[2025] UKUT 319 (AAC)

In Doorstep Dispensaree Ltd v Information Commissioner [2024] EWCA Civ 1515 (“Doorstep Dispensaree”), the Court of Appeal addressed where the burden of proof lies when someone on whom the ICO has imposed a penalty under section 155 of the DPA 2018, appeals against it. Counsel for Doorstep Dispensaree argued that while the DPA 2018 does not expressly provide for the ICO to bear the burden of proof on an appeal under section 163 of the Act, this was implicit. He argued that where the imposition of a penalty is in issue, it is for the body imposing that penalty to justify it (see [38] of Doorstep Dispensaree).

Newey LJ, with whom the rest of the Court of Appeal agreed, rejected this proposition and held that the burden of proof lies on the appellant in an appeal against the imposition of a penalty under section 155 of the DPA 2018. He acknowledged that before raising a penalty notice, the ICO must be satisfied that one of the conditions in section 155(1)(a) and (b) of the DPA 2018 is met and that it is appropriate to require the person to pay the penalty. Newey LJ decided, however, that where the recipient of a penalty notice appealed under section 163, it was incumbent on him to persuade the FTT that the penalty should not stand.

At [39], Newey LJ placed reliance on the general principle enunciated by Carnwath LJ in Khan v HM Revenue and Customs [2006] EWCA Civ 89 (“Khan”), that “…where a state gives a right of appeal against enforcement action taken by a public authority, the burden of establishing the grounds of appeal lies on the person appealing” and the “ordinary presumption…is that it is for the appellant to prove his case” (see [71] and [73] of Khan). Newey LJ indicated that far from suggesting that this general principle was limited to the refusal of benefits rather than the imposition of penalties, Carnwath LJ had explained that it applied to enforcement notices in respect of breaches of planning control and that this approach represented the correct starting point in relation to an appeal against a civil penalty.

Newey LJ noted at [39] that in Doorstep Dispensaree, as in Khan, the appellant, rather than the ICO, knew or was in a position to know, the true facts. Newey LJ also confirmed that the fact that the FTT considers matters “afresh” on an appeal under section 163 of the DPA 2018 was not inconsistent with the appellant bearing the burden of proof. He concluded that the burden of proof on an appeal against a penalty notice lay throughout on the appellant (see [40] and [41] of the judgment).

Having concluded that in a full merits review the FTT will normally be able to decide whether a penalty is justified without resorting to the burden of proof, Newey LJ confirmed that where that is not the case, the burden is on the appellant, not the ICO (see [42] of the judgment).