[2024] UKUT 287 (AAC)

Upper Tribunal Judge Wright’s order granting permission to appeal said:

“I give the DSG Retail Limited permission to appeal. The grant of permission to appeal is limited to grounds one and three as identified and explained below.”

Paragraph 1 of his accompanying Reasons included the following:

“Permission to appeal is given because I consider that it is arguable with a realistic prospect of success that First-tier Tribunal erred in law in the decision it made on 5 July 2022 on the grounds set out below. These are grounds one and three (but as identified and explained below – see, for example, paragraphs 23 and 37 below).[…]”

Judge Wright discussed Ground 1 between paragraphs 15 – 21. At paragraph 15 he described the question in terms that reflect the issue that we have referred to as Issue 1. He then said:

“22.

…I have concluded that DSG’s argument here is not unarguable. I therefore give permission to appeal on ground 1. The ground should be the subject of full(er) argument and would benefit from a binding decision of the Upper Tribunal on an appeal.

23.

Ground 1 also has a sub-ground within it or associated with it, on which I give DSG permission to appeal as well. The argument here, as I understood it, is that even if the First-tier Tribunal was right as a matter of law about in whose hands the information must constitute personal data for the purposes of the DPA 1998, the late basis on which it did so meant that DSG was not in a position to properly address this case against it…It appears conceded by the Information Commissioner that at no stage in the First-tier Tribunal proceedings was he arguing for the approach the First-tier Tribunal settled on in its decision in relation to the PANs.

24.

DSG’s argument under this associated aspect of ground 1 is that it had no, or no sufficient opportunity to put before the First-tier Tribunal (a) evidence about the systems it had in place at the time of the attack to protect the PANs alone from exfiltration, and/or (b)…evidence about the other information it held which when linked to the PAN could identify a living individual, and how that other information was protected.” [Emphasis in the original.]

A dispute arose subsequently as to the scope of the grant of permission to appeal in respect of Ground 1. By letter dated 29 November 2023, the ICO sought clarification. The ICO’s position was that the grant of permission was limited to what we have referred to as Issues 1 and 3 (the latter was Ground 1(b) in the application for permission). DSG disputed this proposition, contending in a letter dated 6 December 2023 that the grant included what we have identified as Issue 2, on the basis that this was set out at sub-paragraphs 19(3) and (4) as part of Ground 1 in the grounds of appeal.

On 12 December 2023 Judge Wright provided a ruling on the request for clarification. At paragraph 7 he indicated that, “[t]his ultimately may be a matter for the three-judge panel to determine in hearing and deciding the appeal”. However, he included the following observations:

“12.

I plainly intended to give permission to appeal on the ‘issue of principle’ (and on Ground 1(b)). Whether the first ground of appeal was otherwise limited to that ‘issue of principle’ (and Ground 1(b)) may, trying to read the grant of permission as objectively as I can, require the word “here”…to do some heavy lifting.

13.

Second, the grant of permission of appeal, save for the words “as identified and explained below” did not expressly limit the grant of permission to appeal under the first ground of appeal and did not expressly exclude sub-paragraphs (3) and (4) of paragraph 19 in DSG’s grounds of appeal.

14.

Third, the arguments which fall properly within the scope of the grant of permission to appeal in respect of the first ground of appeal cannot involve arguments for which permission has been refused under the second, fourth, fifth and sixth grounds of appeal.” [Emphasis in the original.]