Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL                 Appeal No: GIA/336/2013

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

            The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal dated 9 October 2012 under reference EA/2012/0147 involved an error on a point of law and is set aside.

 

This decision is made under section 12(1) and 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007.

 

DIRECTIONS

 

 

Subject to any later Directions by a Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)               There shall be an oral hearing before the First-tier Tribunal of the Information Commissioner’s application to have the appellant’s appeal stuck out on the basis that it has no reasonable prospects of success.

 

(2)              The appellant will be entitled to attend that hearing as will the Information Commissioner and the Department of Business, Innovation and Skills.    

 

(3)              The First-tier Tribunal should have regard to the points made below.

 

 

 

 

 

 

 

 

 

Oral hearing

Appearances:                       The appellant appeared by himself.

Christopher Knight of counsel, instructed by Helen Davenport, for the Information Commissioner.         

 

 

REASONS FOR DECISION

 

      

Introduction

 

1.                   This is another appeal in which the Upper Tribunal is being asked to grapple with the approach of a First-tier Tribunal to its power to strike out an appeal on the basis that it has no reasonable prospects of success, and in particular whether an oral hearing ought to have been afforded to the appellant before any decision on the strike out application was made.

 

2.                  I apologise to the parties for the period of time it has taken me to reduce this decision to writing.

 

Decision in Summary

 

3.                  In my judgment the First-tier Tribunal erred in law in its approach to deciding the strike out application without a hearing.  In particular, the First-tier Tribunal erred in law in not holding a hearing on the strike out application and/or in failing to give any reasons in its decision as to why it was appropriate to decide the strike out application without a hearing. Given this, I consider it is appropriate to direct that the strike out application ought to be reconsidered at a hearing. In the circumstances, I have not considered it necessary to address any other arguments or areas of law that arose and on which I was addressed.      

 

 

 

Relevant background – factual

 

4.                  Before April 2011 the appellant tendered to Business Link West Midlands (“Business Link”) to deliver marketing workshops. Business Link was a wholly owned subsidiary of Advantage West Midlands. The latter was a Regional Development Agency.  Business Link closed to the public in November 2011 and went into voluntary liquidation in February 2012. Advantage West Midlands had assumed responsibility for Business Link’s operations at the time of its closure to the public. However, all Regional Development Agencies were closed on 31 March 2012 and were abolished as statutory entities on 1 July 2012. The Department for Business, Innovation and Skills has since then taken on responsibility for on-going matters relating to Advantage West Midlands (and thus Business Link).  It is not now disputed that Business Link was a public authority subject to the Freedom of Information Act 2000 (“FOIA”).       

           

5.                  The appellant’s application to run the workshops was unsuccessful. In April 2011 he wrote to Business Link and asked to be provided with certain information relating to the tendering process. He asked:

 

 “1.            What was the composition of the evaluation panel which received and scored my tender for delivery of the marketing workshops, in terms which include the name, job title and the material experience and qualifications of each?

 

2.                   What exactly were the tender evaluation guidelines, including the weighting of the criteria and scoring rules, to which the panel worked?

 

3.                   What exactly was the guidance including approval, regarding its processing of such tenders, which the Business Link obtained from the consultant referred to in its letter of 7 April 2011 (copy attached)?

 

4.                   Who was the consultant, and what were his/her material qualifications and experience?”

  

          

6.                  Some of the information sought was provided to the appellant by Business Link. However it refused to provide the information sought under questions 1 and 4 on the basis that to do so would breach the provisions of the Data Protection Act 1998.  It is implicit in this refusal that Business Link ‘held’ this information.

 

7.                  The appellant then made complaint to the Information Commissioner about the way his requests had been dealt with.  The Information Commissioner focused on what information was ‘held’ by Business Link at the time of the request (per section 1 of the FOIA) and on the appropriateness of the application of section 40(2) of the FOIA to the remaining requested information. In the course of correspondence between the Information Commissioner and the Department for Business, Innovation and Skills, during the former’s investigation of the complaint, the latter said that the information relating to question 4 above (i.e. the consultant’s details) had been destroyed and that it was withholding the information asked for under question 1 pursuant to s.40(2) of the FOIA.   

 

8.                 As to information held, the Information Commissioner accepted the final submissions made by the Department of Business, Innovation and Skills on question 1 above: submissions which differed materially from the way the public authority had previously sought to argue this point. The final submission was that, in respect of question 1 above, the appellant’s tender application had not made it through an initial scoring sift, and that the selection panel had not been involved in that sift and had only become involved at stage two of the selection process which the appellant had not reached.  On this basis the Information Commission accepted that this information was not held under section 1 of the FOIA as it was not part of the scope of the request (because the evaluation panel had not scored the appellant’s tender application).    

 

9.                  On the appellant’s question 4, and information held, the final submission of the public authority made to the Information  Commissioner was to the effect that it held the name of the consultant (contrary to what it had previously said) but that it did not hold any information relating to the material qualifications or experience of the consultant. The Information Commissioner accepted that this was the case, although he expressed his concern as to the conduct of the public authority in responding to matters raised in the course of his investigation of the appellant’s complaint.

 

10.              As to the application of section 40(2) of the FOIA – personal data exempt from disclosure if disclosure would breach any of the data protection principles contained within the Data Protection Act 1998 – the Information Commissioner decided that the consultant’s name (and, perhaps curiously, his qualifications and experience, notwithstanding the finding that such were not held by the public authority) clearly constituted his personal data as he could be identified from them. He further concluded that it would not be fair to release the name of the consultant and that no schedule 2 condition applied to allow it to be released.

 

11.               The appellant then appealed the decision of the Information Commissioner to First-tier Tribunal (Information Rights) on the form provided. On page one of this form set out in the top left hand box was the following information – ‘Please read the guidance “Guide to completing the Notice of Appeal/Application” before completing this form’.  I will return to that Guide below.

 

12.              The appellant’s grounds of appeal were extensive. In summary they were:

 

(i)                the Information Commissioner was wrong to issue the decision to the Department for Business, Innovation and Skills as Business Links still existed and had a director in place. The effect of the decision was to relieve Business Links “of all FOIA responsibility”;

(ii)             it had taken four months and considerable effort on the appellant’s part to get Business Links to accept it was a public authority for purposes of the FOIA;

(iii)           the Information Commissioner was wrong to imply that Business Link had followed “due process” in tendering. As its title suggests, this was a composite ground.  In part, the ground of appeal here includes that the Information Commissioner was relying as fact on information provided by the Department of Business, Innovation and Skills and Advantage West Midlands when those ‘factual’ matters were refutable, and he had not sought the views of the appellant on the same;

(iv)            the Information Commissioner was wrong to disallow the appellant’s enquiry into Business Link’s tender evaluation panel.;

(v)              the Information Commissioner was wrong to agree that the consultant’s details ought not to be disclosed;

(vi)            Business Link’s ‘unlawful’ document-handling attracts only passing comment by the Information Commissioner. It is apparent from the body of this ground that it was, in part at least, concerned with Business Link no longer holding certain relevant information; and

(vii)         the Information Commissioner’s decision notice was not clearly structured. This is really a challenge to the adequacy of the reasoning in the decision notice. The appellant refers to “discursive treatment” of the appellant’s requests in the decision notice and says it made for “very difficult reading”. This ground concludes with the appellant saying that he had “included, here, my immediate concerns, and trust that I may be allowed by the Tribunal to make further comment on the Notice in due course”.

13.              After setting out these grounds, the appeal form asked, inter alia, in section 8 about the Type of Hearing and Venue.  I set the relevant part of the form out immediately below.

 

8. Type of Hearing and Venue The Tribunal can consider an appeal on the papers only or hold a hearing. The other parties in an appeal can also express a preference. If all parties agree, the Tribunal can consider the appeal on the papers provided. If all parties do not agree, there will be a hearing. Please indicate which option you would prefer by ticking the box, below. Please note: whichever method is preferred, a full Tribunal Panel (a legally qualified Judge and two non legal members) will consider the appeal.

Paper Hearing:

Oral Hearing:

Please note that oral hearings will usually take place in London unless the parties request a hearing elsewhere, please indicate your location preference in the box above. Parties will be informed in writing, by post or email, as soon as a hearing date has been set.

 

14.              I have been unable to add the relevant boxes next to Paper Hearing and Oral Hearing, but it is not disputed that the appellant ticked the latter. The underlining is in the original form as completed by the appellant.  This document, on the face of it, contained a clear representation that if one party to an appeal chose an oral hearing (as the appellant had done), there would be an oral hearing.

 

15.               The appeal form is not to be read on its own.  The form requests on its first page that would be appellants should read the guidance Guide to completing the Notice of Appeal/Application before completing the form.  Having read that document, as far as I can see it says no more (or less) on the issue of when an appeal will be subject to an oral hearing than the Notice of Appeal form does.

 

16.              When received, the appellant’s Notice of Appeal led to an email response being issued to him by the clerk to the tribunal on 17 July 2012.  This told him that his papers had been forwarded to the Information Commissioner, who had 28 days to respond, and that a copy of that response would be sent to the appellant. This, as far as I can see standard, email further told the appellant that if he wished to reply to the Information Commissioner’s response he should do so within fourteen days. It continued “You may not wish to reply at this stage: you will be given the opportunity later to make further submissions. If you do not wish to reply, please let the Tribunal Office and the [Information Commissioner] know as soon as possible”. The email then referred to its website page as a potential source of information and said that it was attaching its Guidance Notes for Individuals Representing Themselves (2011) “which explain how an appeal progresses through the Tribunal”.  I will come to those Guidance Notes shortly.  

 

17.               The Information Commissioner then filed his response to the appeal on 14 August 2012. He opposed the appeal. At the start of his response the Information Commissioner: (i) invited the tribunal to strike out the appellant’s sixth ground of appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the TPR”) on the basis that the tribunal did not have jurisdiction in relation to this ground of appeal; and (ii) to strike out the remaining grounds of appeal on the basis that they had “no reasonable prospects of success” (per r.8(3)(c) of the TPR).

