Upper Tribunal (Administrative Appeals Chamber)

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal.

 

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 23 November 2010 under file reference EA/2010/0118 involves an error on a point of law and is set aside. The Third Respondent’s appeal against the First Respondent’s Decision Notice under reference FS50264189 is remitted to be reheard by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing should be at an oral hearing;

 

(2) The new tribunal should be differently constituted from the First-tier Tribunal which gave the decision dated 23 November 2010.

 

These directions may be supplemented by later case management directions issued by a Tribunal Judge in the General Regulatory Chamber (Information Rights) of the First-tier Tribunal.

 

REASONS

 

Introduction

1. The world of cricket is no stranger to the law courts.  Sometimes the dispute is between cricketers and non-cricketers: Lord Denning MR famously, or notoriously, began his judgment in Miller v Jackson ([1977] 1 QB 966 at 976) with the ringing declaration that "In summer time village cricket is the delight of everyone". In other cases an internal cricketing dispute erupts into the public arena, most notably in the litigation that is usually referred to as the “Kerry Packer case” (Greig v Insole [1978] 1 WLR 302).  The present case falls into the latter category, although the dispute appears to be more internecine and the stakes do not appear to be perhaps quite as high as they were in the Kerry Packer case.

 

2. Arguably no sport has a more complex body of laws and rules than cricket.  On the pitch the rules are applied by the umpires, while beyond the boundary rope the details of each innings are kept meticulously by the scorers.  England, of course, is the home of cricket.  It is also home to two organisations for cricketing officials, the Association of Cricket Umpires and Scorers (ACU&S) and the International Institute of Cricket Umpiring and Scoring (IICUS). ACU&S appears to have been in existence for some 50 years or more before merging with the England and Wales Cricket Board Officials Association in 2007 or 2008 to become what is now known as the ECB Association of Cricket Officials.  IICUS, on the other hand, is a relative newcomer. The company was registered at Companies House on 10 March 2006 (at that time as the “Institute of Cricket Umpires and Scorers Limited”, which was changed to the current name on 13 May 2008).

 

3. The creation of IICUS was not without controversy. It appears that IICUS was established by officers and members of ACU&S, individuals who were in turn expelled, barred from office or suspended at a Special General Meeting of ACU&S in December 2005.  Mr Peter Ray, the appellant before the First-tier Tribunal and a member of ACU&S, has since raised a number of concerns about IICUS, its status as an “Institute”, its finances and its company accounts.

 

The background to the appeal to the First-tier Tribunal

 

4. In particular, Mr Ray complained to Companies House that IICUS had supplied misleading information to it.  Companies House investigated the complaint and informed Mr Ray that it was satisfied that the information provided by IICUS was not misleading.  On 10 July 2009 Mr Ray made a request to Companies House under the Freedom of Information Act (FOIA) 2000 for the evidence submitted by IICUS in response to his earlier complaint.  Companies House refused the request, citing two exemptions: sections 41 and 43 of FOIA, referring to information provided in confidence and commercial interests respectively.  Mr Ray then complained to the Information Commissioner.

 

5. On 10 June 2010 the Information Commissioner issued his Decision Notice (FS50264189).  His ruling was that section 41 applied to all of the requested information and that Companies House had dealt with the request in accordance with FOIA.  The Commissioner therefore did not need to deal with the section 43 exemption.  On 29 June 2010 Mr Ray appealed to the First-tier Tribunal (General Regulatory Chamber) (Information Rights) (“the FTT”).

 

6. On 29 July 2010, following receipt of both Mr Ray’s appeal and the Information Commissioner’s response, the FTT issued directions that the appeal should be decided on the papers in the week commencing 11 October 2010, and providing that if either party, or the Registrar of Companies (the “Registrar”) or IICUS objected to the directions, they could apply for them to be varied.  However, it appears that these directions were sent only to Mr Ray and the Information Commissioner and not to IICUS.

 

7. On 13 August 2010 the directions issued on 29 July 2010 were wholly superseded by further directions.  These directions added the Registrar as Second Respondent, and directed that the appeal would be decided by paper hearing on 11 October 2010 unless the Registrar indicated that he required a hearing.  These directions did not mention IICUS at all.  It appears that these directions were sent to Mr Ray, the Information Commissioner and the Treasury Solicitor (acting for the Registrar) – but not to IICUS.

