England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8th July 2011

1. MR JUSTICE WILKIE: This is a renewed application by Elvis Kuteh to seek permission to apply for judicial review of two decisions of the Upper Tribunal Administrative Appeal Chamber to refuse him permission to appeal against the decision of the First Tier Tribunal, the Health, Education and Social Care Chamber, which in turn upheld his placement on the lists under the Protection of Children Act and the Protection of Vulnerable Adults Act, respectively 1999 and 2006.
2. The judicial review claim was initially the subject of a refusal by Mitting J on 17 February 2011. That was on the basis that, this being an application for review of a decision by the Upper Tier Tribunal to refuse permission to appeal, as the law then stood, the Court of Appeal having adjudicated on the application of R (Cart) v The Upper Tribunal; R (MR (Pakistan)) (FC) v The Upper Tribunal (IAC) [2011] UKSC 28 that judicial review only lay on the grounds that the decision-maker lacked jurisdiction, or acted with such a degree of procedural unfairness as to nullify the decision that the application for permission could not succeed.
3. This renewed application comes to court after the case of Cart has been adjudicated upon by the Supreme Court in a judgment given on 22 June 2011. The conclusion of their Lordships in the Supreme Court was that judicial review is available to challenge a refusal to grant permission by the Upper Tier Tribunal, but only on the same basis as where, in the civil courts, there is power to permit a second appeal to the Court of Appeal, as identified in CPR 52.13(2), which reads:

The Court of Appeal will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it.

4. The Supreme Court in Cart decided that the adoption of those criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself.
5. As yet, there is no jurisprudence in this court or the Court of Appeal in this particular context as to what would or would not amount to some other compelling reason. It is not, in this case, sought to be argued that the appeal would raise an important point of principle or practice. However, in the context of civil appeals, there is some authority, in particular the case of Uphill (Widow & Administrator of the Estate of Malcolm Ernest Uphill) v BRB (Residuary) Ltd [2005] EWCA Civ 60, where Dyson LJ, as he then was, identified at paragraph 24 some basic principles which elucidated the meaning of the phrase "some other compelling reason".
6. Mr O'Brien, who has appeared for the claimant this morning, in his very helpful oral and written submissions has identified sub-paragraph (3) of that paragraph as being the ground upon which he seeks to rely in arguing that this is a case in which permission should be granted for his client to seek a judicial of that decision of the Upper Tier Tribunal.
7. That sub-paragraph reads as follows:

There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.

8. The main thrust of his argument is that the apparent combination of events which occurred at the First Tier Tribunal and at the Upper Tier Tribunal is such that it is arguable that this is, by reference to that third criterion, capable of being a case giving rise to some other compelling reason why judicial review should lie.
9. The hearing at the conclusion of which the claimant sought permission to appeal was of the First Tier Tribunal, held on 14 January and 6 February 2009, and which gave rise to a reserved decision, handed down on 3 March 2009. That First Tier Tribunal upheld the conclusion of the Secretary of State that the claimant was guilty of misconduct, and that this gave rise to a situation in which he was unsuitable to work with children. The FTT agreed with those two conclusions, and for that reason dismissed his appeal against inclusion on the lists under the two statutory regimes.
10. Although the misconduct alleged against him was of misconduct on three occasions, Mr O'Brien argues, and in my judgment with some force, that the main allegation of misconduct concerned an alleged assault upon a child, KG, at a time when the claimant was at work as a registered mental health nurse, working for an agency. The circumstances of that alleged assault were hotly disputed. There was a significant body of evidence, however, to the effect that during tumultuous and riotous events, the claimant, having been attacked by KG, lashed out and struck her in the face and/or on the leg.
11. Before the First Tier Tribunal a number of witnesses were called and gave oral evidence, including Ms Catherine Myers and Ms Donna Marsh. At the start of the hearing before the First Tier Tribunal, counsel for the Secretary of State sought to introduce a written witness statement and a contemporaneous report of another witness, William Ronald Buck, who at the relevant time had hold of KG along with the claimant. He too gave evidence in his statement that the claimant lashed out in the circumstances described by the others, and hit the girl in the face.
12. It is apparent from the witness statements of Donna Marsh and Mr Buck that, although each of them witnessed the claimant's striking the girl, each of them indicated that from their perspective he was trying to protect himself from her. Ms Marsh said he was trying to protect himself from KG and lashed out at the same time without thinking. Mr Buck said:

My impression was that whilst he was defending himself, he was not trying to assault her. It seemed to me more likely he was trying to stun her into stopping her attack on him.

