The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal [2011] UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Information Rights division of the Tribunals, the judgment is of general application.

The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.

The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ([2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ([2010] EWCA Civ 859; [2011] 2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.

The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.

It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).

Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.

The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.

For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland [2011] UKSC 29.