Decisions by the Upper Tribunal on whether to grant or refuse permission to appeal to it are rarely of any note; however, last month Upper Tribunal Judge Wikeley directed that his decision on the Information Commissioner’s application for permission to appeal to the Upper Tribunal against case management directions of the First-Tier Tribunal be given a neutral citation in order that it could be published.

The application for permission to appeal related to directions made by the First-tier Tribunal concerning who was to make up the bundles in an appeal by the Department for Health and Social Care (DHSC) against one of the Commissioner’s decisions. Two sets of directions had been made in relation to the bundles; the last of which clarified that the Commissioner (as respondent) was to make up the open bundle and the DHSC (as appellant) was to make up the closed bundle. The requester, Access Social Care, did not participate in the hearing before the Upper Tribunal.

The Commissioner was, in effect, challenging the application of guidance issued by the General Regulatory Chamber in relation to bundles, known as the Bundles Guide. This guidance applies to the full range of cases heard by the GRC and not just those within the Information Rights jurisdiction. At 2.1 the guide states:

“In this Tribunal, because the Respondent (the regulator) is a public body and is usually represented by legal professionals or other officials, they will normally be expected to put together the bundle and send it to you and the Tribunal. Even though you will not usually be expected to produce a bundle, you might still find it helpful to read the Notes for Bundle Providers section below.

Sometimes the Respondent may ask the Tribunal to direct that you should provide the bundle, but that is unusual. If that happens a decision will be made by a Tribunal registrar or judge, after considering any comments you have.”

The expectation that the regulator will prepare the bundle in appeals is also repeated at the beginning of Part 3 of the guide.

The Commissioner was taking issue with the directions in this case on two fronts. Firstly, that the failure of the FTT judge to give reasons for her direction and had misdirected herself as to the relevant law. The second was that the Judge’s direction was unreasonable and contrary to the overriding objective. The Upper Tribunal held a “rolled-up” hearing in relation to the application for permission to appeal.

Ground 2
The Upper Tribunal first turned to the second ground of appeal by the Commissioner. The Commissioner argued that, in this case, the DHSC should have been required to prepare the bundles. Counsel for the Commissioner advanced four arguments in support of this: (1) the DHSC was a well-resourced public body which was represented by legal professionals; (2) the DHSC had access to all the relevant documents; (3) it was the choice of the DHSC to bring the appeal whereas the Commissioner had no choice but to be a party; and (4) that if the DHSC had instituted judicial review proceedings, it would have borne the burden of preparing the bundles.

The Upper Tribunal found none of these arguments to be persuasive. In relation to the first argument, the UT Judge said that the “argument assumes that the explanatory consideration in paragraph 2.1 of the Bundles Guide necessarily underpins the usual expectation in Part 3 that the regulator prepares the bundles.” [ 27] The UT Judge pointed out that Part 2 of the guidance was confined to giving guidance to unrepresented parties whereas Part 3 applied across all of the GRC’s jurisdictions. [27]. The UT Judge further went on to state that the guide set out “clear delineation of the default (and usual but not immutable) position of the regulator’s responsibility for bundle preparation.” [27].

In relation to the second argument advanced by counsel for the Commissioner, the UT Judge held that it was “simply not correct” [28]. Counsel for the DHSC had argued that no single party had access to all the documents. In FOI cases, there would usually be correspondence passing between the requester and the Commissioner that the public authority sees for the very first time in the hearing bundle. [28]

Turning to the third argument advanced on behalf of the Commissioner, the UT Judge noted that in every FOI appeal before the First-tier Tribunal that the Commissioner is a “conscript rather than a volunteer”, that is the case whether the appellant is the requester or the public authority. [29] Under reference to Browning v IC and Department for Business, Innovation and Skills and Greenwood v IC and the Commissioner of the Police for the Metropolis the UT Judge concluded that this position reflected the Commissioner being the effective statutory guardian of the Freedom of Information Act 2000. [29]

Finally, addressing the fourth argument advanced on behalf of the Commissioner, the UT Judge considered that it didn’t take the Commissioner’s argument anywhere. The UT Judge stated that “[t]he FTT jurisdiction is consciously different from Part 54 CPR proceedings, and in any event in the latter arena the Department would be at risk of all costs and not just the cost of producing the bundle.” [30]

The UT Judge made it clear that what the Upper Tribunal was faced with in these proceedings was not an application for judicial review of the bundle guidance by the Commissioner [31] (which would be very much out of time, the bundle guide having been issued by the GRC President more than a year ago). What the Upper Tribunal was concerned with here was the much narrower question as to whether the direction in relation to the preparation of bundles in this specific case was plainly wrong. [31]. The UT Judge concluded that he did “not regard it as arguable that the FTT’s bundles direction was Wednesbury unreasonable.”

