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
		Hearing 23 May 2012

His Honour Judge Sycamore:

INTRODUCTION

1. The claimant, Elvis Kuteh, a former mental health nurse, seeks judicial review of two decisions of the Upper Tribunal (Administrative Appeals Chamber) ("the defendant").
2. The decisions in question are first, the defendant's refusal of 11 January 2010 of permission to appeal a decision of the the First-tier Tribunal (Health Education and Social Care Chamber) upholding the claimant's placement on the Protection of Children and Protection of Vulnerable Adult Lists and, second, the decision of the defendant of the 1 April 2010 by which it refused to set aside its earlier refusal of permission to appeal.
3. Permission was granted on 8 July 2011 by Wilkie J but only in respect of the decision on 11 January 2010. He agreed that the other grounds could be put before the court at the substantive hearing. Both parties made their submissions to me on the basis that the two decisions of the Upper Tribunal (11 January 2010 and 1 April 2010, which are inextricably linked, should be considered and I proceed on that basis.
4. The claimant and the Secretary of State for Education ("the interested party") were represented in the substantive proceedings before me. The defendant has played no active part in these proceedings.
5. As I have observed, permission was granted by Wilkie J on 8 July 2011 following a renewed oral hearing, permission having been refused on the papers by Mitting J on the 17 February 2011. I should point out that at that time the applicable law was as set out by the Court of Appeal in R Cart (on the application of)v Upper Tribunal [2010] EWCA Civ 859 that judicial review of a decision of the Upper Tribunal to refuse permission to appeal 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.
6. By the time the renewed application was heard the Supreme Court had adjudicated in the case of R Cart v The Upper Tribunal [2011] UKSC 28, concluding that judicial review is available to challenge a refusal to grant permission by the Upper 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 provided for in CPR 52.13(2) ("the second appeals test") which reads:

i. "(2) The Court of Appeal will not give permission unless it considers that –

(b) the appeal would raise an important point of principle or practice; or

(c) there is some other compelling reason for the Court of Appeal to hear it."

7. Thus, the Supreme Court decided that the adoption of those criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal of Upper Tribunal of permission to appeal to itself.
8. The claimant does not argue that any important point of principle or practice is raised, rather that there is some other compelling reason for the decision to be reviewed. As Wilkie J observed, there was not, at the time of his judgment, any jurisprudence in the High Court or the Court of Appeal in this particular context as to what would or would not amount to some other compelling reason.
9. Since then, the Court of Appeal has handed down its judgment in PR Sri Lanka [2012] 1 WLR, 73 [2011] EWCA Civ 988, in which it was confirmed that the second appeals test for judicial review of the Upper Tribunal should be applied in accordance with the guidance of Dyson LJ (as he then was) in Uphill v BRB [2005] EWCA Civ 60. Carnwath LJ (as he then was) held:

i. "Authoritative guidance on the operation of the second appeals test under the 1999 Act was given by Dyson LJ (with Tuckey LJ) in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, approved by the then Master of the Rolls (Lord Phillips) and Vice-President (Brooke LJ), but 'not intended to be exhaustive'. Of the first limb ('important point of principle or practice'), he distinguished between (a) establishing a principle or practice and (b) applying it correctly; only the former would justify a second appeal (para 18)."

10. In dealing with the second limb, a compelling reason, Carnwath LJ said this:

i. "24 (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR r 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.

ii. (2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

iii. (3) 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."