 

18.              In respect of whether the public authority in fact “held” some of the information requested, the response set out that the Information Commissioner had accepted the arguments put forward by the public authority that it held no further information in respect of the appellant’s first, second and third requests nor did it hold the information about the consultant’s qualifications and experience in respect of the fourth request.  This part of the submission continued:

 

“The [Information] Commissioner will say that he is required to determine whether or not a public authority holds the requested information on the civil standard of proof, namely, the balance of probabilities.  In this case, and based on the explanation provided by [the public authority], the Commissioner was satisfied that it did not hold the requested information as described.”

 

I simply note at this stage that this response, at least on its face, did not grapple with the appellant’s complaint that he had not had the opportunity to contest the factual basis for this finding.         

 

19.              As to disclosing the consultant’s name and section 40(2) of the FOIA, the Information Commissioner’s response repeated that it would be unfair to disclose the name. He accepted that there was a legitimate public interest in members of the public being able to trust the tendering process as part of the general legitimate public interest in openness and transparency, but this did not outweigh the reasonable expectations of the consultant that his name should not be disclosed. 

 

20.             The Information Commissioner then addressed each of the appellant’s grounds in turn (see paragraph 12 above).

 

(i)                Ground 1 - should not have served decision on Department for Business, Innovation and Skills: The Information Commissioner said he would say that he was informed by the Department of Business, Innovation and Skills that it had assumed responsibility for this specific matter and it was open and reasonable for him to serve the decision notice on the said Department in light of its specific confirmation that it had assumed responsibility, and therefore this ground of appeal had no prospect of success. I note that in responding to this ground the Information Commissioner did not grapple with the implications, if any, of the appellant’s assertion that Business Link still existed and had a director in place.   

(ii)             Ground 2 – it took appellant four months to get Business Link to accept it was a ‘public authority’ under the FOIA: The Information Commissioner’s case here was that this did not affect the substance of the decision made and so should be struck out as having no reasonable prospects of success.

(iii)           Ground 3 – Information Commissioner wrong to decide Business Link had followed ‘due process’ in tendering: The Information Commissioner saw this ground as encompassing three aspects.  I refer only to the first. This was that the appellant wasn’t afforded an opportunity to comment on Business Link and Advantage West Midlands contributions so as to seek to refute them.  The Information Commissioner submitted that he would say “that without specific details as to what the Appellant argues is factually incorrect, he is unable to comment further”. The Information Commissioner contended that this ground, too, had no reasonable prospects of success.

(iv)            Ground 4 – Information Commissioner wrong to disallow appellant’s enquiry into make up of evaluation panel: The Information Commissioner argued that he had not disallowed the enquiry.  What he had held, however, was that the evaluation panel members had initially been erroneously included within the scope of the appellant’s request (given what Business Link and Advantage West Midlands had said), but when the Department of Business, Innovation and Skills became the effective respondent he found that this was in error because the appellant’s tender had never in fact reached the panel. There was therefore no such information “held” by the public authority in relation to the appellant.  Further, after reviewing the relevant files and scores against individual tenders, the public authority was unable to say who conducted the initial scoring of the appellant’s bid and so did not hold this information either. The Information Commissioner accepted that the public authority did not hold this information. In the light of this, this ground also had no prospect of succeeding.

(v)              Ground 5 – Information Commissioner wrong to hold that consultant’s details ought not to be disclosed:  The Information Commissioner’s response here was that he had carried out a rounded analysis of all relevant factors and these led him to conclude that it would not be fair to disclose the consultant’s personal data in this case.

(vi)            Ground 6 - Business Links ‘unlawful’ document handling: The Information Commissioner submitted that the exercise of his enforcement powers was not within the jurisdiction of the First-tier Tribunal.

(vii)         Ground seven - Reasons inadequate: The Information Commissioner argued here that this ground did not materially affect the substance of his decision notice, the decision notice was in “accordance with the law”, and therefore this ground too had no prospect of success.                                                           

 

21.              Receipt of the Information Commissioner’s response led the clerk to the tribunal to send an email to the appellant on 14 August 2012. This email referred to the Information Commissioner’s invitation to First-tier Tribunal “to strike out the appeal under Rule 8 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009” and went on:

 

“Under rule 8(4) of those Rules, the Appellant is entitled to provide written representations as to why the Tribunal should not strike out the appeal, which should be forwarded to the Tribunal, with a copy sent to the Commissioner, by 28 August 2012.” 

 

I observe that nothing in rule 8(4) expressly limits the representation to be in written form only.

           

22.             The appellant made his written representations, by email, on 28 August 2012. In the covering email he said that he attached his “Reply to the Information Commissioner’s Response of 13 August 2012”.  The appellant titled the reply document itself as his “Reply to the Respondent’s Invitation dated 13 August 2012 that his grounds of appeal be struck out”(pages 67-74). This is a detailed document and no useful purpose would be served in my setting out its detail in full.  I therefore refer only to the key relevant parts of it.  The appellant refers to the Guidance Notes for Individuals Representing Themselves and the part of it (paragraph 4) that says the “Tribunal’s task is to decide whether the ICO’s decision notice should be overturned or varied (changed in someway)”.  The appellant then observes (correctly) that the Information Commissioner’s response had concluded on the basis that his grounds of appeal provided no basis upon which the First-tier Tribunal could overturn the decision, and he argued therefore that it was not being contended that the First-tier Tribunal could not vary the decision notice. 

 

23.             The appellant’s representations then referred to the Information Commissioner having recognised in the past a confusion as to who had “ownership” of his complaint as between Business Link, Advantage West Midlands and the Department of Business, Innovation and Skills, and queried the basis of the Information Commissioner having accepted “towards the end of his investigations”, and through explanations provided by the Department for Business, Innovation and Skills, certain matters (such as, that some of the information was not held).  The concern of the appellant as to which body had ownership of his complaint and the related issue of which body “held” the information he was requesting continue as themes in his representations of 28 August 2012. He also emphasised a concern that assertions of fact made to the Information Commissioner by the Advantage West Midlands and the Department of Business, Innovation and Skills  (perhaps, most notably in relation to whether certain of the information requested was still held), had not been referred to him for comment prior to the Information Commissioner’s decision being made.

 

 

24.             The appellant concluded his representations “I submit, through the above representations, that my Notice of Appeal merits hearing in the Tribunal process, my having disclosed substantive and sufficient argument”.     

 

25.              As I have said, the appellant’s representations were sent by him to the First-tier Tribunal on 28 August 2012.  He then sent a further email to the tribunal on 2 October 2012 asking what he should expect as the next step in his case. That led to a reply being sent by email to the appellant from the tribunal on the same day. The reply said:

 

“You have submitted your reply to the ICO’s response relating to your original Notice of Appeal.

 

All documents and submissions have now been sent to a Tribunal Judge who will make a ruling on the appeal and the strike out application made by the ICO.

 

You will be informed of the outcome of this in due course and do not need to take any action at this stage.

 

I have attached guidance notes for your information. Please take the time to read these as they may answer any additional questions you have regarding the appeal process as a whole.” 

                  

    

26.             The guidance notes attached were the Guidance Notes for Individuals Representing Themselves (2011), which the appellant had already seen. I have attached these as an appendix to this decision. The key aspect of the Notes, in my judgment, is that nothing in them suggests anything other than that there will be a hearing of any appeal provided one of the parties to the appeal asks for one (which the appellant had done in his Notice of Appeal – see paragraphs 13-14 above).  Thus the concluding sentence of paragraph 16 says “If all parties do not agree, there will be a hearing”, and paragraph 17 continues: “If a case is to be considered on the papers, the parties will need to put all their arguments in writing in advance of the meeting, so that they can be considered by the Tribunal panel”. 

27.              Paragraph 19 of the Guidance Notes then says:

 

“When deciding whether an appeal should be considered at a hearing or on the papers provided, the Tribunal will take into account whether there is disagreement between the parties about the facts of the case. If so, the Tribunal may need to hold a hearing so that it hears the witnesses give evidence, and so the witnesses can be questioned.”

 

 

28.             Interrupting the factual narrative at this stage, it seems to me, if I may say so, that there is a huge amount to recommend these Guidance Notes.  They are written in very clear and accessible language and take actual or prospective appellants through the appeal process in an easy way.  However, they say nothing about any strike out rule and the lack of any hearing that may there arise. Further, either taken on their own or with the Notice of Appeal form they tell the reader that there will, unequivocally, be a hearing of the appeal if they ask for one.

 

29.             At the hearing Mr Knight for the Information Commissioner drew my attention to the end of the Guidance Notes and the statement:

 

“What is the status of these Guidance Notes?

61. These notes are intended to help people who are representing themselves. They are not an authoritative statement of the law. The provisions that govern the Tribunal’s work are set out in FOIA and EIR, together with the Tribunal’s rules of procedure and practice notes. These notes are not intended to modify those provisions in any way; rather, they are meant to help you understand how these provisions will operate in practice.

 

The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 can be found on the website, the address is:

http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/tribunals/tribunals-rules-2009-at010411.pdf”

 

Mr Knight made the point that had the appellant followed the link then he would have found rule 8 of the TPR and been able to identify the strike out powers there set out and that they could be exercised without a hearing. That is true, in one sense, however even the caveat in paragraph the 61 in the Guidance Notes says that the Notes are meant to help appellants understand how the TPR, inter alia, “will operate in practice”(my emphasis). Moreover, as will be seen when the relevant terms of the TPR are addressed below, the TPR does not set out unequivocally that there cannot be a hearing of a strike out application on an appeal.             

 

30.             Nonetheless, I accept that as the appellant was aware that the Information Commissioner had invited the First-tier Tribunal to strike out his grounds of appeal and that the papers had been referred to the Judge to make a ruling, and as ‘strike out’ did not feature in the Guidance Notes, he may been expected to consider what the phrase ‘strike out’ meant. I therefore asked the appellant at the hearing before me what he thought the phrase meant and what would happen on the appeal if his grounds were struck out.

