Upper Tribunal (Administrative Appeals Chamber)

You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> The Secretary of State for Defence v LA (AFCS) [2011] UKUT 391 (AAC) (27 September 2011)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2011/391.html
Cite as: [2011] UKUT 391 (AAC)

[New search] [Printable RTF version] [Help]

The Secretary of State for Defence v LA [2011] UKUT 391 (AAC) (27 September 2011)
War pensions and armed forces compensation
Procedure

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

Permission is given to the Secretary of State for Defence to appeal against the decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) dated 20 July 2011.

That decision did not involve the making of an error on a point of law.

Pursuant to rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) and with the consent of counsel for both parties, I shorten the time for applying to the Upper Tribunal for permission to appeal to the Court of Appeal to 14 days from the date when this decision is issued.

Reasons for Decision

A. the issue and how it arises

1. These cases concern the case management of 16 war pension appeals currently before the First-tier Tribunal. The claims are based on exposure to the nuclear fallout from the tests carried out by the United Kingdom in the Pacific and Australia in the 1950s. Most are brought by the servicemen who were exposed, but at least one has been brought by a widow. The papers in those appeals are extensive and raise a number of issues of causation. There is also civil litigation, which concerns me only by way of background.

2. Tribunal Judge Stubbs has management of the appeals in the First-tier Tribunal. In view of the content of some of the material that might be relevant, the Secretary of State has made arrangements for some of the representatives to be given clearance to see classified documents. Judge Stubbs has directed that the claimants’ representatives be allowed to inspect one document, known as Document 10. This is an index that merely identifies other documents by title. The Secretary of State has applied for permission to appeal against that decision.

B. the oral hearing

3. Upper Tribunal Judge Mesher directed an oral hearing on that issue. I took the hearing on 19 September 2011. Mr Adam Heppinstall of counsel represented the Secretary of State for Defence. Mr Mark James of counsel, instructed by Rosenblatt Solicitors, represented the claimant. I am grateful to them both for their written and oral arguments.

C. What has happened

4. Judge Stubbs examined a quantity of material held by the Secretary of State. On 20 December 2010, the First-tier Tribunal wrote (no doubt on his instruction) inviting the Secretary of State ‘to consider reviewing the documents identified [which included Document 10] under the following headings to check whether they have already been disclosed in the High Court proceedings and/or these Ionising Radiation appeals and if not to consider them for relevance and subsequent disclosure. It is possible, from your and your Counsel’s knowledge of the issues in these appeals, that there may be other subject headings which should also be reviewed.’ The Secretary of State replied on 10 January 2011, agreeing in principle and suggesting some further headings. The tribunal’s replied on 14 January 2011 that the judge would not issue a direction until he heard from the Secretary of State.

5. On 4 February 2011, the Secretary of State wrote: ‘We have been advised by AWE [Atomic Weapons Establishment] that there are 283 documents indexed under the various headings relevant to these appeals found in the cumulative index – document 10 ...’ The letter explained that these had already been considered and concluded: ‘We do not therefore propose to undertake any further work with regard to these documents.’ The tribunal replied on 22 March 2011 that the judge wanted the 283 documents individually inspected for relevance, explaining that he was not satisfied with the High Court disclosure exercise. On 9 May 2011, the Secretary of State wrote to say that counsel had now reviewed the list of documents and identified 31 that might be relevant. The remainder were ‘mainly of academic or research works which do not address matters relevant to the facts of the appeals.’ The final reply came on 9 June 2011:

We are pleased to report that Counsel has now completed his review of documents arising out of Document 10. We can report that no relevant documents have been identified. As initially reported by AWE, the Document 10 index is of theoretical scientific papers and not of documents reporting or discussing what actually happened at the material tests.

We therefore propose to make no disclosure arising out of this exercise and now consider this matter closed.

6. On 8 July 2011, Judge Stubbs gave five directions, including:

Document 10 should be disclosed to … when they inspect documents on Monday 11 July 2011 so that Rosenblatt can make reasoned requests for disclosure of individual documents.