11. Carnwath LJ also discussed the relevance of the consequences for the individual, a matter referred to by both Baroness Hale and the Lord Dyson in Cart (paragraphs 57 and 131 respectively), saying at paragraph 36:

i. "It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words 'compelling' means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

12. In the more recent decision of the Court of Appeal in JD Congo [2012] EWCA Civ 327, the Court of Appeal again considered the consequences for the individual. Lord Neuberger MR said at paragraph 26:

i. "In our view paragraph 36 of PR is consistent with Cart, indeed it would be surprising if it was not. As we read the judgment in PR, the Court was emphasising the fact that, in the absence of a strongly arguable error of law on the part of the UT, extreme consequences for the individual could not, of themselves, amount to a free-standing 'compelling reason.' The Court noted that Baroness Hale and Lord Dyson had 'acknowledged the possible relevance of the extreme consequences for the individual.' It did not suggest that such consequences were irrelevant to the consideration of whether there was a 'compelling reason', it merely stated, in our view correctly, that absent a sufficiently serious legal basis for challenging the UT's decision, extreme consequences would not suffice."

13. The thrust of the claimant's argument arises from the unusual combination of events which occurred both at First-tier Tribunal and the Upper Tribunal from which it is said that there were serious procedural irregularities such that they amounted to a "compelling reason" within the Cart meaning of that phrase and that the assertion that the consequences for the claimant have been extreme, effectively his career as a nurse has been ended, adds support to the claim to a "compelling reason".

BACKGROUND

14. Until the transfer of responsibility to the Secretary of State for Education, the Secretary of State for Children, Schools and Families had responsibility for maintaining lists which identified those individuals who Secretary of State considered were unsuitable to work with children, to work in educational establishments or to work with vulnerable adults. Those lists known as the PoCA List and the PoVA List were maintained under powers provided by the Protection of Children Act 1999 and the Care Standards Act 2000 respectively. Those listing schemes have since been replaced by the Children Barred List and the Adults Barred List. At the material time the relevant lists were the PoCA and the PoVA lists.
15. On 22 November 2007 the Secretary of State provisionally placed the claimant on the PoCA and PoVA Lists. The placement was confirmed on 10 July 2008.
16. On 25 July 2008 the claimant appealed to the First-tier Tribunal against his placement on the PoCA and PoVA lists. The appeal was heard on 14 January 2009 and the 6 February 2009. On 3 March 2009 the First-tier Tribunal handed down its judgment and dismissed the claimant's appeals against inclusion on the PoCA and the PoVA lists.
17. The claimant's application to the First-tier Tribunal for permission to appeal was refused on 3 April 2009. On 22 May 2009 Upper Tribunal Judge Rowland dismissed the claimant's application for permission to appeal. That application was renewed to an oral hearing which took place before Upper Tribunal Judge Wikeley on 4 January 2010. I pause to observe that the delay was not attributable to the claimant. The application was dismissed on 11 January 2010. The claimant then applied to set aside the Upper Tribunal's refusal of permission on the ground of procedural irregularity. This application was dismissed on 1 April 2010 and it is in respect of those two decisions that the claimant seeks judicial review.
18. The background facts are as follows. The claimant qualified as a mental nurse in 1995. He trained at Ashworth High Security hospital but has worked at a number of hospitals typically finding work through an agency. He had received a conditional discharge for common assault in May 1999 and had declared this to the agency and continued to work. He had also, in July 2007, received a police caution for common assault on his daughter who he had slapped four or five times and he had kicked her. He had failed to disclose this caution to the agency.
19. On 1 September 2007 a riot took place at a secure unit for children where the claimant was then working. One of his colleagues was subjected to an attack by a number of patients at the outset of the riot, and as the riot, continued the claimant became a particular focus for attack. Although the police arrived they initially refused to become involved and it was only when specialist riot police arrived on the scene that order was restored.
20. During the course of the riot the claimant and a colleague, Mr William Buck, restrained one of the patients. Her identity was anonymised in the proceedings as "KG" because of her age. The claimant was accused of having assaulted KG. As a consequence of that allegation the agency suspended the claimant and referred him to the Secretary of State and the PoCA and the PoVA lists procedures, which I have described, were activated.