 

31.              His answer was revealing. He is not a lawyer and so had no lawyer’s sense of what ‘strike out’ means.  To a lawyer if all the grounds of appeal are struck out then there is no appeal left.  However, what the appellant understood by the phrase and the way in which the Information Commissioner had couched his strike out invitation to the First-tier Tribunal – with its emphasis on striking out the grounds of appeal - was that the way in which he had written his grounds out may be stuck through or altered, or sent back to him to change, but that the appeal itself would continue, and would continue to a hearing given what the Guidance Notes said. Having heard from the appellant I have no hesitation in accepting that this was his genuinely held and reasonable view.                                   

 

32.             Of course whether or not the Guidance Notes misled the appellant or were inadequate is not the issue I have to rule on.  However the Notes do form part of the background to my deciding whether on the facts of this case  First-tier Tribunal erred in law in not holding a hearing of the strike out application or not reasoning out adequately why such a hearing was not needed.

 

33.             To return to the narrative, however, the appellant having made his “strike out representations” at the end of August 2012, on 9 October 2012 the First-tier Tribunal (the “tribunal”) made its Decision On Application Under Rule 8 without a hearing, the actual decision being:

 

“I am therefore satisfied that in accordance with Rule 8(2)(a) I must strike out the ground six (insofar as it is not withdrawn) on the grounds that the Tribunals lacks jurisdiction under rule 8(2)(a) and the other grounds of appeal under rule 8(3)(c) as disclosing no realistic prospect of success.”  

 

  

34.             As a matter of record, the tribunal did not in its reasoning in this decision address whether there ought to be a hearing of the strike out application. I will return later to whether the tribunal adequately addressed the appellant’s contention that he had no opportunity to test the factual evidence public authority that some of the information it had previously said it did hold was not held.

 

35.              Permission to appeal was refused by the First-tier Tribunal on 14 December 2012.  It said:

 

“In a lengthy appeal document [the appellant] asserts procedural irregularities, errors of law and errors of fact.…The procedural irregularities appear to be the failure to hold an oral hearing and that he did not submit all the evidence that he might have done. The appellant was given notice that a strike out would be considered and made submission in response to that. He also made assertions as to fact.  The ground lacks substance.  On examination the other grounds amount to disputes as to the factual basis upon which the Commissioner made his decision and similarly lack substance.” 

 

          

36.             I gave permission to appeal on 28 March 2013 on the basis that it was arguable the tribunal had erred in law in two respects, which I set out as follows.

 

(i)                 Firstly, in breaching the rules of natural justice in not providing [the appellant] with a proper opportunity to present his case on the appeal. [The] appeal was struck out under rule 8 of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (the “TPR”).  The effect of rule 32(3) of the TPR is that the general rule that the First-tier Tribunal “must hold a hearing before making a decision which disposes of proceedings” need not apply when deciding whether to strike out a party’s case. However, rule 32(3) of the TPR does not say the tribunal must not hold a hearing in a strike out case.  Instead, it gives the tribunal discretion as to whether to hold a hearing or not. Such discretion must be exercised in accordance with rule 2 of the TPR.  Even assuming that the exercise of this discretion need not arise until a request is made for it to be exercised (and that approach may not sit easily in tribunals which generally are seen as inquisitorial rather than adversarial), the arguable point here is that [the appellant] may not have had an adequate opportunity to either (a) make representations to the tribunal to exercise its discretion to hold an oral hearing before deciding the strike out application, or (b) make full representations on the appeal, because as far as I can identify none of the letters or literature sent to [the appellant] by the First-tier Tribunal prior to the strike out decision being made told him of the tribunal’s power to determine a strike out application on the papers alone and without a hearing. (Indeed paragraph 16 of the Guidance Notes for Individuals Representing Themselves in Freedom of Information Appeals arguably gives the impression that it is only if the parties consent to the appeal being decided on the papers that a hearing will not be held). In these circumstances it is arguable that the decision was arrived at on a procedurally unfair basis in that [the appellant] was not provided with an opportunity to argue for an oral hearing on the strike out application. Alternatively, it may be arguable that the First-tier Tribunal reasons are inadequate in that they did not address the reason why the tribunal had determined as a matter of its discretion to decide the strike out application without a hearing.

 

(ii)          Secondly, in the light of Judge Wikeley’s decision in AW and IC –v- Blackpool CC [2013] UKUT 030 (AAC) (available on the Upper Tribunal website), in deciding to strike out the appeal on ground 5 on the basis that it had no reasonable prospects of success, it [may] be arguable that the tribunal erred in law given that that ground arguably gave rise to issues of judgment and the weighing of competing factors. Alternatively, it may be arguable that the tribunal erred in law because it did not itself make its own assessment as to whether the Information Commissioner ought to have exercised his discretion differently or his [decision] was not in accordance with the law, but instead (at least as far as the reasoning in paragraph 13 of the Decision shows) only reviewed whether there was any defect in the approach adopted by the Information Commissioner.               

 

37.              In giving directions for an oral hearing of the appeal and seeking to obtain the views of the Information Commissioner at such a hearing, I raised the following.

 

“Given the recent decision of Upper Tribunal in AW & IC –v- Blackpool CC [2013] UKUT 30 (AAC) on what may be termed the improper use of the strike out provisions (but decided on an uncontested basis and without the benefit of oral argument), given the use made of these strike out powers by the First-tier Tribunal and respondent’s reliance on them not just in this appeal, and given the questions raised below, the attendance of the respondent at the hearing would be likely to be of considerable assistance to the Upper Tribunal, and so he is asked to attend by way of legal representation.    

 

Areas the Upper Tribunal may wish to have submissions on are:

 

as an aspect of fair procedure, ought the appellant have been notified in advance by the First-tier Tribunal that he could ask for the strike out application to be decided at a hearing (per Lloyd –v- McMahon [1987] A C 625 at 702)?;

 

at what stage was it decided by the First-tier Tribunal that the strike out application was not to be decided at a hearing, and did this inform the view communicated in the email of 14.08.12 that the representations on the strike out were to be written only? Further, is the request for representations pursuant to rule 8(4) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the “TPR”) a judicial, or an administrative, act. The email to the parties of 14.08.12 on page 38 suggests it may have been the latter.  Does the structure of rule 8(3) and (4) of the PR and the words “proposed striking out”, imply it is the former?;           

 

given it seems common ground that the First-tier Tribunal was exercising a discretion in deciding not to hold a hearing when deciding the strike out application, ought it not have provided reasons to show the basis on which it exercised that discretion (see, for example, R(VAA) –v- FTT [2010] UKUT 36 (AAC))?;

 

is a factual dispute the only area where a strike out on the grounds of no reasonable prospects of success inappropriate (per AW  & IC (above)) or do other considerations apply? For example, does the position vary if the party whose appeal is being considered for strike out is unrepresented? Moreover if the starting position is that a strike out on the grounds of no reasonable prospects of success may be decided without a hearing, how does the tribunal ensure, so far as is practicable, that the parties are able to participate fully in the proceedings: per rule 2(2)(c) of the TPR?; and                            

 

what is the correct test for determining that an appellant has no reasonable prospects of succeeding on an appeal to the First-tier Tribunal under section 57 and 58 of the Freedom of Information Act 2000 in respect of a decision by the Information Commissioner under section 40(2) of that Act?”                 

    

 

38.             There was then a hearing before me at which the appellant represented himself and Mr Christopher Knight of counsel represented the Information Commissioner’s interests.  The latter opposed the appeal. I am most grateful to the appellant and Mr Knight for the submissions they made to me, both oral and in writing, and for the good humour with which the hearing was conducted.

 

Relevant background – law

 

39.             The right of appeal to the First-tier Tribunal is conferred by section 58 of the Freedom of Information Act 2000, which provides:-

   

“58.—(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in appeals.

accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by

the Commissioner, that he ought to have exercised his discretion

differently,

the Tribunal shall allow the appeal or substitute such other notice as

could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on

which the notice in question was based.”

 

40.             The effect of sections 3-7 of the Tribunals, Courts and Enforcement Act 2007 and article 2(3)(a) of the Transfer of Tribunal Functions Order 2010 is that “the Tribunal” referred to in section 58 above is the First-tier Tribunal (Information Rights) of the General Regulatory Chamber.

 

41.              Section 22 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) empowers the making of “Tribunal Procedure Rules” in relation to, inter alia, the General Regulatory Chamber of the First-tier Tribunal.  By section 22(4) of the 2007 Act it is provided that:

 

“(4)Power to make Tribunal Procedure Rules is to be exercised with a view to securing—

(a)that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,

(b)that the tribunal system is accessible and fair,

(c)that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,

(d)that the rules are both simple and simply expressed, and

(e)that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.”

 

42.             The relevant tribunal procedure rules have already been referred to, but are the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the TPR”).

 

43.             Rule 2 of the TPR sets out that:

 

“2.—(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;

(c) ensuring, so far as practicable, that the parties are able to participate fully 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.”

 

44.             Rule 8 of the TPR then deals with Striking out a party’s case, and provides, so far as is relevant, that:

 

“8.—(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by the appellant to comply with the direction would lead to the striking out of the proceedings or that part of them.

(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

(3) The Tribunal may strike out the whole or a part of the proceedings if—

(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

(b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or

(c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.

(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.”

 

45.              Lastly of relevance in the TPR is rule 32, which is concerned with whether a decision may be made with or without a hearing, and provides:

 

“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.

(2) This rule does not apply to a decision under Part 4 (correcting, setting aside, reviewing and appealing Tribunal decisions).

(3) The Tribunal may in any event dispose of proceedings without a hearing under rule 8 (striking out a party’s case).

(4) Notwithstanding any other provision in these Rules, if the Tribunal holds a hearing to consider a preliminary issue, and following the disposal of that preliminary issue no further issue remains to be determined, the Tribunal may dispose of the proceedings without holding any further hearing.”

 

 

46.             As paragraph 1 above indicated, there have been a considerable number of decisions of the Upper Tribunal on First-tier Tribunals’ uses of the strike out power on the grounds of no reasonable prospect of success and the related issues of whether a hearing ought to have been held in the same or similar cases and the adequacy of the reasons given for not holding such a hearing.