Rosenblatt had not until this time had clearance to inspect restricted documents. As a result, the correspondence between the tribunal and the Secretary of State and the inspection process undertaken by counsel had been unknown to them. The judge refused to set aside his direction on 20 July 2011 and ordered disclosure of Document 10 to appropriate representatives of the claimants. He gave his reasons for his directions on 22 July 2011. In paragraph 4, he wrote that he had ‘serious concerns about the Secretary of State’s disclosure of documents.’ In paragraph 5, he explained why his concerns had continued. I summarise these, as Mr Heppinstall criticised them:

(a) The tribunal had already rejected the Secretary of State’s assessment of relevance of some documents, including Document 30.

(b) There might be other documents that had not been disclosed by the Secretary of State for the reasons relied on in respect of Document 30.

(d) The Secretary of State had wanted to redact documents in the public domain.

(e) It appeared that documents were given the highest classification for any of their contents, despite the fact that they contained material that might be relevant and did not justify that classification.

(f)-(i) These relate to the Minor Trials.

7. For completeness, Judge Bano refused permission to appeal to the Upper Tribunal.

D. appeals against case management decisions

8. In order to succeed, the Secretary of State must satisfy two hurdles. First, the Secretary of State must show that ‘the making of the decision concerned involved the making of an error on a point of law’ (section 12(1) of the Tribunals, Courts and Enforcement Act 2007). Second, the Secretary of State must additionally show that it is appropriate for the Upper Tribunal to intervene in the case management decisions of the First-tier Tribunal before their effect on the outcome of the appeals before that tribunal is known. This is particularly relevant in these cases, as all that Judge Stubbs ordered was disclosure so that the claimants’ representatives could consider whether to apply to inspect any of the documents. It is possible that they might not apply or that the tribunal might reject their application. Challenges in such circumstances may turn out to be unnecessary in the light of subsequent developments.

E. the First-tier Tribunal rules of procedure

9. The procedure before the First-tier Tribunal is now governed by the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Scheme Chamber) Rules 2008 (SI No 2686). The relevant provisions are common across all chambers of the First-tier Tribunal. All but rule 23(4) are common to both the First-tier Tribunal and the Upper Tribunal. They are:

2 Overriding objective and parties’ obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.

5 Case management powers

(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—

…

(d) permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party; …

7 Failure to comply with rules etc.

(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—

(a) waiving the requirement;

(b) requiring the failure to be remedied;

(d) exercising its power under paragraph (3).

14 Use of documents and information

(1) The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party (“the first party”) considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (“the second party”), the first party must—

(a) exclude the relevant document or information from any documents that will be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal’s consent.

15 Evidence and submissions

(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Tribunal may give directions as to—

(a) issues on which it requires evidence or submissions;

(b) the nature of the evidence or submissions it requires; …

(2) The Tribunal may—

(a) admit evidence whether or not—

(i) the evidence would be admissible in a civil trial in England and Wales; or

(ii) the evidence was available to a previous decision maker; or

(b) exclude evidence that would otherwise be admissible where—

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii) it would otherwise be unfair to admit the evidence.

(3) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.

23 Responses and replies

…

(4) The decision maker must provide with the response—

…

(b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise; …

F. analysis of the rules of procedure

10. Mr Heppinstall argued that there was a presumption in favour of the Secretary of State’s disclosure of relevant documents. Any presumption must be consistent with, and necessary given the terms of, the tribunal’s rules of procedure. That is why I begin by analysing the provisions I have just set out. I then turn to the details of Mr Heppinstall’s argument.

11. Rule 23(4)(b) imposes a duty on the decision-maker (the Secretary of State) to produce documents. It is framed in terms of possession and relevance. The decision-maker must provide copies of all relevant documents in his possession. Both of those components may cause difficulties.