THE HEARING BEFORE THE FIRST-TIER TRIBUNAL

21. The hearing, as I have observed, took place over two days with judgment being reserved. Evidence was taken on 14 January 2009 and legal argument on 2 February 2009. The Tribunal bundle contained some 447 pages including statements of two nurses present at the scene of the riot on 1 September 2007 and present at the incident involving KG. They were Ms Donna Marsh and Ms Catherine Myers who had witnessed the incident involving the claimant and KG leading to the allegation of assault.
22. Significantly, on the morning of 14 January 2009, counsel for the Secretary of State brought to the attention of the First-tier Tribunal and the claimant a statement and incident report of Mr Buck. There was a short adjournment to enable the claimant and his representative, Mr S Jonjo, a social care manager, to consider it. The claimant decided to agree to the statement being considered by the First-tier Tribunal. Mr Buck was not called to give oral evidence. The statement and incident report were added to the bundle and paginated as pages 448 to 453.
23. In its judgment handed down on 3 March 2009 the First-tier Tribunal found that (1) that the assault on his daughter and the failure to disclose the caution amounted to misconduct, on the part of the claimant and (2) in respect of the incident involving KG, said this at paragraph 44 of the decision:

i. "We do not find Mr Kuteh's account to be credible. It is also clear from the findings already made that he is a man with poor impulse control. We therefore found that Mr Kuteh did assault KG by punching her in the face and kicking her in the leg. This was no doubt a reaction to extreme provocation but nonetheless displayed an unacceptable response to the situation."

24. The judgment made no reference to the evidence of Mr Buck. It referred to nearly 450 pages of evidence it had considered but made no reference to the additional pages at pages 448 to 453.
25. All of the other evidence was specifically referred to. At paragraph 5 of the judgment the First-tier Tribunal said this:

i. "The Tribunal had before it nearly 450 pages of evidence. We heard oral evidence from the following witnesses:

ii. DC Sophia Keeling

iii. Ms Catherine Myers

iv. Ms Donna Marsh

v. Ms Dina Oben

vi. Mrs Kuteh

vii. Mrs Kuteh

viii. Mr Nuriam Salaam

ix. 6. We will deal with the evidence in respect of each allegation in turn."

26. In analysing the evidence in relation to the incident involving KG, there was a reference to other written evidence including, for example, that of KG's statement to the police. KG did not give oral evidence at the hearing. There was also reference to evidence from Sally Page who ran the agency at the time. Her name was not included at paragraph 5 in the list of witnesses who gave oral evidence.
27. In granting permission Wilkie J at paragraph 14 of his judgment understandably formed the view that the reference to Sally Page was to her written witness statement. It was suggested to me by counsel for the Secretary of State that Sally Page in fact gave oral evidence but there was no evidence before me on that point.
28. In any event it was accepted by all parties that the First-tier Tribunal decision made no mention of either Mr Buck's statement or of his incident report.
29. At paragraph 43 of its decision the First-tier Tribunal said:

i. "If the allegation had come from KG alone we would have been cautious in accepting her account but it is does corroborate was Ms Marsh and Ms Myers said. The injury observed on 3 September in hospital is also consistent with a kick as described but not consistent with a fall and clearly occurred before the police arrived."

30. It is informative to look carefully at what the witnesses to the incident described in their statements and what the First-tier Tribunal's findings were. Catherine Myers in her statement at paragraph 11 said this:

i. "It was then that I saw Elvis punch and kick KG. He punched her with his left hand and kicked her with his right leg. The punch made contact with her, as did the kick. The other young people (GW and RK) then moved towards him. I shouted at Elvis to get off the floor (ie to leave the courtyard area). I think that all the young people were shocked as I was. I am clear this was not a punch in self-defence"

31. At paragraph 23 of its decision the First-tier Tribunal the Tribunal said this:

i. "When giving evidence Ms Myers became very emotional and it was obvious to us how traumatic the shift had been for all concerned. In cross-examination Ms Myers remained adamant that she saw Mr Kuteh punch and kick KG. She was adamant that these were not defensive actions and that they did not accord to good practice. At no point did she see any other staff member retaliate or act inappropriately despite the severe provocation. She confirmed that she had not met Mr Kuteh before that shift. It was put to her that there was a similarity in the wording of a statement made by her the next day and that one of one made by Donna Marsh. She denied any collusion."