 

47.              The decision of Mr Justice Walker (the then Chambers President of the Administrative Appeals Chamber of the Upper Tribunal) in R(VAA) –v- First-tier Tribunal [2010] UKUT 36 (AAC), concerned a claim for criminal injuries compensation and an appeal which was outside the 90 day time limit. The First-tier Tribunal made a decision on the papers alone not to admit the late appeal. This was not, therefore, a strike out case. However, the provision governing whether to hold a hearing is similar to that in r.32(3) of the TPR. It is rule 27(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the relevant part of which provides that “27(4) In a criminal injuries compensation case..(a) the Tribunal may make a decision which disposes of proceedings without a hearing…” (the exemption from this rule in rule 27(5) not applying).

 

48.             Mr Justice Walker said this about the failure of the First-tier Tribunal to reason out why it had decided not to hold hearing (paragraph [8]):

 

“The decision of 8 December 2008 by the Tribunal Judge noted in paragraph 7 that paragraph 27(4) of the Rules (i.e. the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) permitted him to make a decision which disposed of the proceedings without a hearing. The Tribunal Judge must have decided that it was appropriate to take a decision on the application without a hearing. The decision notice of 8 December 2008, however, does not state this. Moreover it gives no reasons for concluding that it was right to take the decision without a hearing. The Tribunal Judge presumably thought there was no good reason for a hearing. If so, in the circumstances of the present case, he ought to have explained why.” (my underlining).

 

 

49.             Upper Tribunal Judge Levenson has considered the issue of the First-tier Tribunal not holding a hearing in criminal injuries compensation cases in a number of decisions.  In AG -v- First-tier Tribunal and CICA [2013] UKUT 357 (AAC) he said this (at paragraphs 26-32);

 

“26. Rule 27(4)(a) certainly gives the First-tier Tribunal power to make a decision without holding an oral hearing, but this is a power, not an obligation, and it is one which must be exercised fairly and judicially and in accordance with the rules of natural justice, especially as rule 27(5)(a) makes it, in effect, a final decision. In many (perhaps most) cases there will be no problem with the use of this power; the facts might be undisputed and straightforward, there might be no explanation at all offered for the relevant delay, or it might be simply impractical to have an oral hearing. However, that is not so in all cases.

 

27. In VAA v First-tier Tribunal & CICA JR/0685/2009 Mr Justice Walker, sitting as Chamber President of the Administrative Appeals Chamber of the Upper Tribunal, pointed out that a judge of the First-tier Tribunal must explain why a decision has been made not to have an oral hearing.

 

28. In the present case the First-tier Tribunal Judge gave a standard (or perhaps pro forma) list of reasons, including “consideration of the documents in the appeal bundle” without giving any reasons relating to the specifics of the case. He also referred (paragraph 10) to “the overriding objective of the Rules which is to enable the Tribunal to deal with cases fairly and justly” and “the need for discretion to be exercised judicially”, which seem to me to point in the opposite direction from refusing to have an oral hearing. In my opinion it is usually an error of law not to refer to the specifics of the particular appeal when exercising this discretion or explaining how it has been exercised.

 

29. In R(AM) v First-tier Tribunal & CICA JR/3406/2012 in paragraph 19 Upper Tribunal Judge Rowland pointed out that:

 

“Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained”.

 

30. I do not propose to offer an exhaustive list of the factors that the First-tier Tribunal must take into account in all cases but the particular factors in this case which should have prompted the First-tier Tribunal to offer the applicant the opportunity to have an oral hearing include the complexity of the factual background (including the bungled rape investigation and the police complaint investigation and the time that it took to carry out the latter), the substantial medical evidence, the fact that the police had held on to the claim form from a date within the time limit period to a date well beyond the expiry of that period, the fact that the applicant believed that she needed the police information before submitting the claim, and her difficulties in expressing herself in writing.

 

31. Above all it is not appropriate to challenge the honesty or integrity of an appellant where there has been no hearing and no chance to respond to the matters leading to such a challenge. I do not know what the First-tier Tribunal really meant by referring to a particular argument by the applicant (which she denies having made) to have been “disingenuous” but she has stated that she understands this to be challenging her honesty and integrity.

 

32. The Upper Tribunal will not hesitate to quash a decision of the First-tier Tribunal where the power in rule 27(4) has been exercised to deprive the claimant of an oral hearing where, in the judgment of the Upper Tribunal, it should not have been so used. Any case in which some or all of the factors such as those referred to in paragraphs 30 and 31 above (and/or other factors that do not arise in this case) are present, is likely to fall into that category.”

       

50.             In TG –v- First-tier Tribunal and CICA [2013] UKUT 0366 (AAC) revisited the same issue, set out the above from AG, and made the additional point (at paragraph [28]):

 

“In the present case the First-tier Tribunal gave no reasons at all for not having an oral hearing.  That by itself constitutes an error of law….” 

 

       

51.               R(AM) –v- First-tier Tribunal (CIC) [2013] UKUT 0333 (AAC), referred to in paragraph 29 of AG above, is another criminal injuries case, but this time one where the First-tier Tribunal had stuck out the appellant’s appeal on the grounds that it had no reasonable prospect of success.  In quashing the strike out decision (criminal injuries ‘appeals’ cases are dealt with by way of judicial review in the Upper Tribunal), Upper Tribunal Judge Rowland said this (at paragraphs [11] and then  [17] to [22]) :

 

“The effect of striking a case out under rule 8(3)(c) is to deprive a person of an oral hearing and it should therefore be used to weed out hopeless cases but not cases that are merely weak.  Moreover, it is important that it is not used in a way that prejudices those better at expressing themselves orally than in writing and in particular so that those with mental health problems are not prejudiced.

 

In Labrouche v Frey [2012] EWCA Civ 881; [2012] 1 W.L.R. 881, the Court of Appeal held that the High Court had been wrong to refuse to hear oral argument in support of an application to strike out a claim, whereas rule 27(3) of the Rules expressly provides that the First-tier Tribunal “may in any event dispose of proceedings without a hearing under rule 8 (striking out a party’s case)”.

 

Rule 27(3) is, on the other hand, an exception to the general principle expressed in rule 27(1) that a party has a right to a hearing – which means “an oral hearing” (see rule 1(3)) – before any decision is made that disposes of proceedings, although he or she may waive the right.  Care must be taken that the exercise of the power to strike a case out without a hearing does not undermine the general right to a hearing of an appeal.  This is particularly so where what is contemplated is that an appeal should be struck out under rule 8(3)(c) on the ground that “the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding”.  Striking a case out on those grounds amounts to a summary determination of at least one of the very issues that would otherwise have been determined in the substantive appeal.

 

There can be little objection to striking a case out under rule 8(3)(c) without a hearing where the issue is a straightforward point of law arising on uncontentious facts, since an appeal on a point of law or judicial review provides an adequate remedy in the event of a tribunal being wrong.  However, striking a case out under an equivalent to rule 8(3)(c) of these Rules has been held not to be appropriate where there are unresolved issues of fact requiring the hearing of evidence (AW v Information Commissioner [2013] UKUT (AAC)).  In my view, it is also not appropriate where there is a discretion to be exercised upon which oral argument might be appropriate.  A hearing is guaranteed both so that oral evidence may be given and so that there may be oral argument.  This is particularly important where claimants are unrepresented.  Many litigants in person are better at expressing themselves orally than in writing and, as a class, they are notoriously bad at understanding what evidence is required in order to support their cases and how it should be presented or obtained.  Moreover, decisions on fact or as to the exercise of a discretion cannot usually be challenged where an appeal lies only on a point of law or the only method of challenge is judicial review.

 

In the present case, it seems to me that the significance of the claimant’s letter received on 3 July 2012 lay not in the information contained in it, which as the Authority submits was not new, but in his plea that the First-tier Tribunal “explore the facts … by gaining access to my history”.  Paragraph 13 of the directions notice issued on 20 June 2012 had left it be inferred by the claimant that he should provide medical evidence himself.  It seems to me that, had the judge seen that letter on 22 August 2012, she might have considered whether it was really appropriate to expect the claimant to provide medical evidence or whether the First-tier Tribunal or the Authority should obtain it themselves, which would enable them to do so in terms that would ensure that it addressed the relevant issues (as the Authority would presumably have done had the issue been flagged up more clearly at an earlier stage) or whether the case should not be struck out and should simply be allowed to go to a hearing at which the First-tier Tribunal would be able to hear from the claimant and decide whether it was actually necessary to obtain any further medical evidence.  Even if she had considered that the claimant should provide the evidence, the judge might have thought it appropriate to make that implicit and given further guidance to the claimant as to from where it might have been obtained.

 

I am therefore satisfied that there was a material irregularity in the proceedings before the First-tier Tribunal because the letter received on 3 July 2012 was not before the judge when she made her decision on 22 August 2012.  But I am also satisfied that the proceedings were more fundamentally flawed because the effect of the directions notice dated 20 June 2012 was to force the claimant to argue his case in writing when he was entitled to an oral hearing.  On the evidence before it, the decision may well have been reasonable, but that is to overlook the fact that there would at least have been additional oral evidence from the claimant had there been an oral hearing.

 

I also observe that the judge striking out the case said that “the prospects of the Appellant being made an award of compensation in these proceedings are virtually non-existent” (my emphasis), which suggests that she considered that an oral hearing or further evidence might have made a difference, even though she also said that she had “no alternative” to striking the case out (which was certainly not legally accurate given the word “may” in rule 8(3) as opposed to “must” in rule 8(2)).  In those circumstances the case should not have been struck out or, at least, should not have been struck out without a hearing.  (In the Social Entitlement Chamber of the First-tier Tribunal, where substantive hearings are usually very short, there can be few occasions when there is any point in striking a case out under rule 8(3)(c) at a hearing rather than proceeding to hear the substantive appeal, but in other Chambers, where full hearings can go on for days, there may well be a practical purpose in considering an application under section 8(3)(c) at a hearing.)”

