[2025] UKUT 99 (AAC)

The First-tier Tribunal refused the appellant’s application to amend to include as a ground of appeal that ONS was not entitled to rely on section 14(1) in order to refuse disclosure in relation to DPRs 189 and 190 for the reasons it gave at [8]-[10] of the decision. (At least, I assume that these were the reasons of the whole panel, although I note that this part of the decision is drafted as if the judge took the amendment decision alone. Once a Tribunal panel is seized of a case, case management decisions should normally also be for the panel: cf Jones v Corbin (UKEAT/0504/10).)

The First-tier Tribunal considered the application was being made on the day of the hearing, orally, only in response to the First-tier Tribunal’s questions and “in effect, only by implication”. The First-tier Tribunal further took into account the time it had taken to reach a final hearing, the basis on which it considered the other parties had responded to and prepared the case and “the amount of tribunal time that had been spent reading the 1200-page bundle, over 100 pages of supplementary evidence and listening to audio recordings and watching videos in preparation for the hearing”. It also took into account the balance of prejudice, recognising that “Mr Boswell would be deprived of the chance of formally challenging the decision notice in relation to the other requests and the fact that he was a litigant in person”. It nonetheless decided to refuse the amendment.

A First-tier Tribunal enjoys a wide discretion in relation to case management decisions such as this and the Upper Tribunal will not interfere unless it is clear the First-tier Tribunal has made an error of law. That includes leaving out of account any obviously relevant factor, or taking into account any irrelevant factor: see Vaughan v Modality Partnership [2021] ICR 535at [10] per HHJ Taylor (a decision in the employment sphere that contains a helpful discussion of the principles, most of which are equally applicable to the General Regulatory Chamber). HHJ Taylor emphasised the focus should be the balance of prejudice (ibid at [12]-[18]) and that this requires a focus on the “real practical consequences of allowing or refusing the amendment” (ibid at [21]).

In this case, it seems to me that the First-tier Tribunal’s decision to refuse the amendment application was inevitably ‘infected’ by its prior errors in recognising the scope of the appeal. These errors meant that the First-tier Tribunal failed properly to consider the extent to which the amended grounds of appeal would have expanded the scope of the appeal, given the extensive nature of the arguments on vexatiousness already before the Tribunal. Indeed, the First-tier Tribunal does not seem to have analysed the extent to which considering DPR 189 and 190 would have expanded the actual arguments or evidence to be considered on the appeal.

A further relevant factor that needed to be taken into account by the First-tier Tribunal in my judgment was that the appellant’s reply to the IC’s response to the appeal had included arguments about DPR 189 and 190. If, and to the extent that, an opportunity had been missed by the First-tier Tribunal at an earlier case management stage to identify that the appellant needed to be alerted to the need to make an amendment application if he wished to run those arguments, that was a relevant factor for the Tribunal to consider whether it would be fair and just to allow the amendment. Likewise, this was relevant to the balance of prejudice in this case. Rule 2 requires the parties to co-operate with the Tribunal to further the overriding objective. If a (represented) respondent (and especially a regulator such as the IC) sees that a litigant in person is seeking to raise arguments in proceedings that would require an amendment application, the respondent may (depending on the circumstances) reasonably be expected to alert the litigant and the Tribunal to the issue. If he fails to do so, and as a result the need for an amendment only becomes apparent at the hearing, that is also a relevant factor for the Tribunal to take into account, and one that may point towards allowing the amendment.

I therefore conclude that the First-tier Tribunal’s decision on the amendment application also involved an error of law.