 

8. On 22 September 2010 the FTT substituted the Department for Business Innovation and Skills (DBIS) as the Second Respondent.  This was because strictly DBIS was the public authority under FOIA responsible for Companies House.

 

9. The FTT then proceeded to deal with the appeal on the papers. On 19 October 2010 the FTT office sent an embargoed copy of its draft decision, allowing Mr Ray’s appeal, to the Information Commissioner and to the public authority.  A copy was also sent to IICUS, with a letter inviting representations to be made by 5 November 2010 and prior to the decision being finalised.  The relevant paragraph of the embargoed draft decision read as follows:

 

“On the basis of the evidence and the submissions now before us we are therefore unanimously of the view that DBIS should have disclosed the information requested by Mr Ray and we are minded to allow his appeal and substitute the decision notice set out above.  However, we are concerned that IICUS’s position should not be prejudiced without them having an opportunity to apply to be joined as a party to the appeal and/or to make representations on the merits of our provisional decision.  We therefore propose to distribute this decision in draft to IICUS and to the Commissioner and DBIS (but not Mr Ray) and not to finalize it until 5 November 2010 in order to allow IICUS to make any representations they wish and the Commissioner and DBIS to draw to our attention any factual errors or inappropriate disclosures”.

 

10. On 29 October 2010 IICUS responded to the FTT, indicating its wish to resist the appeal, asking for a copy of the full bundle of papers, requesting a 14 day extension to 19 November 2010 to make submissions before the finalisation of the FTT’s decision, and asking whether IICUS would be permitted to have legal representation at the FTT’s hearing of the appeal.  IICUS also applied formally to be added as a party to the appeal by an e-mail sent on 30 October 2010.

 

11. On 2 November 2010 the FTT office responded to IICUS by e-mail stating that (a) a copy of the bundle would be sent to IICUS as soon as possible; (b) the FTT Judge had agreed to add IICUS as a party to the appeal “for the purpose of making representations in relation to the draft decision”; (c) time had been extended to 17 November 2010 for IICUS’s final submission; and (d) “You are welcome of course to instruct lawyers to assist you in making representations but at the moment it is not the intention of the Tribunal to hold any kind of hearing before making its final decision” (paragraph 4).

 

The First-tier Tribunal’s decision and the grant of permission to appeal

 

12. On 23 November 2010 the FTT finalised its decision, which was issued to all the parties on the same day under reference EA/2010/0118.  Mr Ray’s appeal was allowed and a new Decision Notice substituted for that issued by the Commissioner.  The FTT concluded that the disputed information should have been released to Mr Ray, ruling that there was a very strong public interest in disclosure such that the absolute exemption under section 41 did not apply.  The FTT also held, in relation to the qualified exemption under section 43, that any potential prejudice to commercial interests would be outweighed by the public interest in disclosure.

 

13. IICUS then appealed to the Upper Tribunal.  It set out wide-ranging grounds of appeal, which were for the most part directed towards the facts and the merits of the underlying dispute, although there was some reference to the FTT’s application of the public interest test under section 41.

 

14. I gave IICUS permission to appeal on the inter-related grounds that there had arguably been a breach of rule 32(1)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness or natural justice.  When giving permission to appeal, I expressly deferred consideration of IICUS’s own grounds for seeking to appeal insofar as they went beyond this issue. 

 

 

The parties and their submissions to the Upper Tribunal

 

15. IICUS is the appellant in these proceedings before the Upper Tribunal.  The Information Commissioner is the First Respondent, the public authority is the Second Respondent and Mr Ray, the requester and the appellant before the FTT, is the Third Respondent.

 

16. IICUS understandably agrees with the point identified in paragraph 14 above.  IICUS also makes extensive submissions on the merits of the underlying dispute and of the substantive decision of the FTT. I do not need to address those wider arguments as part of this appeal.  The place for those points to be ventilated and explored is at the First-tier Tribunal.

 

17. The Information Commissioner supports the appeal by IICUS on the ground identified in paragraph 14 above and invites the Upper Tribunal to set aside the FTT decision and remit it to be re-heard by a fresh tribunal.