 

52.              I have set out the views of Judge Rowland in AM at some length because I agree with and, as will become apparent, I consider there are parallels between that case and this appeal.

 

53.              The case of AW referred to by Judge Rowland is AW –v- Information Commissioner and Blackpool City Council [2013] UKUT 030 (AAC), in which Upper Tribunal Judge Wikeley was considering rule 8(3)(c) of the TPR in an information rights case.  Judge Wikeley first analysed the principles governing the use of strike out for no reasonable prospects of success.

 

“The principles governing the application of rule 8(3)(c)

7.            It is important to consider issues of first principle. It is well established in the ordinary courts that the historic justification for striking out a claim is that the proceedings are an abuse of process (see e.g. Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 541B per Lord Diplock). On that basis, the power should only be exercised in plain and obvious cases (see Lonrho PLC v Fayed [1990] 2 QB 479 at 489F-G per Dillon LJ and 492G-H per Ralph Gibson LJ).

 

8.            More recent rulings from the superior courts point to the need to look at the interests of justice as a whole (see e.g. Swain v Hillman [2011] 1 All ER 91). It is also well established that striking out is a draconian power of last resort: see Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 at 1933B per Lord Woolf MR (where, admittedly, the issue was delay rather than lack of reasonable prospects) and also, in the Upper Tribunal, AS v Buckinghamshire CC (SEN) [2011] AACR 20 and [2010] UKUT 407 (AAC) at [14]. It is, moreover, plainly a decision which involves a balancing exercise and the exercise of a judicial discretion, taking into account in particular the requirements of Rule 2 of the GRC Rules.

 

9.            So what then is meant by saying that “there is no reasonable prospect of the appellant’s case, or part of it, succeeding” (within rule 8(3)(c))? The standard and authoritative commentary on tribunal procedure, by Judge Edward Jacobs (Tribunal Practice and Procedure, 2^nd edn, 2011, at [12.39]), advises that this “is only appropriate if the outcome of the case is, realistically and for practical purposes, clear and incontestable. It is not usually appropriate if facts relevant to the ultimate outcome of the case are disputed” (emphasis added).

 

10.          Judge Jacobs cites as authority for this proposition the employment case of Ezsias v North Glamorgan NHS Trust [2007] EWC Civ 330; [2007] ICR 1126.  There Maurice Kay LJ held as follows:

 

“29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is was Elias J held. I do not consider that he put an unwarranted gloss on the words "no reasonable prospect of success". It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”

 

 

54.              The critical factor in AW as to why the First-tier Tribunal had erred in law in striking out the appeal on the basis of “no reasonable prospects of success” was – per paragraph [19] – that there was “plainly a contested issue of fact to be resolved”. 

 

55.              In R(Osborn) and others –v- Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, the issue was whether procedural fairness could require a person to be offered a hearing before the parole board where the legislation did not provide any right to such a hearing.  Of relevance to this appeal is one of the facts identified by Lord Reed (with whom the other members of the Supreme Court agreed, which was likely to make an oral hearing necessary, namely:     

 

“Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.”  

 

Appropriately translated to information rights case in the First-tier Tribunal, those considerations seem in my judgment to echo what was said in AM and AW above    

 

56.              One other authority was drawn to my attention. This is a refusal of permission to appeal determination by Judge Wikeley in an information rights case concerning a Mr Ivan Ivanov, II –v- Information Commissioner [2013] UKUT 008 (AAC).  The Information Commissioner relied on this case as supporting the view that it was not procedurally unfair for the tribunal to have stuck out the appellant’s case without a hearing. Mr Ivanov’s case (or at least the relevant parts of it) had also been struck out without a hearing on the basis that it had no reasonable prospects of success.

 

57.              I shall assume in the Information Commissioner’s favour that this decision carries as much weight as an Upper Tribunal decision on an appeal, even though the standard or orthodox position is that normally determinations of permission to appeal applications do not carry such authority or weight. Reliance is placed upon paragraphs [24]-[25] and [37] in II and Judge Wikeley’s rejection of Mr Ivanov’s argument that “he emphasised throughout that he had to have an oral hearing to present his case properly, and this was denied by [the First-tier Tribunal]”.   Judge Wikeley rejected this ground of appeal shortly and on the basis that “Rule 32(3) expressly provides that [the tribunal may dispose of proceedings without a hearing”. Judge Wikeley then later made these comments (in paragraph [37]):

 

“The Rules make provision for parties to apply to the FTT to strike out part or all of an appeal to the FTT on various grounds. The FTT can also reach such a decision on its own initiative. Quite properly, there are various procedural safeguards in place in the Rules when such a possibility is under consideration. However, those safeguards do not include an automatic right to an oral hearing of the strike out application – precisely because the whole point of the strike out power is to dispose of unmeritorious appeals which should not be consuming valuable public resources such as judicial time. The IC was, therefore, entirely within his rights to make the application in this case – an application which in the event has been justified by the outcome both of Judge Pilling’s ruling and this determination.”

 

 

 

58.             It is argued by the Information Commissioner that this passage supports his case that the tribunal neither erred in law in not holding an oral hearing of the strike out application nor did it err in law in failing to reason out why it was not holding such a hearing.

 

Analysis

 

59.              In my judgment the tribunal erred in law for the following reasons.

 

Rule 8(3)(c) says ‘may’ and not ‘must’

 

60.             The first is that on the face of its decision the tribunal misdirected itself as to the law by ruling that it must strike out the grounds of appeal under rule 8(3)(c) as disclosing no realistic prospect of success.  Rule 8(3)(c) and its use of the word “may” plainly vests a discretion in the First-tier Tribunal as to whether to strike out an appeal even if it considers the grounds have no reasonable prospect of success. An example not wholly unadjacent to this appeal may be where the public authority no longer held the information at the time it was requested but the First-tier Tribunal considered the appeal should  go to a full hearing in order to have the public authority explain why it had disposed of the information. I recognise, however, that this error is not key to this appeal, and it may even be argued it was not material to the tribunal’s decision.

 

Failure to hold hearing

 

61.              The second error of law, and in my judgment the key one and a plainly material error of law, was the failure of the tribunal to hold a hearing of the strike out application and/or its complete failure to reason out why no hearing of the strike out application was needed.

 

 

62.             It may even be argued that the tribunal made a third error of law in striking out the appeal grounds it did on the basis that they had no reasonable prospects of success when some of them were tied up with factually disputed areas that the appellant was seeking to ventilate on his appeal.  However, as this aspect of the appeal did not play any, or any central, role in the written submissions on the appeal, my grant of permission to appeal or the hearing before me, I prefer just to note this point and comment on it further below.

 

63.             Ignoring the areas of factual dispute on the appeal, the position as I have sought to map it out above was that it had been represented to the appellant that, his having asked for a hearing, there would be a hearing of his appeal.  In these circumstances it seems to me that, in the absence of any express instruction countermanding what the Guidance Notes and the Notice of Appeal form had said, fairness required that the tribunal held a hearing on the strike out application; or the tribunal had to reason out why no such hearing was needed notwithstanding the plain representation that there would be a hearing of the appeal. I have arrived at this conclusion for the following reasons.

 

64.             First, the strength of the representation made.  Both the Guidance Notes and the Notice of Appeal plainly tell the reader that there will be a hearing of his appeal if he asks for a hearing, and that is what the appellant had asked for here. The reference at the end of the Guidance Notes to the TPR is not enough, in my judgment, to cut down or vary the strength of the representation made, for the reasons I have given in paragraph 29 above. 

 

65.              Second, the appellant is a non-lawyer and so would have no obvious knowledge as to what “strike out” under the law would meant (as he demonstrated to me). Indeed, the Guidance Notes are crafted on the premise that they are to be read by people representing themselves and thus not represented by lawyer. I make this point because it addresses an argument that the Information Commissioner sought to make, namely that the appellant made no representations about making oral representations on the strike out application when he was asked, and provided,  written representations on the strike out request in August 2012.  However, he was not told he could ask for an oral hearing and, indeed, given his view as to what ‘strike out’ meant, he had no reason to suppose that the strike out process would cut off the hearing of his appeal that he had been told he would have.

 

66.             Third, the representation in the Guidance Notes and Notice of Appeal form may have had no effect, in terms of error of law, if the law provided that a strike out application must be decided without  a hearing. However, as rule 32(3) of the TPR shows, the First-tier Tribunal has a discretion as to whether to hold a hearing on whether to strike out a party’s case.  That is a discretion which has to be exercised judicially and on the facts of each case, and needs to be shown to have been exercised. On the facts of this case that included the representations made to the appellant that his appeal would be the subject of a hearing. In the absence of any convincing reasons having been provided by the tribunal as to why it was fair to disregard these representations, it seems to me that this discretion could only operate in one way - in favour of holding a hearing.

 

67.              I accept, as was argued by the Information Commissioner, that rule 32(3) of the TPR cannot be construed as requiring a hearing in all cases. Just as the word “may” in that rule does not compel the conclusion that a hearing must never take place on strike out application, nor does it mean that a hearing must always take place.  For example, even on the basis of the Guidance Notes and the Notice of Appeal form in place on this appeal it may be argued to be a misuse of the discretion in rule 32(3) to hold a hearing where no party had requested one. 

 

68.             I further accept that the strike out powers conferred by rules 8 and 32 of the TPR, if operated consistently with the overriding objective, are an important procedural tool to avoid the First-tier Tribunal’s resources being used up on cases where it serves no purpose – per Lord Woolf MR in Swain –v- Hillman [2001] 1 All ER 91. However, this does not touch on the issue of fairness that arises in this case that the First-tier Tribunal had told the appellant there would be hearing of his appeal but then disposed of his appeal without any such hearing.