13. There was some question raised by the claimant's then representative whether Mr Buck's witness statement should be placed before the First Tier Tribunal, but after an adjournment to consider its terms, the view was taken by him that, to a degree, Mr Buck's witness statement supported the claimant's case that he was not guilty of misconduct, and accordingly it was agreed that it should be added to the bundle.
14. The First Tier Tribunal's decision, as I have indicated, was reserved, evidence as to the facts having been given on 14 January and legal argument on 2 February. By the time the First Tier Tribunal came to deliver its reserved decision, thought it recorded meticulously the course of the proceedings, it did not contain any reference to the late addition of the witness statement of Mr Buck. It identified the witnesses from whom they heard oral evidence, and they also made reference, in the course of the decision to the written witness statements that they had received, for example, one Sally Page but none to the statement of Mr Buck.
15. At the start of the tribunal's reasons, at paragraph 5, it said, "The tribunal had before it nearly 450 pages of evidence". In fact, the bundle which was before the tribunal initially, which did not include Mr Buck's statement, contained 446 pages. Mr Buck's statement, plus his incident report, took the number of pages in that bundle to 453. The careful and full statement of reasons by the First Tier Tribunal contained, it is common ground, no mention of Mr Buck's statement or his incident report. (When this case is ultimately heard, it is important that a deficiency in the bundle is made up, because page 9 of the FTT's decision is not in the court's copy, nor apparently is it in Mr O'Brien's copy).
16. The rather odd way in which Mr Buck's written evidence appears to have been treated did not end with the decision of the FTT. The claimant applied for permission to appeal against the decision of the FTT, and this was initially considered on the papers by a judge of the Upper Tribunal, Judge Rowland, on 22 May 2009, who refused permission.
17. As he was entitled to do, the claimant then renewed his application for permission and sought to have it dealt with at an oral hearing, which took place on 11 January 2010, and is the first decision sought to be reviewed. That hearing was conducted by Judge Wikeley.
18. At that stage, the claimant's representative, Mr Duncan, raised as one of his grounds for seeking permission to appeal the fact that the FTT had made no mention of the evidence of Mr Buck, whose witness statement and incident report were at pages 448 to 453 of the tribunal bundle. At paragraph 12 of the Upper Tribunal's decision refusing permission, Judge Wikeley said this:

As to (2), it is quite true that the tribunal make no reference to Mr Buck's evidence. It is also the case that his evidence did not appear to be in the First Tier Tribunal file of evidence obtained by the Upper Tribunal, and may well not have been before Judge Rowland.

19. Mr O'Brien invites the court to infer from that set of circumstances, as well as the reference by the FTT in its decision to a bundle of nearly 450 pages of evidence, together with its inexplicable failure to mention Mr Buck at all, despite the meticulous treatment by it of all the evidence, including other written evidence, that, for some reason or another, by the time it came for the FTT to consider its reserved decision, the witness statement of Mr Buck and his contemporaneous incident report had simply disappeared from the bundle.
20. It follows, therefore, Mr O'Brien says, that the Upper Tier Tribunal in considering permission to appeal was, by 11 January 2010, confronted with an argument that there was a serious procedural defect before the FTT, namely that it had failed to consider at all the evidence of an important eye witness, an eye witness whose written evidence supported the contention that the claimant was not guilty of misconduct because, whatever he did, was done in lawful self-defence, a position which, at least in her written witness statement, was supported by one of the other two eye witnesses to what happened, Ms Donna Marsh.
21. Furthermore, Mr O'Brien points out that Judge Wikeley appears to accept implicitly that the First Tier Tribunal had failed to have regard to or to deal with that piece of evidence, because in the remainder of paragraph 12 of his decision, Judge Wikeley examines fairly briefly what Mr Buck's evidence was and seeks to reconstruct for himself how that may have played in the overall evidence, and concluded by saying as follows:

I cannot say that it is arguable the tribunal erred in law in not referring to Mr Buck's evidence, not least as it had over 400 pages of documentary evidence to consider.