 

18. The public authority has declined to make a submission on this appeal to the Upper Tribunal.  Its position is that Companies House has never purported to take sides in the matter, and that the public authority’s sole concern is to defend the Registrar’s decision not to release the confidential information, which is not the issue presently before the Upper Tribunal.

 

19. Mr Ray understandably resists the appeal by IICUS, arguing that the FTT’s decision was well-founded.  His submissions focus on the merits of the substantive dispute, not the issue identified in the grant of permission to appeal. His only comment on that specific issue is that IICUS was not disadvantaged in any way by the absence of an oral hearing, as it had been given the opportunity to make further representations when advised of the FTT’s provisional decision.

 

20. IICUS and the Information Commissioner both consent to the Upper Tribunal issuing a decision without reasons.  Mr Ray asks for the Upper Tribunal to give reasons for its decision.  I agree that that is appropriate in this case.  There is, however, no need for an oral hearing before the Upper Tribunal as that will simply delay matters further.  I am also entirely satisfied that the matter can be determined on the written submissions alone and without a hearing.

 

The Upper Tribunal’s analysis

 

21. My conclusion is that the FTT’s decision involved a breach of rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness. On that basis, and that basis alone, I set aside the tribunal’s decision and remit the case to be re-heard by a differently constituted FTT.  I stress that I am making no findings nor expressing any views on whether or not the previous FTT arrived at the correct outcome in terms of the application (or not) of the exemptions under sections 41 or 43.  I am also certainly not expressing any views or making any findings on the much wider issues relating to the underlying dispute which were identified, but rightly put to one side, by the previous FTT at paragraph 9 of their Decision.  In other words, IICUS’s appeal to the Upper Tribunal succeeds, but on a procedural issue unrelated to the merits of the competing arguments about whether or not disclosure should have been ordered.

 

22. Rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976) provides as follows (neither rule 32(2) or (3) is relevant to the present matter):

 

“Decision with or without a hearing

32.—(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—

(a) each party has consented to the matter being determined without a hearing; and

(b) the Tribunal is satisfied that it can properly determine the issues without a hearing.”

 

23. Rule 1(3) defines the term “hearing” in the following terms:

 

“‘hearing’ means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;”.

 

24. Given the chronology set out above, I agree with IICUS and the Information Commissioner that there was a breach of rule 32(1)(a) in this case.  I have reached that conclusion for the following reasons.  First, IICUS’s letter of 29 October 2010 (see paragraph 10 above) made it perfectly clear that it wished to be legally represented at the final hearing.  Second, the FTT’s final decision of 23 November 2010 made no reference to that request, only mentioning that IICUS’s written representations had been considered.  Third, the FTT’s decision also made no reference, explicitly or implicitly, to the test in rule 32(1).  It was not enough that the FTT was satisfied that it could properly determine the issues without a hearing; it had to hold a hearing unless “each party has consented to the matter being determined without a hearing”.  Plainly, IICUS had not so consented.  Fourth, the FTT office’s e-mail sent on 2 November 2010 (see paragraph 11 above) implied that the FTT did not have rule 32(1) in mind, given that the statement that “You are welcome of course to instruct lawyers to assist you in making representations but at the moment it is not the intention of the Tribunal to hold any kind of hearing before making its final decision” was plainly inconsistent with that statutory requirement.

 

25. I have considered the rather technical argument that at the time that IICUS made its request to be legally represented at the final hearing it was not actually a party to the proceedings and so on that basis rule 32(1)(a) might not apply.  I agree with the Information Commissioner that this is not an attractive argument.  First, rule 32(1)(a) makes no reference to the stage at which the party concerned has made the request.  Second, it was clear that IICUS wished to resist the appeal and to make its points at a hearing. Third, such a narrow interpretation of rule 32(1) would also be wholly inconsistent with the overriding objective in rule 2 to deal with cases fairly and justly, which includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (rule 2(2)(c)).

 

26. Putting the requirements of rule 32 to one side, I also agree with the Information Commissioner’s submission that the broader principle of procedural fairness appeared to have been compromised.  IICUS had made clear its wish to engage with the appeal.  The information which Mr Ray sought was information which had been provided by IICUS, apparently in confidence, to the public authority. In those circumstances it was incumbent on the FTT to join IICUS as a party and to hear what it had to say before reaching a decision, provisional or otherwise.  While the Information Commissioner quite properly makes no suggestion of any impropriety on the part of the original FTT panel, the procedure adopted could readily give rise to the impression that the matter had been pre-judged.

