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Ground 1
Ground 1
The Information Commissioner’s first ground of appeal is a reasons challenge, premised not so much on the alleged inadequacy of reasons as on their complete absence. Thus, Mr Metcalfe points out that the FTT Judge provided no reasons at all for her amended bundles direction of 29 November 2024 and submits that amounted to a plain error of law. Mr Metcalfe accepts that ordinarily reasons would not be necessary for a case management direction but argues that in the particular circumstances of this case reasons were required, not least given the detailed submissions made by the parties, indicating it was a matter of some importance to them. Mr Knight candidly acknowledges the absence of reasons in the amended bundles direction but submits that it matters not in this case.
The starting point must be the legislative framework and in particular rules 5, 6 and 38 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976). Rule 5(3)(i) empowers the FTT to make a direction to “require a party to produce a bundle for a hearing”. So far, so good. Rule 6 then provides as follows:
Procedure for applying for and giving directions
6.—(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.
An application for a direction may be made—
by sending or delivering a written application to the Tribunal; or
orally during the course of a hearing.
An application for a direction must include the reason for making that application.
Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction.
It is noteworthy that the requirement to give reasons in rule 6 is asymmetric – a party seeking a direction must include their reason(s) for doing so (rule 6(3)) whereas the FTT need only send written notice of the direction to the parties (rule 6(4)), with no requirement to provide the reason(s) for making that direction.
Rule 38 further provides as follows:
Decisions
38.—(1) The Tribunal may give a decision orally at a hearing.
Subject to rule 14(10) (prevention of disclosure or publication of documents and information), the Tribunal must provide to each party as soon as reasonably practicable after making a decision (other than a decision under Part 4) which finally disposes of all issues in the proceedings or of a preliminary issue dealt with following a direction under rule 5(3)(e)—
a decision notice stating the Tribunal's decision;
written reasons for the decision; and
notification of any right of appeal against the decision and the time within which, and manner in which, such right of appeal may be exercised.
The Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.
Thus, the requirement on a tribunal to give written reasons only applies to a decision “which finally disposes of all issues in the proceedings” (rule 38(2)). By its very definition this necessarily excludes a mundane case management direction that apportions responsibility for the preparation of a hearing bundle. In cases not covered by rule 38(2) the FTT has a discretion to provide written reasons (rule 38(3)).
The default position, therefore, is that there is no categorical expectation in the statutory scheme governing the FTT’s procedural rules that reasons need to be given for a tribunal’s case management direction.
The question then is whether there is any support for the Information Commissioner’s submissions in the case law. In that regard Mr Metcalfe relied heavily upon the Court of Appeal’s decision in R (LND1 & Ors) v Secretary of State for the Home Department [2024] EWCA Civ 278, and, in particular, the following passage (at [67]) from the judgment of Underhill LJ (with Mr Metcalfe’s emphasis added):
It is not necessary, nor appropriate, in this case to consider the precise content of the duty to give reasons. It is sufficient to say that, in general, the reasons must adequately address the principal points relied upon by the applicant. The reasons may be brief and what will be adequate will generally depend upon the content of the decision and the points raised by the applicant.
Mr Metcalfe rightly recognised that the subject matter of R (LND1 & Ors) and the present case were poles apart, as the Court of Appeal was concerned with the reasons given by the Home Office for a decision about whether an Afghan judge qualified for relocation in the UK. It was, quite literally, potentially a matter of life and death. The case was also a judicial review challenge to an administrative decision on whether to admit the applicant to the UK. That very different context means that the Court’s decision is of very limited assistance in the current proceedings.
Much more in point is the Court of Appeal’s decision in Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33, where a social security tribunal’s refusal to grant an adjournment was in issue. Laws LJ observed as follows as to the limitations of such a challenge (at [12]):
If it is clear that the adjournment was in fact refused for good reason, but the expression of that good reason was insufficient and failed to fulfil applicable legal standards, that failure would not, in my judgment, of itself necessarily justify this court in allowing the appeal. The legal defect constituted by the tribunal's failure to express sufficient reasons would, or at least might, be remedied by this court declaring that the reasons given were in truth legally insufficient, even though the appeal were dismissed.
