TRIBUNAL’S STRIKE-OUT OF ‘ACADEMIC’ APPEALS

December 2nd, 2010 by Robin Hopkins

In Edwards v IC and the Ministry of Defence (EA/2010/0056), the Tribunal has exercised its power to strike out a party’s case under Tribunal Procedure (First-Tier Tribunal) (GRC) Rules 2009. This was done partly on a lack of reasonable prospects of success, and partly on jurisdictional grounds: some of the appellant’s grounds of complaint invited the Tribunal to “monitor or influence” the way in which the Commissioner had carried out his statutory duties, or the way in which the public authority had done so. The Tribunal has no jurisdiction over such matters. 

Perhaps more interestingly, this was a case where the appeal was in effect academic, as the requested material had already been given to the appellant. The grounds on which a Tribunal may strike out an appeal are contained in rule 8(3) of the 2009 Rules: lack of reasonable prospect of success, non-compliance with an order or failure to co-operate with the Tribunal “to such an extent that the Tribunal cannot deal with the proceedings fairly and justly”.

At first glance, it is not obvious how any of those three exhaustive categories accommodate appeals which have become academic due to events post-dating the handling of the relevant request. The Tribunal in Edwards has provided its answer. The key provision is rule 8(3)(b), which concerns the fair and just dealing with proceedings. By rule 2(2) of the 2009 Rules, this includes considerations of proportionality, costs and resources. Rule 5 empowers the Tribunal to regulate its own procedure. In particular, rule 5(2) allows it to give a direction in relation to the conduct or disposal of proceedings at any time.

The combination of rules 2 and 5 can therefore suffice to engage rule 8(3)(b) and support a strike-out even where questions of jurisdiction or lack of reasonable prospects of success are not in play.

 

LITIGANTS MAY – WITH THE TRIBUNAL’S LEAVE – PUBLISH PLEADINGS WHILE A CASE IS ONGOING

September 8th, 2010 by Robin Hopkins

Mr Todd has lodged an appeal against a decision notice of the Commissioner involving the BBC. He will be a litigant in person at the Tribunal hearing. He applied to the Tribunal for permission to publish on his blog the pleadings lodged by the Commissioner and the BBC, so as to “recruit advice and assistance from other members of a wide community of on-line democratic activists who may have relevant and informal contributions to make to my case”. In other words, he argued that publication would help him achieve equality of arms.

Neither the Commissioner nor the BBC objected to his doing so in this particular case. The Commissioner, however, contended that litigants had no automatic right to publish pleadings in a ‘live’ case, but could only do so with the leave of the Tribunal on a case-by-case basis. The BBC on the other hand, contended that the Tribunal had no power to authorise such publication under the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

The Tribunal agreed with the Commissioner (see its ruling here), and authorised the publication of the pleadings in this case. It is therefore theoretically open to litigants in person to take this approach – but only with the permission of the Tribunal. Importantly, the Tribunal’s reason for allowing publication in this case appears to have been the lack of objection by the other parties and not Mr Todd’s ‘equality of arms’ argument, which it expressly rejected. It seems then that the views of the respondents will be crucial to any such applications in future.

 

RECENT TRIBUNAL RULINGS – RISKS FOR APPELLANTS

July 15th, 2010 by Anya Proops QC

The Tribunal has recently issued a ruling highlighting the dangers for a public authority if it submits an inadequately reasoned notice of appeal. In Westminster City Council v IC (EA/2010/0096), the Council had submitted a notice of appeal against the Commissioner’s decision notice within the 28 day time limit allowed for under rule 22 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). However, the notice of appeal merely asserted that the Commissioner had erred in deciding that the EIR 2004 rather than the FOIA applied to the disputed information. The notice did not contain any grounds for this assertion. Thereafter, the Tribunal ordered the Council to provide grounds for its appeal. The Council was given a week to provide the relevant grounds. The Council missed that deadline. Moreover, it did so in circumstances where it had not notified the Tribunal that it needed an extension of time for lodging the grounds. The Council invited the Tribunal to overlook the three day delay in submitting the grounds. It alleged that the delay was due to staffing difficulties; the need to take legal advice; a failure to understand the tribunal procedures and a failure properly to record the date set by the Tribunal for submission of the grounds. The Tribunal refused to accept these arguments. It held that the Council was a large authority with a specialised in-house FOIA department; that an alleged lack of resources was not a valid excuse and that advice should have been sought at an earlier stage. Accordingly, the Tribunal refused to accept the grounds. There are two lessons to be derived from this ruling. First, an appellant which fails adequately to particularise its case in its notice of appeal or otherwise to follow up the notice promptly with fully reasoned grounds may well end up losing the right of appeal altogether. Second, where there are concerns that a tribunal deadline may be missed, the affected party should always consider notifying the tribunal of that fact and seeking an extension of time.