32. Donna Marsh in her statement, page 438 of the bundle, at paragraph 8, said this:

i. "Mr Kuteh retaliated by kicking KG, and from what I could see, this kick made contact with KG's leg. KG complained immediately that Mr Kuteh had hit her, and that her leg was hurting. However, I do recall that within a few minutes, she was once more attacking members of staff.

ii. 9. As far as I could tell, Mr Kuteh was trying to protect himself from KG, and lashed out at the same time, without thinking. I only saw him deliver one kick, although I think KG's leg may have been bleeding afterwards. The incident would have occurred at around 7 or 7.30 pm."

33. At paragraph 24 of the decision the First-tier Tribunal said this:

i. "Donna Marsh gave evidence. At the time she was a support worker at X. She is no longer working there and said that she felt that staff morale in September 2007 was quite low. She confirmed Miss Myers evidence regarding the build up to the riot. She described the situation as very volatile. She was about a metre away from Mr Kuteh restraining another young person. She saw KG lash out at him and he retaliated by hitting her and kicking her. She saw an injury to KG's leg before he police intervened. She denied in colluding with Miss Myers in making her statement saying effectively she used the start of the statement prepared earlier by Miss Myers as a template. Again she does not know Mr Kuteh at the time."

34. Mr Buck in his statement in the bundle at pages 448 to 450 at paragraph 12, said this:

i. "As this was happening, Mr Kuteh lashed out at [KG], hitting her somewhere in the face. I am not sure exactly where Mr Kuteh hit [KG], but my impression was that, while he was defending himself, he was not trying to assault her, it seemed to me more like he was trying to stun her into stopping her attack on him. However, I was still shocked at Mr Kuteh's actions, and shouted at him, saying, 'What are you doing?'"

35. Whilst the First-tier Tribunal would have had to consider the question of weight to be attached, given the fact there was no oral evidence from Mr Buck, the fact remains there is no reference to their having taken that evidence into account at all. Looking at the overall picture, there were two accounts which lent support to the use of lawful self-defence by the claimant and one which did not. That tension was simply not addressed or grappled with.
36. I pause to observe that it was suggested by counsel for the Secretary of State the First-tier Tribunal did consider Mr Buck's statement at the outset of the hearing on 14 January 2009, but there was no evidence before this court to assist on that assertion. On any view Mr Buck was an important eye witness.
37. It was accepted that at a hearing held on the 15 and 16 February 2011 the claimant's own professional body, the Nursing and the Medical Council Conduct and Competence Committee, found that the allegation of assault against KG was not well founded. That Committee did take oral evidence from Ms Myers, Ms Marsh and Mr Buck.

THE PROCEEDINGS BEFORE THE UPPER TRIBUNAL

38. As I have already observed, the application was refused on the papers on 22 May 2009.
39. The renewed oral application took place on 11 January 2010 before Upper Tribunal Judge Wikeley. On that occasion the claimant was legally represented for the first time and his solicitor, Mr Duncan, raised as one of his grounds for seeking permission to appeal, the fact that there was no mention in the decision of First-tier Tribunal of 3 March 2009 of the evidence of Mr Buck. The Upper Tribunal dealt with this point when refusing permission in the following terms:

i. "As to (ii), 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."