 

 

The issuing of draft decisions

 

27. The normal practice of courts and tribunals, where judgment has been reserved rather than given on the day, is simply to issue a final reasoned decision.  There are certain circumstances in which a court or tribunal may issue a decision other than in its final form (a “draft decision”).  This will be the exception rather than the rule but may be justified in the special circumstances of a particular jurisdiction.

 

28. In this context the First-tier Tribunal has issued a Practice Note, entitled Protection of Confidential Information in Information Rights Appeals before the First-tier Tribunal in the General Regulatory Chamber on or after 18 January 2010, which is available on its public website at http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/information-rights/appeals/how-to-appeal.htm. This Practice Note states as follows at paragraph 33 (and omitting a footnote):

 

“33. To help ensure that no confidential information is released through the Tribunal’s decision, it is good practice to send a draft of the decision to the originator of the confidential information, which will usually be the public authority and the Information Commissioner if he has already had sight of the information. It will usually be sent to solicitors, lay clients and their advisors under an embargo so that that they have the opportunity to indicate if any confidential information is contained in the decision and at the same time ask them to check for any clerical mistakes or accidental slips or omissions. Usually only a short period of 3 to 5 days is given for the exercise. After having given those parties the opportunity to indicate whether any confidential information is contained in the open part of the decision, the Tribunal will often show the open part of the decision to the other parties for them to check for any clerical mistakes or accidental slips or omissions. Recipients must ensure that neither the draft decision nor its substance is disclosed more widely or used in the public domain before it is finalised and then promulgated (signed by the Judge and published).”

 

29. In the present case the FTT’s draft decision was issued for two purposes, namely “in order to allow IICUS to make any representations they wish and the Commissioner and DBIS to draw to our attention any factual errors or inappropriate disclosures”.  This approach was less than optimal.  The tribunal’s draft decision was accordingly being sent to the Commissioner and DBIS on the basis that it was essentially the final decision but that those parties were being given the opportunity to check for any inappropriate disclosure and for any typographical, spelling and minor factual errors which may have escaped the FTT’s collective eye.  At the same time, and somewhat inconsistently, it was being sent to IICUS on the basis that it was at most a rebuttable draft or provisional decision which could be changed in the light of submissions on the substantive issued made by IICUS. This inconsistency suggests that the proper course would have been to ensure that IICUS, which had asked for, had anticipated and was entitled to an oral hearing, had had the opportunity to make their submissions before any decision was reached and before any draft was released.

 

30. The approach taken by the FTT in this case has unfortunately only encouraged further confusion.  I note that the FTT file includes a 5-page letter from the Treasury Solicitor, on behalf of the public authority, dated 17 November 2010 in response to the embargoed copy of the draft decision.  The first page of this letter draws attention to various minor typographical and other errors.  The remaining four pages are a detailed critique of the tribunal’s reasoning and conclusions in its provisional findings.  In the light of the parallel invitation to IICUS to make representations, it is perhaps not surprising that the Treasury Solicitor seized that opportunity.  Yet there is no evidence that the Treasury Solicitor’s comments were copied to any of the other parties either by the sender or by the FTT office itself.  The scope for a further potential breach of the principles of natural justice is obvious.

 

31. In this context it is important to take heed of the warnings of the superior courts as to the procedure to be adopted when draft decisions are issued.  As Smith L.J. observed in Egan v Motor Services (Bath) Ltd. [2007] EWCA Civ 1002, “circulation of a draft is not intended to provide counsel with an opportunity to re-argue the issues in the case” (at paragraph 50).  The same point was made by the House of Lords in Edwards v Environment Agency [2008] UKHL 22.  Furthermore, in Robinson v Bird (2004) The Times, January 20, May LJ specifically warned as follows:

“It scarcely needed saying that judges should not send draft judgments to the parties' legal representatives in accordance with the practice statements if they themselves perceived a risk that they might want to change them materially before they handed them down.”

 

Conclusion

32. For the reasons explained above, I allow this appeal. 

 

 

 

 

Signed on the original Nicholas Wikeley

on 20 May 2011 Judge of the Upper Tribunal