12. Possession. The decision-maker may not be aware that he possesses documents. Given the vast amount of documentation in these cases and the conditions of security under which they are held, it would be surprising if the decision-maker had even the vaguest inkling of much of the documentation in the Secretary of State’s possession. If the decision-maker only discovers particular documents later, they must be copied to the tribunal. The duty is not expressed as a continuing one, but this additional element must be implied. Otherwise, the duty to provide ‘copies of all documents relevant to the case in the decision maker’s possession’ would become a duty to provide ‘copies of all documents relevant to the case in the decision maker’s possession to his knowledge’. The decision-maker is under a duty to help further the overriding objective and to co-operate under rule 2(4). That duty both supports the implication into rule 23(4)(b) and provides an independent basis for a duty that continues after the decision-maker has responded to the appeal. If any issue of breach of duty arises, the tribunal must decide what, if any, action it is just to take under rule 7. One response might be to use rule 15 in order to limit the issues or evidence on which the decision-maker could rely.

13. Relevance. The decision-maker may not realise that a document is relevant. Relevance is determined by reference to the issues that arise for decision. In theory, the process is linear: the claimant’s letter of appeal identifies the issues and the decision-maker can identify the relevant documents when responding. The practice is more organic: issues may arise, develop or disappear in the course of the proceedings. Claimants do not, and may not be able to, state their grounds of appeal precisely and comprehensively. The tribunal also may identify issues in its inquisitorial role. The result is that the relevance of documents may change as the proceedings develop. In this context, the duty must again be a continuing one, for the reasons I gave in relation to possession.

14. The tribunal has power by direction under rule 5(3)(d) to order the decision-maker to produce documents. This power may be used to particularise or supplement the specific duties under the rules. It is particularly useful as a way to resolve disputes about possession or relevance. Such disputes are ultimately for the tribunal to decide. If it were a matter for the parties, the duty under rule 23(4)(b) would be changed from a duty to provide ‘copies of all documents relevant to the case in the decision maker’s possession’ to a duty to provide ‘copies of all documents in the decision maker’s possession that he (reasonably) believes to be relevant to the case’. A duty in those terms would also be inconsistent with rule 15, which gives the tribunal power to give directions on the issues and to admit or refuse to admit evidence.

15. There are two particular concerns that arise in relation to some of the material in this case: nationality security and volume. The powers under the rules allow the tribunal to deal with both. As to nationality security, the tribunal has power to limit disclosure under rule 14. It does not seem to have been drafted with security issues in mind. It would be necessary to satisfy the tribunal that disclosure to specific persons would be likely to cause harm. That could be difficult to establish. Disclosure generally might put national security at risk, but would disclosure to the claimants in these cases be likely to cause serious harm to anyone? Are they likely to misuse the information? If the rule is not wide enough to deal with such exceptional cases, the tribunal could use its general power under rule 5(1), read in conjunction with the overriding objective, to make appropriate directions. As to volume, the tribunal can use its general management power under rule 5(1) and its powers under rule 15(1) and (2) to restrict the material that it will consider. The tribunal has to seek to give effect to the overriding objective whenever it applies those rules. That requires the tribunal to take account of proportionality (rule 2(2)(a)) and to avoid delay (rule 2(2)(e)).

G. the Secretary of State’s argument and why i reject it

16. Mr Heppinstall did not argue that the CPR should be read into the tribunal’s rules of procedure. He did, though, argue that there was scope within the tribunal’s procedure for a presumption on the basis of G.E. Capital Corporate Finance Group Ltd v Bankers Trust Ltd [1995] 1 WLR 172. In summary, the presumption is that a party’s expressed view on relevance must be accepted unless there are grounds to believe from what that party has said in other documents or from the circumstances of the case that it is incomplete.

17. I reject the argument that there is such a presumption for the following reasons.

18. First, it is unclear when the presumption arises. Mr Heppinstall did not argue that it arose as a result of the nature of the material involved. He limited it to cases where there was a large volume of material. No one could doubt that this is such a case. However, the volume of material in these cases is unprecedented in my experience. It is not appropriate to introduce special rules to deal with unique circumstances, especially if they can be dealt with under the rules. That leaves open the issue of the volume that might give rise to the presumption in other cases. Mr Heppinstall’s vague formulation leaves that unclear.