40. Also at paragraph 12 of the decision the Upper Tribunal examined, albeit briefly, Mr Buck's evidence and said this:

i. ….. But of course a tribunal is not required to deal with every piece of evidence. This tribunal dealt with the evidence of two staff witnesses which was firmly adverse to the applicant. It also dealt with the evidence of two staff witnesses who had not seen any assault by the applicant on the KG. As the tribunal noted 'Given the chaotic situation it is not surprising that the incident was not seen by all staff [and] their failure to see it does not mean it did not happen as described'. While I accept that Mr Buck was closer to the incident than any of the other four witnesses, it does not necessarily follow that he had the best view, given he and the applicant were on either side of KG seeking to restrain her. It is also right to say that Mr Buck's evidence is by no means a vindication of the applicants behaviour. It is ambivalent about the applicant's conduct. It is true that in his witness statement Mr Buck states that his impression was that the applicant was defending himself, rather than trying to assault KG, but it still described himself as 'shocked' at the applicant's action, which is consistent with his incident report. I cannot say that it is arguable that the tribunal erred in law in not referring to the Mr Buck's evidence, not least as it had over 400 pages of documentary evidence to consider."

41. As I have observed, Wilkie J did not find it necessary to determine whether the challenge to the decision of 1 April 2010 was arguable. I do not consider it necessary to spend time in considering that decision in isolation.
42. Furthermore, it is apparent from the words used by the Upper Tribunal that the judge based his findings on the premise that the First-tier Tribunal made no reference to Mr Buck's evidence. It is unclear whether the Upper Tribunal formed a view as to whether the First-tier Tribunal had considered or failed to consider Mr Buck's statement or simply failed to refer to it in its judgment. Similarly the decision does not address the question as to whether Mr Buck's statement was in the bundle before the First-tier Tribunal when it deliberated and produced its decision.

DISCUSSION

FAILURE TO CONSIDER THE EVIDENCE

43. That a court or tribunal must consider all of the evidence submitted by the parties, cannot be disputed - see for example the extract from Wade and Forsythe Administrative Law 10^th edition page 433 which states:

i. "Where an oral hearing is given, it has been laid down that a tribunal must (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or independently; (c) allow witnesses to be questioned; (d) allow comment on the evidence and argument on the whole case."

44. Support for that proposition is cited in Wade & Forsythe, for example the judgment of Diplock LJ (as he then was) in R v Deputy Industrial Commissioner ex parte Moore [1965] 1 QB 456:
45. "Where, as in the present case, a personal bias or mala fides on the part of the Deputy Commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. Firstly, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. [487G & 488 AJ]
46. Where …. there is a hearing whether requested or not, the second rule requires the Deputy Commissioner (a) to the consider such "evidence" relevant to question to be decided as any person entitled to be represented wishes to put before him".
47. In W v Special Needs Tribunal (unreported, The Times 12 December 2000), where the respondent Tribunal had failed to take some documentary evidence into account, the Court of Appeal said this at paragraph 23:

i. "Whether one treats this as a case of ignoring relevant information (which, like the learned judge who granted permission to appeal in this case, I do) or as one of procedural unfairness, it is not in dispute that the tribunal erred. Where a decision-maker has left out of account some relevant matter the legal test, as a matter of public law, is whether that factor might realistically have caused him to reach a different conclusion. The person challenging the decision does not have to show that a different result would have obtained or even that that is likely. The court will quash the decision in such circumstances if a different result might realistically have followed from a consideration of the overlooked material.

48. That was the position adopted by this court in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1991] 61 PC & R 343 where Glidewell LJ referred to the test as being:
49. "one of whether there was "a real possibility" of a different decision if the relevant factor had been taken into account. A real possibility will suffice. I, for my part, would distinguish that from a mere fanciful one.
50. The same approach was adopted in R v Parliamentary Commissioner for Administration ex parte Bouchen [1997] COD 146. The position is not materially different in many cases of procedural unfairness although it may depend on the severity of the procedural breach".
51. In PH v The Independent Safeguarding Authority [2012] UKUT 91 (AAC), a decision of the Administrative Appeals Chamber of the Upper Tribunal, reference was made to another decision of the same Chamber in SB v The Independent Safeguarding Authority [2011] UKUT 404 (AAC), in which the following was said paragraph 40:

i. "We are not able to agree with this submission. We are mindful that we must read section 4(3) in a way that is compatible with the Human Rights Act 1998, and the approach adopted by Wyn Williams J, in our view, is the correct way to proceed. If a decision taken by ISA to place a person on a list, or not to remove him from the list, is disproportionate to the facts as presented to the Respondent, then there is an error of law, and the Tribunal on appeal is entitled, indeed obliged, to direct ISA to remove the person from the list, or remit the matter to ISA for a new decision."