The Commissioner’s challenge to the directions, insofar as it was based on the overriding objective was equally unsuccessful. Here, it was argued on behalf of the Commissioner that the First-tier Tribunal had essentially disregarded rule 2(2)(a) of the Tribunal’s rules of procedure which required the Tribunal, as part of the overriding objective, to take account of the parties resources. In response to that argument, the UT Judge stated, at [33]

“There are at least three difficulties with this submission. The first is that the logical end-point of this submission is that the FTT should have considered the comparative budgets of the parties, a task which is completely unrealistic in practice. The second is that although consideration of resources is in very general terms relevant to the overriding objective, and underpins paragraph 2.1 of the Bundles Guide, it provides no real assistance in differentiating between the situation of the Information Commissioner and a central government department, each of which will face competing calls on their doubtless limited budgets to defend their decisions in litigation. The third is that in any event rule 2 mandates a multi-factorial assessment of competing considerations, not all of which may point in the same direction. The balancing of those considerations when making case management directions is quintessentially a matter for the good judgement of the tribunal charged with the conduct of the proceedings.”

Ground 1
The Commissioner’s reasons challenge did not fare any better. It was common ground that the FTT Judge had not given reasons at the time of giving the amended direction which required the Commissioner to produce the open bundle and the DHSC to produce the closed bundle. At paragraph [40], the UT Judge held that “[t]he default position, therefore, is that there is no categorical expectation in the statutory scheme governing the FTT’s procedural rules that reasons need to be given for a tribunal’s case management direction.”

Having dealt with what the rules required, the UT Judge then went on to consider whether there was any basis in the case law for reasons being required. Counsel for the Commissioner had relied heavily upon the judgment of Underhill LJ in R (LND1 & Ors) v Secretary of State for the Home Department. Counsel for the Commissioner did recognise that the subject matter facing the Court of Appeal was very different from that which was before the Upper Tribunal. LND1 concerned whether an Afghan judge qualified to be relocated to the United Kingdom. It was a judicial review challenge to an administrative decision by the Home Office in a matter that could potentially be, quite literally, life and death for the Afghan judge concerned. The Court of Appeal’s judgment was consequently “of very limited assistance in the current proceedings.” [42]

The UT Judge went on to consider the judgments of the Court of Appeal in Carpenter v Secretary of State for Work and Pensions and of the Upper Tribunal in KP v Hertfordshire CC (SEN) and Information Commissioner v Experian Limited. The UT Judge considered that the FTT Judge was dealing with a “tutored audience” who perfectly well understood where the battle lines were. The necessary and inevitable inference from the decision of the FTT Judge was that the submissions for the DHSC had been preferred for the reasons that it had given in its submissions. [48]

Permission to appeal was therefore refused on both grounds.

It is easy to see why the Commissioner might have taken this fight to the Upper Tribunal. His office is involved in a significant number of FOI appeals to the First-tier Tribunal every year. The default position is that in those cases his office bears the burden of making up the bundles. That takes time and there is therefore a cost associated with it in a jurisdiction where costs/expenses are typically not recoverable. If the Commissioner could shift that cost in at least some of the cases away from his office onto others, then that would represent a saving to his office’s budget.

However, it is also equally easy to see why the bundle guidance is what it is. Taking Information Rights cases as an example, in that jurisdiction many of the appeals are brought by requesters who are invariably not legally represented (if they are represented at all). Tribunals are supposed to be more informal, more flexible and less complicated than the courts and so, there is a justification for removing the burden of producing a bundle from individuals who know little about how courts and tribunals work and may, in the days of electronic bundles, lack software to put together a bundle. This is particularly true in a jurisdiction which is of constitutional importance.

The Bundle Guide lays down a default position, but it is not a position that cannot be changed in an appropriate case. The UT recognised that it was not an immutable position at [27]. It remains open to the Commissioner to suggest to the First-tier Tribunal that a public authority appellant ought to produce the bundles in such cases and the Tribunal retains the discretion to make such a direction. However, if the Tribunal chooses not to then it’s not going to be a decision that is open to challenge with any great prospect of success. So, for now at least, the Commissioner appears to be stuck with the burden of making up bundles in all, or at least nearly all, FOI appeal cases before the First-tier Tribunal.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}