19. Second, the terms of the presumption are inconsistent with the Secretary of State’s duty under rule 23(4)(b). As I have said, that duty is defined in terms of possession and relevance. It is not defined by reference to the Secretary of State’s knowledge of possession or opinion on relevance. The presumption proposed would effectively change the rule to require the Secretary of State to produce documents which the decision-maker was aware of and considered (perhaps on reasonable grounds) to be irrelevant.

20. Third, my second ground is exacerbated by the difficulties of rebutting the presumption. That is difficult at best and especially difficult in cases where national security affects the information available to the other party.

21. Fourth, the combined effect of my second and third grounds is inconsistent with the inquisitorial nature of the First-tier Tribunal proceedings. The effect of the presumption, as Mr Heppinstall quite openly admitted, was to give one party to the proceedings (at least presumptive) control over disclosure, as in civil litigation.

22. Fifth, the First-tier Tribunal has ample powers to control the conduct of proceedings without the need for a presumption. I accept that there is the potential for the effort required of parties to become disproportionate. As Knight Bruce V-C recognised in Pearse v Pearse (1846) 63 ER 950 at 957:

Truth, like all good things, may be loved unwisely - may be pursued too keenly - may cost too much.

The First-tier Tribunal has sufficient powers to prevent its proceedings imposing an excessive burden on one party. In particular, it has its general case management power in rule 5(1) and its specific powers to limit the issues under rule 15(1) or to refuse to admit evidence under rule 15(2). The application of those powers must take account of the overriding objective, which embodies the Vice-Chancellor’s insight.

23. Both counsel recognised that it is often simpler to disclose documents even if they are irrelevant. I accept Mr Heppinstall’s argument that this is not appropriate given the nature of the material in this case.

H. judge stubbs’ direction and concerns

24. I have summarised these reasons above (at [6]). Mr Heppinstall criticised those reasons at the hearing. He said that: (a) and (b) were just a difference of view between the Secretary of State and the tribunal; (c) was a misunderstanding based on a badly drafted letter; (d) arose from an administrative error; (e) was a misunderstanding; and (f)-(i) were matters for a future directions hearing. I do not accept those criticisms. The judge was concerned with a case management direction in circumstances where he was unwilling to trust the Secretary of State to have made full disclosure. He formed that view for the reasons he gave. The fact is that the incidents to which he referred had occurred. Whatever their explanations, he was entitled to be at least sceptical that similar problems might occur in the future.

25. It is important not to take those concerns out of context. That context is set, in part, by rule 2, which requires cases to be dealt with fairly and justly. That includes the principles of natural justice and the Convention right to a fair hearing. The claimants had been excluded from the exchanges between the tribunal and the Secretary of State, as their representatives had not been cleared to see the documents. It is inconceivable that the judge would have proceeded as he had if those representatives had been entitled to see the documents in early 2011. What he was doing was merely adding the essential element of fairness by allowing the claimants’ representatives the same chance as the Secretary of State to ask the tribunal to rule on particular items indexed in Document 10. As I have said, it is the tribunal who is the ultimate arbiter of whether documents should be disclosed or not.

I. why i gave permission but dismissed the appeal

26. For those reasons, I have found no error of law in Judge Stubbs’ decision. Nevertheless, I have given permission to appeal for two reasons. First, the issue raised was one that was arguable and justified the consideration of the Upper Tribunal. Second, as Mr Heppinstall himself submitted, at least some of the cases are longstanding and the sooner they are decided the better. If I had refused the Secretary of State permission, the route of challenge would have been by way of judicial review in the Administrative Court followed by an appeal to the Court of Appeal. By giving permission and dismissing the appeal, the route of challenge is by way of appeal to the Court of Appeal. That means that my approach should reduce the time before the appeals are heard by the First-tier Tribunal. That is also why, by consent, I have shortened the time in which the Secretary of State may apply for permission to appeal to the Court of Appeal.

Signed on original
on 27 September 2011

Edward Jacobs
Upper Tribunal Judge