and at paragraph 41:

ii. "41. The only way in which a Tribunal can form a view as to whether a decision of the Respondent is disproportionate is to engage in 'a weighing of evidence exercise', not so as to ascertain whether the decision is or is not appropriate (that is a matter solely for the Respondent) but so as to ascertain whether it is disproportionate and therefore outwith the lawful decision making exercise of the Respondent. It is therefore the totality of the evidence that the Tribunal must concern itself with. In considering the totality of the evidence, it is in our view necessary to look carefully at individual aspects to that evidence and to form a view whether the conclusion that the Respondent has placed on the totality of the evidence is disproportionate."

52. As is observed in Fordham, Judicial Review Handbook, 5th ed (36.4.2) a procedural irregularity can only be typically "cured" either by an appeal by way of a full rehearing or by a further hearing by the first instance body.
53. As I have already observed, on the issue of whether the claimant was using lawful self-defence, Mr Buck's statement is of considerable significance particularly when taken with the evidence of Ms Marsh. The inference that the First-tier Tribunal did not consider Mr Buck's statement when considering and drafting its reserved judgment is a strong one. The following factors are relevant:

(a) As I observed at paragraph 30, the First-tier Tribunal bundle provided to the Upper Tribunal did not contain Mr Buck's statement;

(b) The description by the First-tier Tribunal of a bundle containing nearly 450 pages when in fact Mr Buck's statement was or should have been at pages 448 to 453;

(c) The specific references by the First-tier Tribunal to all of the evidence before it, both oral and written, with the exception of Mr Buck's statement;

(d) The lack of any evidence to support the Secretary of State's assertion that the First-tier Tribunal read the statement during the January 2009 hearing.

54. In my judgment, having regard to the authorities to which I have referred, a failure to consider at all a particular piece of evidence when reaching a decision is a serious procedural irregularity. The Upper Tribunal at paragraph 12 said, as I have already indicated:

i. "But of course a tribunal is not required to deal with every piece of evidence."

55. This has the disadvantage of a term which is ambiguous. Does it mean that it is not required to consider or take account of it? or does it mean that it does not need to refer to all of the evidence in its judgment? Even if it is not referred to in the judgment, it must still be considered. I remind myself of what I said earlier when referring to the extract from Wade and Forsyth, Administrative Law at page 433 (para 33).
56. Having acknowledged that the First-tier Tribunal did not make any reference to Mr Buck's evidence, the Upper Tribunal went on to say that the evidence which it did consider, that of Ms Myers and Ms Marsh, was "firmly adverse to that of the applicant". It does not record that their evidence differed, at least in the case of Ms Marsh in her written statement on the issue of possible lawful self-defence, nor did it compare their evidence with that contained in the statement of Mr Buck. Instead the Upper Tribunal embarked on an exercise in which it endeavoured to analyse the evidence and assess for itself what impact it might have had, concluding that
57. " ……. I cannot say that it is arguable that 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".
58. In my judgment, the failure by the First-tier Tribunal to consider the evidence of Mr Buck was a serious procedural irregularity. It seems clear that the Upper Tribunal either failed to appreciate the First-tier Tribunal had simply not considered Mr Buck's evidence or did appreciate that it had not considered it but did not recognise that this vitiated the First-tier Tribunal's decision, which it clearly did.
59. It therefore follows that the Upper Tribunal's approach itself was vitiated by serious procedural irregularity and a failure to apply the rules of natural justice or procedural fairness.
60. The Upper Tribunal could have cured the First-tier Tribunal's procedural irregularity by directing a full rehearing of the evidence, either by remitting to the First-tier Tribunal or arranging for a hearing by the Upper Tribunal.
61. I accept the claimant's submission that it was not sufficient for the matter to be dismissed at a permission to appeal hearing.