22. Mr O'Brien argues that Judge Wikeley himself was guilty of a further serious procedural error. If, as Mr O'Brien says, it can be inferred Judge Wikeley was of the view that the FTT had simply failed to consider the written evidence of Mr Buck, he says that it was a procedural error on the part of Judge Wikeley to endeavour, in considering permission to appeal, to try to make good such deficiency or to try to assess, by some form of analysis of what Mr Buck said, the impact of that apparent procedural failure.
23. Mr O'Brien points out that there is a great deal of authority on the extent to which an appellate hearing can remedy a significant procedural defect at first instance, and he argues that the trend of the authorities suggests that such a procedural error can only be made good by a full -- or full-ish -- re-hearing at the appellate level. Furthermore, as Mr O'Brien points out, the powers of the Upper Tribunal include the power, if it finds that the making of the first instance decision involved an error of law, to re-make the decision itself, and it is commonplace, if the Upper Tribunal does so, for it to receive oral evidence.
24. Mr O'Brien says that if, as is obvious in this case, Judge Wikeley, in considering permission to appeal, had concluded that there was a significant procedural error on the part of the First Tier Tribunal, either in failing to consider Mr Buck's evidence, or not having it placed before it when they came to consider their decision, then Mr O'Brien says that it was a further procedural error on the part of Judge Wikeley to refuse permission to appeal, thereby refusing access to the mechanism by which, if the Upper Tribunal so chose, that procedural error could have been remedied.
25. Mr O'Brien argues that what happened here falls four-square within the description of one set of circumstances by Dyson LJ, as he then was, in Uphill, as to what may amount to a compelling reason to grant permission to appeal, even where the prospects of success may not be very high. In my judgment, on this basis, the point sought to be argued on behalf of the claimant by Mr O'Brien is arguable, and I grant permission for a judicial review to be sought in respect of the decision of Judge Wikeley on 11 January 2010, on that basis.
26. There are two other grounds upon which Mr O'Brien seeks permission. I have come to no conclusion as to whether either of them is arguable, because I have concluded that the main ground upon which Mr O'Brien relies is arguable. Those other grounds may be put before the court hearing the application for judicial review, but I am specifically not ruling that either of them is in itself an arguable ground, but it is sufficient for Mr O'Brien's purposes that I have found that his first ground is arguable.
27. MR O'BRIEN: I am very grateful, my Lord. That leaves three matters --
28. MR JUSTICE WILKIE: Yes.
29. MR O'BRIEN: -- costs, further directions, and if I may ask your Lordship to make a direction that there be permission to cite this judgment, in that it appears to accept that the Uphill ground of compelling reason, namely serious procedural irregularity, is a ground for judicial review. It is a relatively small step for anyone to take, but --
30. MR JUSTICE WILKIE: Well, you do not really need it because you have Uphill that says it anyway, and you have Cart that says --
31. MR O'BRIEN: Well, Uphill says it in the context of civil appeals, and here we are dealing specifically with judicial review.
32. MR JUSTICE WILKIE: Yes, I am aware that post-Cart there is a series of cases which are going to have to be decided, and it seems to me that it would be wrong for this particular decision, which is based on highly peculiar facts, to be cited, so I am not going to give permission for it to be cited.
33. MR O'BRIEN: Grateful, my Lord.
34. MR JUSTICE WILKIE: Sorry, the other --
35. MR O'BRIEN: Costs, I would simply ask to be costs in the case.
36. MR JUSTICE WILKIE: Yes.
37. MR O'BRIEN: Then standard directions --
38. MR JUSTICE WILKIE: Yes.
39. MR O'BRIEN: -- beginning with service of detail grounds of defence by the defendant.
40. MR JUSTICE WILKIE: Yes.
41. MR O'BRIEN: My Lord, I am happy simply to draw up a minute of order, including standard directions.
42. MR JUSTICE WILKIE: Yes, I mean, there is no expedition in this case required.
43. MR O'BRIEN: No, my Lord.
44. MR JUSTICE WILKIE: No, very well. (Pause). The court itself will draw up the order with the standard directions.
45. MR O'BRIEN: I am very grateful.
46. MR JUSTICE WILKIE: Yes. You are here on a pro bono basis?
47. MR O'BRIEN: I am.
48. MR JUSTICE WILKIE: Well, I am very grateful for your assistance. (Pause). I am just looking for my copy of Cart.
49. MR O'BRIEN: You are very welcome to the authorities bundle, my Lord, if you want it.
50. MR JUSTICE WILKIE: Oh well, I will retain the authorities bundle. You are sure you do not want this back?
51. MR O'BRIEN: No, that is fine.
52. MR JUSTICE WILKIE: Thank you.