provides as follows:

Rule 1(3) defines “party” as follows:

There is no suggestion in rule 41 (or indeed elsewhere in the 2009 Rules) that a person who is not a party can make an application under the rule for a decision to be set aside. Indeed, it would be extremely surprising if that were the case, not least as an application for a set aside might well cut across other post-decision remedies being pursued by the actual parties to the case. Moreover, and as Judge O’Connor observed, a party can only apply for a set aside if they make a written application and make it within 28 days (subject to any extension of time under rule 5) – see rule 41(3). If a non-party could indeed make such a set aside application, there is no requirement that they make the application in writing and no requirement that they make the application within 28 days. It cannot have been contemplated that a non-party should have the right to apply for a set aside on more generous and indeed open-ended terms than the conditions applying to the actual parties to the proceedings themselves.

In the instant case it is not in dispute that Dr Kirkham was not a party (as defined by rule 1(3)) to any of the 11 sets of proceedings in question. As such on the face of it he had no standing to make an application under rule 41 (different considerations may apply to the parallel application for permission to apply for judicial review). On that basis Judge O’Connor CP should simply have ruled that the FTT did not have jurisdiction to consider the substance of Dr Kirkham’s rule 41 application in relation to the 11 cases. On the face of it, the jurisdictional point is fatal to Dr Kirkham’s case. While the FTT has made a decision, and so to that extent at least the Upper Tribunal has jurisdiction, the Upper Tribunal cannot ignore the fact that the FTT did not seemingly have jurisdiction to make a substantive rule 41 determination. Accordingly, it appears the proposed appeal has no reasonable prospect of success. For present purposes I put to one side the argument that Dr Kirkham’s application to the Upper Tribunal for permission to appeal should not be admitted as he is not a “party” within the meaning of that term in TCEA 2007 section 11(2).

Court and tribunal time is a precious resource. For the reasons above, I can see no proper basis on which this application for permission to appeal can succeed. I am therefore considering striking out this application – without holding an oral hearing – under rule 8(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). This would be on the basis that it has no reasonable prospects of success. I am considering that course of action in the light of my provisional views as set out above as to the jurisdictional problem with the original rule 41 application.

In making this proposal, I recognise that striking out an application without an oral hearing is a draconian step. I also bear in mind, by reference to Court of Appeal authorities, that the strike out power under rule 8 must be used for legitimate case management purposes, not for some other purpose. It should also not be exercised unless the tribunal has considered whether its other case management powers could be used to arrive at a more just result. Finally, since it is a method of “final disposal”, it should only be used as a “last resort”. Taking those matters into account, I still provisionally conclude that this application has no reasonable prospects of success.

The Applicant may now make representations on the proposal to strike out this application without a hearing.