 

69.             Nor do I consider that the right to make representations before a strike out decision is made (rule 8(4)of the TPR), or the right of set  aside under rule 41 of the TPR or the right of further appeal to the Upper Tribunal are sufficient “procedural safeguards” in this case.  As I have said above, the appellant was directed to make written representations under rule 8(4); the set aside provisions in rule 41 would seem not to have any application given there was no hearing (unless it could be argued that not holding a hearing was here “some other procedural irregularity”, but then set aside was refused by the First-tier Tribunal here); and an appeal to the Upper Tribunal is on error of law grounds only.  Indeed it may be thought to be an odd result that the appellant was denied a hearing he had seemingly been told he was entitled to by the First-tier Tribunal but the Upper Tribunals own procedural rules guaranteed him a hearing (at least of his application for permission to appeal if it had been refused on the papers).

 

70.             Further, I do not accept that Judge Wikeley’s decision in the Ivanov stands against the conclusion I have arrived at.  Mr Ivanov’s case was put on the basis that he had to have a hearing rather than that he had been told he would have a hearing.  In those circumstances it seems to me unexceptional for Judge Wikeley to have ruled that there was no automatic right to an oral hearing (which is true in any event simply as a matter of construction of rule 32(3).

71.               The fourth consideration in favour of my conclusion that the tribunal  erred in law in not holding a hearing of the strike out application is the fact that the discretionary strike out areas the tribunal was being asked to consider all involved the test of whether the appeal grounds had “no reasonable prospects of success”.  As the case law set out above makes plain, even ignoring the potential areas of factual dispute, this is an option that should only be exercised as a last resort and in the plainest of cases, and should be exercised with especial care where the appellant is a litigant in person.   

 

72.              I should comment here on two related submissions made by the Information Commissioner. The first was that the TPR expressly contemplated that strike out decisions could be made by the First-tier Tribunal on the grounds that the appeal had no reasonable prospects of success without a hearing because rule 32(3) of the TPR referred to rule 8 generally and did not act to except rule 8(3)(c) of the TPR.  This was a more general point made outside what the Guidance Notice and Notice of Appeal forms had said, and was relied on for a submission that a strike out decision under rule 8(3)(c) of the TPR could be made without a hearing. That may be so (e.g. where no one wants a hearing),  but I would counsel some caution in pushing the submission too far.  Rule 32(3) of the TPR covers all of rule 8 and thus includes strike out on the mandatory ground of the tribunal having no jurisdiction in rule 8(2)(a). Following Judge Rowland in AM, I can well see that such cases usually ought not to call for a hearing (or even a case under rule 8(3)(c) where binding higher court authority dictates the result), and rule 32(3) of the TPR in such cases has an evident and sensible purpose.  However, that does not mean that a case where it is open to dispute whether it is plainly hopeless ought also to be subject of no hearing.

 

 

73.              The second submission made by the Information Commissioner here was a concern that holding a hearing on a case to establish whether it has no reasonable prospect of success was likely to take up just as much time as holding a hearing of the appeal. I do not accept this.  The First-tier Tribunal has sufficient powers under the TPR to avoid this being the result.  First, having scrutinised the papers where a rule 8(3)(c) application has been made by the Information Commissioner or the public authority (and those submissions should have explained why 8(3)(c) was applicable), specific directions could be made to the appellant asking him, for example,  to specify in clear terms the important facts that are in dispute and/or whether he wants a hearing of the strike out application (and, if so, why).  In  an appropriate case that direction could carry with it a warning of strike out under rule 8(3)(a) of the TPR. Second, the hearing of the strike out application could be limited in time to say half an hour or an hour and that time limit notified beforehand and then rigorously enforced. These are not exhaustive examples. However, in my judgment they show that the concern raised here is misplaced. Of course, if the rule 8(3)(c) strike out takes just as long to deal with as the full appeal then that may indicate that it was not appropriate to use that rule in the first place.

 

74.              Taking account of these four considerations cumulatively, I am satisfied that the tribunal erred materially in law in deciding to strike out the appellant’s grounds of appeal on the grounds of no reasonable prospects of success without holding a hearing.  (The appeal ground six was not struck out under rule 8(3)(c) and in any event is no longer in issue.)   

 

Reasons for not holding a hearing

 

75.              An alternative way of viewing the error of law is to look at it in terms of the adequacy of the tribunal’s reason for deciding the appeal without a hearing.  Rule 32(3) of the TPR vests a discretion in the First-tier Tribunal as to whether to hold a hearing on a strike out application. In my judgment, the tribunal needs to give reasons to explain its decision whether to have hearing or not: see VAA and TG above.  I can see no material difference between rule 27(4) in the Social Entitlement Chamber’s rules of procedure as considered in VAA and TG and rule 32(3) of the TPR.  Both are the rules addressed to making a Decision with or without a hearing,  both use the word “may” and both are concerned with decisions that have the effect of disposing of the appeal proceedings.

 

76.              The need for reasons is a general one and may in a general case be addressed quite shortly. In the example of a binding higher court authority that only points to one possible result on the appeal, the reasons could refer to that authority and simply say that a hearing could not have altered the result.  However, reasons were in my judgment particularly called for on this appeal given the fact – of which the tribunal ought to have been aware – of the representations made to the appellant in the Guidance Notes and the Notice of Appeal form that he would have a hearing  of his appeal.

 

77.              It is just about possible – though the parties before me would have been in evident difficulties in advancing such a case – that having no hearing was justified because, inter alia, what was said in the Guidance Notes and on the Notice of Appeal form had been expressly qualified elsewhere to the appellant. (I add, however, that nothing the appellant said to me gave me any cause to think this may be the case.) However, the complete absence of any reasoning from the tribunal on why it decided to strike out the appellant’s appeal closes off that possibility. 

 

78.             This lack of reasoning can either be seen as part of the tribunal erring in law in not holding a hearing, as it gave no rational basis for going against the representations made in the Guidance Notes and on the Notice of Appeal form, or as an error of law ground in its own right.

 

79.              I do not accept the argument of the Information Commissioner that, given the structure of the TPR and the purpose of rules 8 and 32(3), I can find the reason for not holding a hearing in any given case was because it was disproportionate to do so; in other words, that such reasoning is unnecessary as it is self-evident why no hearing is needed. That submission comes close to an argument that a hearing is never needed when deciding a rule 8 strike out application, but if that were the case then rule 32(3) could have expressly provided for this.  Nor is such a submission consistent with VAA or TG. Moreover, it is not self-evident why the tribunal decided against holding a hearing when the representations made in the Guidance Notes and on the Notice of Appeal form had told the appellant he would have a hearing.

 

80.            Mr Knight also made the point that requiring reasons in such cases would lead the First-tier Tribunal to only provide formulaic reasons. However, if that is so the Upper Tribunal will be astute to check such reasoning.  Just as any court or tribunal, the First-tier Tribunal (Information Rights) can be expected to provide adequate reasons for its decision, including why it decided not to hold a hearing of a strike out application. Reasons may in an appropriate case be short (see the example given in paragraph 76 above), but they need to be given.  The need to give reasons, and why it is consistent with good decision making, was perhaps best expressed by Mr Justice Sedley (as he then was) in R-v- Higher Education Funding Council, ex parte Institute of Dental Surgery [1993] EWHC Admin 5; [1994] 1 WLR 242, where he said at page 252:     

 

“The giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process.”                               

Contested facts

 

81.              I come lastly to the issue of whether there were contested material facts in issue on the strike out application. I approach this matter with some caution aware as I am that this was an issue that was not foreshadowed in any of my directions or explored in the written submissions or at the hearing before me. However as the decision of the tribunal is being set aside for other reasons, I consider I can at least safely comment on this issue.

 

82.             It does seem to me arguable that the appellant was seeking to contest the facts that underlay the Information Commissioner’s conclusion that certain information that he had requested was not “held” by the public authority. In a sense this is mixed up in the appellant’s ‘lack of due process argument’. Perhaps the most obvious examples are the shifting in position as to (a) whether the appellant’s tender had been scored by the evaluation panel, and (b) whether the consultant’s name and qualifications and experience were held by the public authority.    The appellant may or may have been right in his suspicions in this regard, but arguably these were matters he ought to have been able to test at a hearing. Moreover, I do not consider that the Information Commissioner’s stance that it was for the appellant to provide evidence to refute his conclusions is a complete answer. The history of how the information requests had been handled by Business Link, Advantage West Midlands and the Department for Business, Innovation and Skills, and the different answers given at different stage as to what relevant was ‘held’ by them, arguably ought to have allowed the appellant to test this evidence as to its internal consistency and accuracy. The lack of any hearing arguably precluded the appellant from taking this step.

 

83.             However, these are tentative views, for the reasons given above, and I therefore take them no further or rule on whether such contested facts render a rule 8(3)(c) strike out inappropriate, whether after a hearing or not.  That will be a matter for the next First-tier Tribunal to address. If the grounds of appeal are struck out under rule  8(3)(c) after the hearing, the First-tier Tribunal’s reasoning will need to address why there was no relevant contest on the facts which would have required a full hearing of the appeal.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

                                                                                                          

          Dated 23^rd May 2014     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GUIDANCE NOTES FOR INDIVIDUALS REPRESENTING THEMSELVES IN FREEDOM OF INFORMATION APPEALS IN THE GENERAL REGULATORY CHAMBER OF THE FIRST-TIER TRIBUNAL

1. These notes are intended to help individuals who are representing themselves in freedom of information cases in the First-tier Tribunal. People who represent themselves in court or tribunal (rather than using lawyers to represent them) are often known as “litigants in person”.

2. The notes are set out in the form of questions and answers. There is a glossary at the end which is intended to explain the meaning of words and phrases that may not be obvious.

What is the Tribunal’s role in [freedom of information] cases?

3. Under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR), individuals have the right to apply to public authorities for the disclosure of information held by those authorities. If the person making the request thinks that the public authority has not complied with FOIA or EIR, they can complain to the Information Commissioner’s Office (ICO). The ICO’s decision on the complaint will be set out in a document called a Decision Notice. Once the ICO has made a decision, either the person making the request, or the public authority, can appeal to the First-tier Tribunal (Information Rights).

4. The Tribunal’s task is to decide whether the ICO’s Decision Notice should be overturned or varied (changed in some way). The Tribunal can consider whether the ICO misinterpreted the law, or applied it wrongly; whether the ICO made a wrong finding of fact; and, in cases where the ICO has a discretion; whether the discretion should have been exercised differently.

