Appealing or Unappealing? The Appellate Role in Specialist Tribunals

December 21st, 2016

It is coming up to the end of the year, and what better gift could Panopticon provide for its litigious readers than a reminder of the principles applicable to the appellate tribunals and courts? I know, almost impossible to imagine anything more fun isn’t it? Think of this as the equivalent to that new set of socks you got given: boring but practically important when you wake up half cut one morning with the cat having stolen half your footwear. You never know when you might need a helpful collation of principles to ward off the Upper Tribunal from that hard won wool you pulled over the eyes of the First-tier Tribunal.What are these principles then, I hear no-one ask? Well, Gross LJ nicely enumerated them in Criminal Injuries Compensation Authority v Hutton [2016] EWCA Civ 1305 at [57]-[58] and it is easiest to simply set them out:

“57. Pulling the threads together:

i) First, this Court should exercise restraint and proceed with caution before interfering with decisions of specialist tribunals. Not only do such tribunals have the expertise which the “ordinary” courts may not have but when a specialised statutory scheme has been entrusted by Parliament to tribunals, the Court should not venture too readily into their field.

ii) Secondly, if a tribunal decision is clearly based on an error of law, then it must be corrected. This Court should not, however, subject such decisions to inappropriate textual analysis so as to discern an error of law when, on a fair reading of the decision as a whole, none existed. It is probable, as Baroness Hale said, that in understanding and applying the law within their area of expertise, specialist tribunals will have got it right. Moreover, the mere fact that an appellate tribunal or a court would have reached a different conclusion, does not constitute a ground for review or for allowing an appeal.

iii) Thirdly, it is of the first importance to identify the tribunal of fact, to keep in mind that it and only it will have heard the evidence and to respect its decisions. When determining whether a question was one of “fact” or “law”, this Court should have regard to context, as I would respectfully express it (“pragmatism”, “expediency” or “policy”, per Jones), so as to ensure both that decisions of tribunals of fact are given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field.

iv) Fourthly, it is important to note that these authorities not only address the relationship between the courts and specialist appellate tribunals but also between specialist first-tier tribunals and appellate tribunals.

  1. For my part, in applying this authoritative general guidance to this particular appeal, a number of considerations seem pertinent:

i) First, it is the FTT – not the UT – which is the tribunal of fact and which heard the evidence.

ii) Secondly, the UT’s jurisdiction is limited to one of judicially reviewing the FTT Decision. The UT had no jurisdiction to interfere with the FTT Decision, absent a public law error.

iii) Thirdly, even with the observations in Jones well in mind, I cannot see that this case was one calling for guidance from the UT to shape the development of law and practice in respect of claims under the Scheme. It follows that in classifying issues before the FTT as those of “fact” or “law”, questions of context (designed to facilitate the giving of general guidance by the UT) can have, at most, only very limited bearing.”

And that, probably, is all you are likely to need for the near future in seeking to politely keep the Upper Tribunal within its proper appellate role, no matter how tempted it may be to roll up its sleeves and get stuck in.

With the cockles of your hearts now suitably warmed, do have a lovely Christmas and New Year break!

Christopher Knight

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