IS THIS A COMPELLING REASON WITHIN THE CART DEFINITION?

62. This judicial review is very fact specific. The criteria as defined in Cart set a high threshold. In the unusual circumstances of this case and to adopt the words of Wilkie J when granting permission:

i. "The rather odd way in which B's written evidence appears to have been treated did not end with the decision of the First-tier Tribunal"

63. I am satisfied that the high threshold is crossed. In summary, against a background in which there was a significant procedural error on the part of the First-tier Tribunal, either in failing to consider Mr Buck's evidence at all during the proceedings or not having it before them when considering their decision and preparing their reasons, the Upper Tribunal compounded the error of the First-tier Tribunal by refusing permission and subsequently refusing to set aside that refusal, thus depriving the claimant access to the process by which the procedural error of the First-tier Tribunal could have been remedied.
64. In so far as it is necessary to say so, it is clear, in my judgment that in considering whether the Cart threshold is crossed the extremity of the consequences to this claimant, the end of his career as a nurse, lends support to the existence of a "compelling reason".
65. I have reminded myself that it is sufficient for a decision to be quashed if a different result might realistically have followed from a consideration of the evidence which was not taken into account. I do not say that the result would have been different but arguably it could have been. I have also reminded myself of what was said by Carnwath LJ at paragraph 24(3) of PR Sri Lanka to which I referred earlier (para 7).
66. In concluding as I have done, I have been conscious that the High Court should be slow to interfere with a decision of the Upper Tribunal, it being a superior court of record. Having regard to that and its specialist nature and expert knowledge, the judicial review jurisdiction should be exercised sparingly.
67. It follows that in the most unusual circumstances of this case I must conclude that the Upper Tribunal erred when it first refused permission to appeal and the subsequent refusal to set aside that refusal effectively perpetuated the serious procedural inadequacies of the treatment of Mr Buck's evidence by the First-tier Tribunal.
68. It was submitted on behalf of the Secretary of State that the First-tier Tribunal based its decision on all of the three examples of conduct in which it made findings adverse to the claimant of which the "riot incident" was but one. Notwithstanding this, it is clear that the alleged assault in the course of the riot was the main and most serious allegation.
69. In all of those circumstances, I grant the application for judicial review and quash the decisions of the Upper Tribunal of 11 January 2010 and 1 April 2010. I direct that the matter is remitted to the Upper Tribunal to reconsider the application for permission to appeal and to reach a decision in accordance with this judgment.
70. MR O'BRIEN: I am very grateful. For my part that leaves the question of costs. The claim has succeeded and the usual rule is that the costs follow the event. You will recall my Lord that is was --
71. HIS HONOUR JUDGE SYCAMORE: Bear with me. I have the statement of costs. (Pause)
72. MR O'BRIEN: The submission on principle is that the claim has succeeded and that the claimant should have his costs. The slightly unusual nature of the application is that the claimant has not incurred any costs but he has been represented on a pro bono basis. I have given you the statutory authority for such an order being made. I do not know whether it is perhaps sensible for you to hear from my learned friend as to whether she opposes such.
73. HIS HONOUR JUDGE SYCAMORE: We established on the last occasion that VAT should not be added.
74. MISS OLLEY: With that having been established, I have not any direct instructions on the matter but it did not seem to me that there was anything unusual about the hours claimed. It is rather high for a 1 day hearing, so I will leave it to your Lordship as to whether your Lordship thinks it should be the entirety that is awarded. I need not say anymore than that.
75. HIS HONOUR JUDGE SYCAMORE: I am not going to interfere with the costs as claimed. I make an order then pursuant to section 194(3) of the Legal Services Act 2007 that the interested party pay the claimant's costs incurred on a pro bono basis in the sum of £5,700.