5. The Tribunal process is more formal than the stages you have already gone through since making your information request. However, do not be put off - many people have represented themselves before the Tribunal. The Tribunal staff are always willing to help with any queries you may have about the process.

When and how can I appeal to the Tribunal?

6. Once the ICO has made a decision about your complaint and has issued a Decision Notice, you can then appeal to the Tribunal. You should do this within 28 days of the ICO’s Decision Notice being sent to you. If you send your appeal to the Tribunal office any later than this, then you should include an explanation of why the appeal is late. The Tribunal will consider your explanation and decide whether the appeal can be accepted.

7. There is a Notice of Appeal form on the Tribunal’s website at;

[http://www.justice.gov.uk/global/forms/hmcts/tribunals/information-rights/index.htm You can also get a copy of this form by writing to the Tribunal at the address given in the next paragraph. You do not have to use this form, but it is your interests to do so, as it will help you to make sure that you give the Tribunal all the information that it needs.

8. You should send the completed form to:

The First-tier Tribunal (Information Rights)

General Regulatory Chamber

Arnhem House Support Centre

PO Box 9300

Leicester

LE1 8DJ

What happens after I have submitted my appeal to the Tribunal?

9. The Tribunal will send your appeal papers to the Information Commissioner. The ICO then has 28 days to put in a written response to your appeal. The ICO will send a copy of his response to you and to the Tribunal. The ICO’s reply will respond to each of your grounds of appeal and will usually set out which grounds he accepts and which he disagrees with.

10. Sometimes the Tribunal will make an order that the public authority to which you made your request for information should also be a party and, in effect, joined to the appeal. Where this happens, the public authority will be asked to put in a written reply to your appeal, and to send you a copy.

11. In a very few cases the appeal/application may be transferred to be heard in the first instance by the Upper Tribunal. This may be because of its complexity or because it is of considerable public interest. For information about the Upper Tribunal see: http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/aa/index.htm

Apart from me, who else will take part in the appeal process?

12. The individuals or organisations who take part in the appeal process are referred to as the parties to the appeal.

13. The Information Commissioner will be a party to every appeal and in every case as it is the ICO’s decision that is being challenged in the appeal. The IC will usually want to explain to the Tribunal why he took the decision that he did, and why he thinks that his decision was right. 14. As explained above, sometimes the public authority, to which you made your request for information, will also be a party to the appeal. Even if the ICO has found that the public authority dealt with your request correctly, the public authority may still wish to give its own explanation to the Tribunal as to why it says that the Commissioner was right. For instance, if the ICO has found that the public authority does not hold the information that you are seeking, the public authority may want to explain to the Tribunal what steps it has taken to try and find that information. Or in a case where the ICO has found that information is exempt from disclosure, the public authority may want to give its own explanation as to why it says that the exemption applies.

15. Occasionally, there will be other parties. For example, a commercial organisation that has supplied information to a public authority may apply to be added or joined as a party to an appeal, if the appeal is about whether that information should be disclosed under FOIA or EIR.

Will there be a hearing, or will my appeal be dealt with on paper?

16. The First-tier Tribunal (Information Rights) can consider an appeal on the papers only or hold a hearing. The Notice of Appeal form includes a box for you to indicate which option you would prefer. The other parties in an appeal can also express a preference. If all parties agree the Tribunal can consider the appeal on the papers provided. If all parties do not agree, there will be a hearing.

17. When a case is dealt with on paper, it means that the members of the Tribunal will meet in private, without parties being present, to consider the papers; discuss the case between themselves; and make a decision. The written decision will be sent to the parties in due course. If a case is to be considered on the papers, the parties will need to put all their arguments in writing in advance of the meeting, so that they can be considered by the Tribunal panel.

18. If the case is dealt with at a hearing, a date will be fixed by the Tribunal in consultation with the parties. Parties are not required to attend the hearing, although it is in the interests of the appellant in particular to do so. Witnesses can be called at a hearing and can be questioned both by the parties and by the Tribunal. Before being questioned the witnesses may be required to swear on a holy book or affirm that they will tell the truth to the Tribunal. The parties will be expected to make submissions to the Tribunal: i.e. explain what decision they think the Tribunal should reach, and why. At the end of the hearing, the Tribunal may be able to give the parties a decision (with written reasons to follow). More usually, the Tribunal will take more time to reach a decision, and will send its decision to the parties in writing in due course.

19. When deciding whether an appeal should be considered at a hearing or on the papers provided, the Tribunal will take into account whether there is a disagreement between the parties about the facts of the case. If so, the Tribunal may need to hold a hearing so that it hears the witnesses give evidence, and so that the witnesses can be questioned. Another situation where the Tribunal may feel that a hearing is preferable is where there are complicated legal arguments and the Tribunal thinks that they should be explored in more depth.

20. You may have a strong preference about how your case will be dealt with. Some litigants in person are happier to express themselves on paper; others feel that they will not be able to explain their case properly unless there is a hearing. Either way, you should explain what your preference is and why. You can do this both when you put in your appeal and at any directions hearing (see below).

Where will the Tribunal hold a hearing?

21. The Tribunal usually hears cases in London but is prepared to sit in other locations which are more convenient to the parties, if a suitable venue can be booked. If you wish the case to be heard outside London you should request this in the notice of appeal.

How does the Tribunal decide what needs to be done to prepare a case for hearing?

22. In order to prepare a case for a hearing, there are a number of steps that will need to be taken. This process is the same whether the case is dealt with at a hearing or on paper.

23. The steps that the parties need to take usually include the following:

                 

They will need to provide one another with copies of any information they hold that is relevant to the appeal.

 

They will need to agree which documents should be put before the Tribunal. Documents will usually be included in files (in this context often referred to as bundles).

 

The parties will need to agree the content, order and pagination or page numbering of the bundles.

 

If there is a hearing, the parties will need to consider whether they want to call any witnesses (or to give evidence themselves).

 

If the case is to be dealt with on paper, the parties may wish to put in written witness statements for the Tribunal to read.

 

Whether the case is dealt with at a hearing or on paper, the parties will usually provide the Tribunal with a written document setting out their arguments.

 

In every case, the Tribunal will issue what are called directions. Essentially these are a set of instructions from the Tribunal to the parties explaining what needs to be done to prepare the case for a hearing, together with a timetable for when those steps need to be taken.

24. In most cases the Tribunal will send initial instructions or directions to the parties once the ICO has replied to the notice of appeal. These will indicate a date range within which the Tribunal expects to hear the appeal. The Tribunal may send the parties a list of possible directions, and ask them to try to agree which of these directions are appropriate. The final directions will usually include the actual hearing date. In some cases the Tribunal may hold a directions hearing (see below).

What happens at a directions hearing?

25. Directions hearings are usually conducted by the chairman or a deputy chairman, sitting alone. Sometimes the hearing takes place at a venue organised by the Tribunal, with everyone present; sometimes it is conducted by telephone. Either way the Tribunal will send the details to the parties in advance. Where there is a telephone hearing, the Tribunal will send out details of the number to call, and a pass-code. The parties join the telephone conference by way of an 0800 number. The cost of the administration of the system is undertaken by the Tribunal.

26. One of the purposes of a directions hearing is to clarify the issues in the case, so that everybody knows what needs to be addressed. For instance, if the public authority has already disclosed some information, the Tribunal may want to know what further information has been withheld, and why. Another purpose is to decide what needs to be done in order to prepare a case for a hearing, and to set a timetable for case preparation. Some of the steps that may need to be taken are summarised in paragraph 23. If for any reason you find cannot meet a deadline you can apply to the Tribunal for an extension of time to comply. Please note: the Tribunal is unlikely to agree to the application for an extension of time if it results in the hearing date needing to be changed. It is a good idea to copy your application to the other parties so they are not taken by surprise.

What should I do to make sure that the Tribunal has all of my documents?

27. The directions given by the Tribunal will usually include directions about who is responsible for preparing the bundle (i.e. the file of documents that will be placed before the Tribunal). Litigants in person will not usually be asked to take on this task. However, it is important that make sure that the party responsible for providing the bundle is given any documents that you want to be included in good time.

What is a “skeleton argument”, and must I prepare one?

28. A skeleton argument is a written summary or outline of the arguments that a party intends to make at a hearing. If a party is legally represented, the Tribunal will generally expect that a skeleton argument is given to the representative. The document is usually sent to the Tribunal, and to the other parties, in advance of the hearing.

29. The Tribunal’s directions will usually indicate whether skeleton arguments are required, and if so when. Even if you are not ordered to prepare a skeleton argument, it is a good idea to do so if you can. It will help the Tribunal to focus on your main points, and it will also help you make sure that you do not leave anything out.

30. As a very rough guide, skeleton arguments in short cases (lasting ½ day – 1 day) are likely to be between 5 and 15 pages long. Skeleton arguments in longer cases (lasting for 2 days) may be about 10-30 pages long. They should include references to any legal materials (i.e. extracts from legislation, or case law) that the party is asking the Tribunal to consider.

How will I know of the hearing date?

31. As explained above, you will have a good idea of the hearing date from the directions. However, you will receive a formal notice of the time and date of the hearing and a map or directions to the venue, at least 14 days beforehand.

What happens at a hearing?

32. A hearing may last as little as half a day; or it may take several days. Most hearings involving litigants in person are completed within one or two days.

33. The hearing will usually begin with the members of the Tribunal introducing themselves. There may be a short discussion to ensure that everyone agrees what the issues are, and to deal with “housekeeping” issues (e.g. making sure that everyone has all the necessary papers in front of them). In more complex cases, the Tribunal may invite or permit the parties to make a short opening statement explaining what their case is about.

