South Bucks
DC v Port (No 2) [2004] 1 WLR 1953 ) and we merely summarise some fundamental principles. 23. A n allegation that reasons a re inadequate cannot normally get off th e ground unless the appellant can show firstly that the mat ter to which the complaint relate s was raised in the proceed ings before the First Tier Tribunal as a substantial issue between the parties for the judge to determine . If the matter was not a substantial issue , or a “ principal important controversial issue ” , th en generally it cannot fall within the ambit of t he duty to give reasons in that case . There is no obligatio n on a Tribunal to deal with each and ever y point which has been raised in an appeal process . 24. But secondly, even if the matter relates to a substantial issue or principal controversial issue , it is essential for an a ppellant to show either that the judge has simply failed to resolve that dispute , in other words there is a gap in the reasoning on that point , or alternatively, that even though the issue has been dealt wit h, the reasoning is so unclear that the Tribunal is satisfied that it may well conceal a public law ground of challenge (see eg Save Britain’s Heritage at [1991] 1 WLR at page 168 ) . Likewise in the South Bucks DC case Lord Brown reiterated (at [2004] 1 WLR at page 1964 ) that an Appellant must show “a substantial doubt as to whether the d ecision-maker erred in law …”. But he then added “ such adverse inferences will not readily be drawn”. 25. In South Bucks
DC the House of Lords approved (at paragraph 33) the well-known statement by Sir Thomas Bingham MR that an issue as to whether the reasons for a decision were inadequate “is to be resolved … on a straightforward reading [of the decision] without excessive legali sm or exegetical sophistication.” The degree of particularity required for reasoning will depend entirely on the nature of the issues which have been raised by the parties for the judge to determine (paragraphs 28 and 36). 26. W e also note that at paragraph 35 Lord Brown said that the restatement of the relevant legal principles in South Bucks
DC sh ould “serve to focus the reader’s attention on the main considerations to have in mind when contemplating a reasons a challenge” and tend to discourage such challenges. 27. It follows from the authorities, and also from the duty of parties to help further the overriding objective and co-operate with the Upper Tribunal, that those drafting grounds of appeal (a) should not seek to argue that a particular consideration was not taken into account by the Tribunal when it can be seen from the decision read fairly and as a whole that it was (and the real disagreement is with the T ribunal’s assessment of the evidence or the merits) and (b) should not treat a reasons challenge as a “softer option” . When seeking permission to appeal an Appellant is obliged to demonstrate how the threshold of arguability is reached. 28. Similarly, judges in the First Tier Tribunal dealing w ith applications for permission to appeal should also have the principles governing reasons challenges well in mind when considering whether a ground of appeal alleging inadequacy of reasons is genuinely arguable. If the party raising a reasons challenge does not give proper particulars as to how those principles have been breached, by reference to relevant materials placed before the judge who dealt with the appeal , then ordinarily permission to appeal on that ground should be refused . 29. Unless practitioners considering grounds of appeal adhere to established legal requirements for demonstrating inadequate reasoning, and more generally on what may qualify as an error of law, there is a real likelihood of appeals to the Upper Tribuna l being pursued without any genuine legal merit. That would represent an improper use of the Tribunal’s limited resources and generally extend the time for which litigants would have to wait before their cases can be determined. 30. We should also refer to an other matter. In this case, and in others, we have observed the Secretary of State obtaining permission to appeal on grounds which are not pursued at the hearing in the Upper Tribunal , because it is eventually acknowledged that they are un arguable. Plainly an Appellant should review the arguability of grounds of appeal, for example in the light of any response from the Respondent to the appeal. An Appellant should not continue to pursue points which are not properly arguable. But where points are abandoned, there is a tendency then to seek to rely upon a skeleton argument, served only just before or even on the day of the hearing, so as to adva nce one or more new arguments not previously n otified either to the other party or to the Tribunal. Raisi ng new points in this manner plainly can cause unfairness to the opposing party and, if so, the Upper Tribunal may well refuse to allow the new point to be argued. That is even more likely to be the case where a new point could not fairly be dealt with without adjourning the hearing so that the opposing party has a proper opportunity to deal with it. The resources of this Tribunal are finite and have to be allocated fairly and proportionately as between all cases before it and not wasted. These are important considerations which those who draft, or advise upon, grounds of appeal must keep well in mind. 31. In this case it appears to us that th ose launching or pursuing the appeal can not have applied basic principles on what an Appellant needs to demonstrate in order to es tablish an error of law . That point is further illustrated by two additional criticisms now being advanced by the Respondent . The judge said in paragraph 47, “the children are integrated into the UK school system and the Respondent accepts that it is in the best interests of the two children that they both remain in the UK with the mother”. The Respondent complains that the judge’s use of the word “is” does not accord with paragraphs 64 and 65 of her decision letter in which it was said that it may b e in the best interests for the children to remain in the UK. But the Resp ondent’s attempt to argue a reasons challenge on this difference of language is flawed , because no attempt was made to put before this Tribunal any evidence as to how the Respondent’s case on this aspect was presented in the appeal before the First-tier Tribunal . It is quite conceivabl e that during the hearing before the judge the Secretary of State accepted that there was no longer any issue that it “is” in the best interests of t he children to remain in the UK . 32. The other criticism which was made of the judge’s reason s related to his finding that it was not in the best interests of the children to be separated from their father. We say very little about this criticism for two reasons. First, as we have said the judge expressed himself in summary terms having already decided the case in the Appellant’s favour under r egulation 21(3). Second, the Respondent has not provided information as to how this point was dealt with before the Tribunal, so as to justify an argument that any further reasoning on this point in this particular case was required .