Laws LJ also held as follows (at [25]):
the extent or the depth of a duty to give reasons is heavily dependent on the context in which the duty arises. For my part I consider is clear that, in the ordinary way and as a matter of practical good sense, any obligation to give reasons for an ancillary or procedural act, such as the grant or refusal of an adjournment, will be relatively summary in nature, at least by contrast to the quality of reasons required for an outcome decision itself.
In addition, and relevantly, Laws LJ (at [29]) regarded it as:
… important to recognise that the brief reference given by the tribunal itself in the decision notice to the refusal to adjourn, though in one sense a statement which could be regarded as more of a conclusion than a reason, was addressed to a tutored audience.Everyone involved in the case knew the short summary of facts …
Thedecision in Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 was followed and applied in KP v Hertfordshire CC (SEN) [2010] UKUT 233 (AAC), where the position was summed up as follows (at paragraph 30):
There was no statutory duty on the tribunal to give reasons for its interlocutory decision on the parties’ respective applications. Instead, the tribunal had a discretion as to whether to give reasons. The exercise of that discretion is not governed by the Meek test, although the overriding objective in Rule 2 of the HESC Rules will be relevant. It may well be good judicial practice to give brief reasons for any interlocutory decision. This tribunal did just that. The submission that it erred in law in some way is simply unsustainable.
However, notwithstanding the absence of any general duty to give reasons for decisions that do not finally dispose of all issues in the proceedings, reasons may still be required for an interlocutory decision that would appear “aberrant” without reasons: R (Birmingham CC) v Birmingham Crown Court [2009] EWHC 3329 (Admin); [2010] 1 WLR 1287. Conversely, even where no reasons have been given (as here), where the matter was an interlocutory one of a case management kind and the outcome was not apparently “aberrant”, it may be held that any error was not material such as to justify allowing an appeal. Furthermore, I agree with Mr Knight that an interlocutory decision that is adjudged to be “aberrant” is equivalent to saying that it is “plainly wrong”. To that extent the Information Commissioner’s reasons challenge adds nothing to the mix.
True, the FTT Judge did not provide a specific reason for her amended bundles direction, but (as noted above) she was under no statutory obligation to provide reasons. The FTT had been provided with competing submissions from the Information Commissioner and the DHSC respectively and was faced with a binary choice as regards preparation of the open bundle. There was no potential third way. As such, the FTT Judge was dealing with what Laws LJ described as a “tutored audience”, who understood where the battle lines had been drawn. The necessary and indeed inevitable inference was that the Department’s submissions had been preferred for the reasons given by the DHSC. As the Upper Tribunal three-judge panel noted in Information Commissioner v Experian [2024] UKUT 105 (AAC):
The reasons of the tribunal below must be considered as a whole. Furthermore, the appellate court should not limit itself to what is explicitly shown on the face of the decision; it should also have regard to that which is implicit in the decision. R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) was cited by Floyd LJ in UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] as explaining that the issues which a tribunal decides and the basis on which the tribunal reaches its decision may be set out directly or by inference.
Moreover, if the absence of explicit reasons for the amended bundles direction represented a failure and an error of law on the part of the FTT – and, for the reasons above, I find that it did not – then any such failure and error was amply cured by the FTT’s review decision of 2 January 2025, to which it is permissible to have regard (see Greenwich Millennium Village Ltd v Essex Services Group Plc & Ors [2014] EWCA Civ 960; [2014] 1 WLR 3517 at [7]).
In all those circumstances I do not need to consider the significance, if any, of the reasons given by the same FTT Judge for the bundles direction in the parallel proceedings in Cabinet Office v Information Commissioner (FTT reference FT/EA/2024/0136; UT reference UA-2025-000159-GIA).
It follows that Ground 1 is also not arguable.