J’accuse! Zola in the Court of Appeal

August 1st, 2016

FOIA does not have a particularly illustrious history in the Court of Appeal. Very few of the judgments which have issued from those august halls provide wider appellate guidance of the type generally useful from the higher courts, and some have been so deathly dull (I’m looking at you, Innes) that even the data protection cases look exciting. So it is with the Court of Appeal decision in Department for Work and Pensions v Information Commissioner & Zola [2016] EWCA Civ 758.

The vast majority of the discussion of the three (three!) judgments of the Court revolve around purely case-specific issues about the way in which the FTT handled the evidence and made its factual findings. It is never fascinating news for the reader when a perversity challenge takes up most of the space in the judgment, or where at least some aspects of an appeal fail because the majority think it really amounted to a reasons challenge which had not been pursued. Those who are fascinated with the details of Workfare and have nothing better to do, perhaps because they hate watching the Olympics or something, are directed to the full judgment.

In summary, the Court unanimously agreed that the FTT had correctly directed itself on the law as to the nature of commercial interests under section 43(2) and the approach to prejudice under section 36(2)(c); agreed on the test applicable to perversity challenges but differed as to its application on the facts (Lord Dyson MR and Sir Stephen Richards dismissing the appeal, Lloyd-Jones LJ dissenting); and dismissing the appeal as to the public interest balance under section 36(2)(c), again on a majority basis on the facts.

There are a small number of confirmatory nuggets from the judgments – chiefly that of Lloyd-Jones LJ (as to which there was no difference on the legal principles) – which may be worth briefly summarising:

  • The meaning of “commercial interests” in section 43(2) is wide, and wide enough to cover loss of income, profits, donations and volunteer workers, although not to public spending or the costs incurred in the administration of a social welfare scheme: at [18] and [21].
  • The approach to prejudice set out in the well-known (almost trite) judgment of the FTT in Hogan & Oxford City Council v Information Commissioner [2011] 1 Info LR 588, applying that set out in R (Lord), is assumed to be the correct approach: at [27].
  • A perversity challenge to a specialist tribunal must reflect a measure of respect owed to that expertise, which should be seen in a slowness to interfere with findings or factual evaluation where that expertise has a bearing. The test can be relevantly summarised as paying the appropriate respect to a decision of a specialist tribunal: at [34].
  • The opinion of the qualified person is entitled to some weight in the public interest balance, but the amount of weight will be a matter for the FTT in the light of the issues involved. It does not greatly matter when in the balancing exercise this is done: at [55]-[56], and [66].

Not a great return from 77 paragraphs, but as one of the DWP’s former Workfare partners might put it, every little helps.

Christopher Knight

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