[2025] UKUT 319 (AAC)

Ground 4 argues that the FTT erred in failing to consider whether the ICO had jurisdiction in relation to Clearview’s activities during the UK Test Phase. Mr Susskind pointed out that, contrary to what the FTT said, the MPN relied on the UK Test Phase, and he said the ICO never abandoned the claim to jurisdiction on that basis in the proceedings before the FTT. He took us to the transcript of Mr Pitt-Payne’s cross-examination of Mr Mulcaire in the FTT proceedings, which did indeed refer to the UK Test Phase.

However, we note that the ICO did not pursue the case on jurisdiction arising from the UK Test Phase in any of the submissions that he made before the FTT. The ICO did not refer to this issue at all in his Re-Amended Response to Clearview’s Statement of Facts and Grounds. That document runs to 77 pages and appears to provide a comprehensive response to Clearview’s appeal grounds, including 25 pages dealing with issues relating to jurisdiction. Nor was it addressed in Mr Pitt-Payne’s skeleton argument for the hearing before the FTT or in his oral submissions to the FTT.

In these circumstances and given the breadth and complexity of the contentions that were expressly ventilated below, although the point was not formally abandoned, we do not consider that the FTT’s failure to appreciate that the ICO still relied on the UK Test Phase, or to exercise its inquisitorial jurisdiction to consider the issue, can amount to an error of law. We therefore dismiss Ground 4.