34. The Tribunal will then hear any witness evidence. The usual order (though this is not always the case) would be for the Tribunal to hear any witnesses called by the party bringing the appeal; then to hear any witnesses called by the ICO; and then to hear any witnesses called by another party. Each witness will give evidence in turn. The witness will be questioned by the party who called them to give evidence (this is called “examination-in-chief”). The witness will then be questioned by other parties who wish to challenge their evidence (“cross-examination”). At the end of cross-examination, the Tribunal will usually ask their questions. In addition, the Tribunal may intervene in the course of evidence-in-chief or cross-examination with its own questions. After the Tribunal and other parties have asked their questions, the party who originally called the witness can ask for answers to be clarified, if necessary, and this is called “re-examination”.

35. The Tribunal often directs that written witness statements should be prepared and these are generally read in advance by the Tribunal. A witness will not usually be asked to read the statement aloud at the hearing. The party who originally called the witness may ask a few short questions to confirm that the contents of the written witness statement are true rather than asking questions during the examination-in-chief.

36. Lastly, the Tribunal will hear oral submissions from each party in turn. The usual order (although again this is not always the case) is for the Tribunal to hear submissions from the party bringing the appeal; then from ICO; and then from any other parties. This is the opportunity for each party to explain to the Tribunal what decision they are asking it to reach, and why. This is also the point at which any legal arguments are dealt with. In submissions, parties may ask the Tribunal to look at particular sections of the FOIA and EIR; they may also ask the Tribunal to look at earlier decisions of the Tribunal itself, or of the courts.

37. Oral submissions are often made using the skeleton argument as a framework, and then expanding it where necessary. Sometimes, where a point is dealt with in detail in the skeleton argument, a party will not deal with it at length in oral submissions, but will simply refer briefly to the relevant passage in the skeleton argument.

Can I be present throughout the hearing?

38. The general rule is that Tribunal hearings take place in public, and that all the parties (and anyone else who wishes to attend) can be present throughout.

39. There is however, an exception to this. Sometimes the Tribunal will need to look at “disputed information”: i.e. information that an individual says ought to be disclosed under FOIA or EIR, but that a public authority says is exempt from disclosure. The Tribunal may need to look at the disputed information in order to judge whether it is really within the scope of any exemption claimed by the public authority.

40. When the Tribunal looks at disputed information in this way, it may be necessary for part of the hearing to take place in private. A hearing from which the person who requested the information, the public and some of the parties are excluded in this way is referred to as a “closed hearing” or a “closed session”. This is in contrast to an “open hearing”, where all parties and the public can be present. If you are required to leave the hearing because it goes into closed session you should bear in mind that this will be for an unpredictable period of time.

41. The Tribunal arranges a hearing if a person has asked for information which is considered to be disputed; the request has been denied and the person is appealing that denial. During the closed session, this disputed information will be looked at by the panel. The reason that parties are excluded from the closed session is that if the disputed information is given to the requester during the hearing, the whole appeal process would be rendered pointless.

42. Similarly, the Tribunal sometimes directs that written submissions or skeleton arguments that refer to the content of the disputed information should be prepared on a “closed” basis: this means that the information will not be given out to the person who asked to see the disputed information.

Will the other parties be represented by lawyers?

43. The ICO will usually be represented by a lawyer. This may be someone employed by the ICO, or it can be an external barrister or solicitor.

44. If the public authority is a party, then it will usually be represented by a lawyer. Again this may be someone employed by the public authority or it may be an external barrister or solicitor.

How is the Tribunal made up?

45. The Principal Judge for Information Rights cases is Professor John Angel. There are fifteen other judges, all judges are lawyers. In addition there are a number of non-lawyer members (sometimes known as “lay members” or “wing members”). The wing members are grouped into those who reflect the interests of public authorities and those who reflect the interests of people who are asking for information from Public Authority.

46. Directions hearings are usually conducted by the judge sitting alone. The hearing itself will be conducted by a full Tribunal of three members, consisting of the judge and two wing members, one from each group.

How formal is the hearing?

47. Tribunal hearings are less formal than hearings in the High Court or the County Court. For instance, everybody sits down throughout the hearing (though as a courtesy you may be asked to stand when the Tribunal enters the room). The Tribunal and lawyers will wear suits, not wigs and gowns.

48. However, as an example, in comparison with an ordinary business meeting a Tribunal hearing is a fairly formal process. There is a set order of events, as explained above: witnesses are called, the parties and the Tribunal take turns to question them, and then the parties make their submissions in turn. If you disagree with something one of the other parties says in their submissions, you will need to wait until it is your turn to speak.

Is the Tribunal used to dealing with people who represent themselves?

49. In about 60% of Tribunal cases, the appeal is brought by the person who requested information from a public authority. In the great majority of these cases that person will represent themselves. The Tribunal is therefore very used to dealing with litigants in person. The members of the Tribunal, and in particular the chairman, will do everything possible to make sure that you understand the process and that you have a fair hearing. If at any point you do not understand what is happening, or why, you should say so.

Am I allowed to have a friend to help me at the hearing?

50. Yes. You can have a friend with you who can, for instance, take notes and give you advice as to how you conduct your case.

Can I be represented by someone who is not a lawyer?

51. In principle the answer is, yes.

52. If you are attending the hearing with someone who is there to help you, then you will need to decide in advance who will present the case. One option will be for you to represent yourself, with the other person giving you advice and support. Alternatively, the other person could present the case.

53. What the Tribunal may resist, however, is a situation where you ask questions of witnesses, or make submissions, and in addition somebody else acting on your behalf asks questions or makes submissions. If you particularly want to conduct your case this way, make it clear and ask the Tribunal’s permission at the beginning of the hearing.

54. However you plan to present your case, it is important to decide beforehand what roles you and the person accompanying you propose to take.

I would like to be represented by a lawyer at the hearing but I cannot afford to pay. Is there anything I can do?

55. Legal aid is not available to fund representation in the Tribunal.

56. However, there are organisations which may be able to provide legal representation free of charge, such as the Bar Pro Bono Unit, Caseworks and Friends of the Earth’s Rights and Justice Centre. To find out their contact details you should visit the Tribunal’s web site at http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/information-rights/appeals/how-to-appeal.htm

These organisations are all independent of the Tribunal and the Tribunal has no control over whether they will be able to represent you. These organisations have their own rules as to what sort of case they take on, and there is no guarantee that they will be able to help you.

What powers does the Tribunal have?

57. The Tribunal’s task is to decide whether the ICO’s decision was right, or whether it should be overturned or varied (changed in someway). That means that the Tribunal is concerned with whether the public authority dealt with your request for information in accordance with FOIA and EIR.

58. Your request for information may be one aspect of a wider dispute between yourself and a public authority. The Tribunal will not be able to decide which of you is right in the wider dispute. For instance, you may be involved in a dispute about whether you owe money to a public authority; and as part of that dispute you may make a FOIA request for information. The Tribunal can consider whether your request has been properly dealt with, but cannot rule on whether or not you actually owe money to the authority.

Will I have to pay the other parties’ legal costs if I lose?

59. The usual rule in the Tribunal is that all parties bear their own legal costs regardless of who wins or loses. If you bring an appeal against the ICO’s decision, you are unlikely to be ordered to pay any costs unless the Tribunal thinks that your appeal was “manifestly unreasonable”, or that you have conducted the appeal unreasonably.

What can I do if I disagree with the Tribunal’s decision?

60. There is a right to appeal against the Tribunal’s decisions, to the Administrative Appeals Chamber of the Upper Tribunal. However, an appeal is only available on a point of law: in other words, you would need to be able to show that the Tribunal made a mistake of law in reaching its decision. In the same way as a First-tier Tribunal case, all parties will have to bear their own legal costs.

What is the status of these Guidance Notes?

61. These notes are intended to help people who are representing themselves. They are not an authoritative statement of the law. The provisions that govern the Tribunal’s work are set out in FOIA and EIR, together with the Tribunal’s rules of procedure and practice notes. These notes are not intended to modify those provisions in any way; rather, they are meant to help you understand how these provisions will operate in practice.

The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 can be found on the website, the address is:

http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/tribunals/tribunals-rules-2009-at010411.pdf

GLOSSARY

This section sets out a short explanation of words and phrases that may cause difficulty, either because they are unfamiliar or because they have a special meaning in the context of the Tribunal’s work.

Appellant

The party, who appeals against a decision from the Information Commissioner's Office (ICO), is called an appellant.

Authorities

Cases previously decided by a Court or Tribunal, relied upon by a party in support of its argument.

Cast list

A document listing the individuals who are involved in the facts giving rise to an appeal, and explaining who each one is, this is sometimes helpful in cases that are factually complex.

Chronology

A document setting out a list, in date order, of the main events. Sometimes helpful in cases that are factually complex.

Closed hearing/closed session

A Tribunal hearing from which the public (and sometimes one or more of the parties) are excluded is called a closed hearing or closed session. This happens when the Tribunal needs to consider the actual content of any disputed information.

Cross-examination

Cross-examination is the questioning of a witness in order to challenge or undermine the evidence of that witness. In general, if you call a witness to give evidence then you are not allowed to cross examine that witness: i.e. you cannot usually ask your own witness questions designed to show that what they are saying in evidence is wrong.

Directions

Instructions from the Tribunal to the parties as to the steps they are to take to prepare for a hearing.

Disclosure

The process by which each party informs the others of what documents it has that are relevant to the appeal, and provides copies of them if necessary. Discretion

Sometimes legislation leaves a decision-maker to make a choice between different courses of action in the light of all the circumstances, rather than setting out a fixed rule about what must happen in particular circumstances. In this situation the decision-maker is said to have a discretion as to how it should act.

Disputed information

In many of the cases that come before the Tribunal, a public authority admits that it holds the information requested (or some of it) but argues that it does not have to disclose the information, e.g. because an exemption applies. The information in question is often referred to as “the disputed information”.

Examination-in-chief

At the start of the evidence of a witness, the party who called that witness has the opportunity to ask questions.

Legislation

In general this consists of Acts of Parliament (otherwise referred to as statutes), and regulations (otherwise referred to as statutory instruments).

Open hearing

A Tribunal hearing to which all of the parties, and the public, are admitted.

Party

The persons or organisations who take part in the appeal process are referred to as “the parties”. The parties will always include the [Information Commissioner], and the person bringing the appeal.