[2025] UKUT 177 (AAC)

The Information Commissioner’s second (but, in reality, his primary) ground of appeal is that the FTT’s direction that the Information Commissioner should prepare the open bundle for the substantive appeal hearing was both unreasonable and contrary to the overriding objective. Mr Metcalfe accordingly launched a two-pronged attack on the bundles direction.

First, and in terms of the reasonableness or, as he characterised it, the unreasonableness of the FTT’s bundles direction, Mr Metcalfe began with a consideration of the Bundles Guide. He noted that the Bundles Guide gave no explanation for its assertion in Part 3 that the usual expectation was that the regulator would be the party that prepares the bundle. However, he also observed that paragraph 2.1 of the Bundles Guide advised litigants in person that the regulator would normally be expected to prepare the bundle, being a public body and usually represented by legal professionals. By the same token, Mr Metcalfe submitted, the DHSC should be required to prepare the bundle in the instant case. He advanced four principal arguments in support of that submission. The first was that the DHSC was a well-resourced public body represented by legal professionals. The second was that the Department had access to all the relevant documents. The third was that it was a matter of choice for the DHSC whether to appeal to the FTT, whereas the Information Commissioner had no choice but to be a party. The fourth was that if the DHSC had instituted proceedings for judicial review then the burden would have been on the Department to prepare the bundles. However, these arguments are not persuasive for the following reasons.

As to the first point, this argument assumes that the explanatory consideration in paragraph 2.1 of the Bundles Guide necessarily underpins the usual expectation in Part 3 that the regulator prepares the bundles. However, Part 2 is confined to giving guidance to litigants in person, whereas Part 3 applies across the piece of all GRC jurisdictions. Furthermore, it lays down a clear delineation of the default (and usual but not immutable) position of the regulator’s responsibility for bundle preparation.

As to the second matter, this is simply not correct – as Mr Knight put it, no one party has hegemonic access to all the documents. In practice in FOIA cases there may be a wealth of correspondence between the requester and the ICO which the public authority will see for the first time in the hearing bundle.

As to the third issue, it is undoubtedly true that the Information Commissioner is a conscript rather than a volunteer in every FOIA appeal before the FTT. That applies whether the appellant is the requester or the public authority. However, that truth simply reflects the fact that the Information Commissioner has a recognised role as in effect the statutory guardian of FOIA (see Browning v IC and Department for Business, Innovation and Skills [2014] EWCA Civ 1050; [2014] 1 WLR 3848 at [33] and Greenwood v IC and the Commissioner of the Police for the Metropolis [2025] UKUT 76 (AAC) at paragraph 88).

As to the fourth argument, the purported analogy with the hypothetical of the DHSC bringing judicial review proceedings under Part 54 CPR does not take the present application anywhere. The FTT jurisdiction is consciously different from Part 54 CPR proceedings, and in any event in the latter arena the Department would be at risk of all costs and not just the cost of producing the bundle.

In that context it is important not to lose sight of the nature of the Information Commissioner’s challenge in these proceedings. This application is not an application for permission to apply for judicial review of the GRC’s Bundles Guide and should not be seen through that prism. Judicial review was an option open to the Information Commissioner but represents a path not taken. In the absence of any legal challenge to the Bundles Guide, the Upper Tribunal is faced now with a much narrower question – is the bundles direction in this case “unjustifiable” (per Lord Neuberger) in the sense of being “plainly wrong” (per Chadwick LJ), bearing in mind the high threshold set by Royal & Sun Alliance Insurance plc for any challenge to a case management direction? It follows from the analysis above that I do not regard it as arguable that the FTT’s bundles direction was Wednesbury unreasonable.

Secondly, it was also submitted on behalf of the Information Commissioner in support of that challenge that the bundles direction was plainly contrary to the overriding objective. Rule 2 familiarly provides as follows:

The Information Commissioner’s submission was that in making the bundles direction the FTT had in effect disregarded the obligation to take account of the “resources of the parties” in rule 2(2)(a). There are at least three difficulties with this submission. The first is that the logical end-point of this submission is that the FTT should have considered the comparative budgets of the parties, a task which is completely unrealistic in practice. The second is that although consideration of resources is in very general terms relevant to the overriding objective, and underpins paragraph 2.1 of the Bundles Guide, it provides no real assistance in differentiating between the situation of the Information Commissioner and a central government department, each of which will face competing calls on their doubtless limited budgets to defend their decisions in litigation. The third is that in any event rule 2 mandates a multi-factorial assessment of competing considerations, not all of which may point in the same direction. The balancing of those considerations when making case management directions is quintessentially a matter for the good judgement of the tribunal charged with the conduct of the proceedings.

It follows that, on whichever basis it is put (whether unreasonableness or breach of the overriding objective), Ground 2 is not arguable.