In a separate development, the Tribunal recently decided in Thackeray v IC (EA/2010/0088) that an appellant would not be allowed to proceed with his appeal in view of his refusal to provide the Tribunal with a postal address. Mr Thackeray had provided an email address in his notice of appeal but refused to provide a postal address, allegedly because he was concerned that he would face harassment if the address was disclosed. Mr Thackeray argued that provision of an email address was sufficient in order to meet the requirements of rule 22(a) and (c) of the Rules. The Tribunal decided that the notice of appeal would be invalid in the absence of the provision of a postal address. The Tribunal took the view that a postal address was a pre-requisite not least in view of: (a) the fact that parties may want, for reasons of security, to deliver documents directly rather than by email; and (b) a postal address would be required to protect the position of the other parties in the event that costs were awarded against the appellant. Unfortunately, neither of these rulings can at present be found on the Tribunal website.

 

PREPARATION OF WITNESS STATEMENTS – SOME DOs AND DONTs

July 12th, 2010 by Anya Proops QC

In a paper which I delivered at the 11KBW Information Law seminar in May 2010, I identified a number of tips designed to assist parties in preparing for hearings before the information tribunal – the paper can be found here. Very recently, the tribunal has handed down a decision which highlights the dangers to a public authority if it fails to ensure that any witness statements generated for the purposes of the tribunal hearing are sufficiently full and illuminating: Metropolitan Police Service v IC (EA/2010/0006).

The MPS case involved a request made to the MPS for disclosure of information as to how much money Croydon Police had spent on paying informants in the preceding three years. The MPS refused disclosure of the requested information relying on a range of exemptions, including s. 30 (criminal investigations) and s. 31 (law enforcement). The Commissioner upheld the applicant’s complaint against the refusal notice. In the course of the appeal to the tribunal, the MPS produced witness statements in support of its case on appeal. However, as it happened, the significant evidence given by these witnesses was only obtained through the process of cross-examination. The tribunal voiced serious concerns about the fact that the MPS had not included such evidence in its witness statements (which had been exchanged some time before the hearing) but had, instead, effectively ambushed the Commissioner by giving such evidence orally at the hearing. The tribunal noted that this was not the first time the MPS had adopted such a course in proceedings before the tribunal and that ‘there may be cost consequences for the MPS in future cases’ (see paragraphs 16-17). What this judgment highlights is the importance of generating witness statements which contain, so far as possible, the core evidential points upon which the authority wishes to rely in advancing its case. If parts of the evidence are highly sensitive, this does not justify withholding the evidence. Instead, it merely means that the authority should structure the witness statements so that any sensitive, confidential elements are dealt with in the closed statements (which are then considered in closed session.

The tribunal went on to hold that the disputed information was in fact exempt from disclosure under s 24 (the national security exemption – as to which see my earlier post below). The point to be noted here is that the case may never have come before the tribunal had the MPS: (a) identified that s. 24 was in issue at a much earlier stage; and (b) been full and frank with the Commissioner as to the reasons why the information was exempt under s. 24. 11KBW’s Ben Hooper was instructed on behalf of the Commissioner.

 

LATE EXEMPTIONS – THE LATEST TWIST

June 30th, 2010 by Anya Proops QC

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.

 

COURT OF APPEAL JUDGMENTS ON USE OF CLOSED MATERIAL PROCEDURE IN CIVIL LITIGATION

May 6th, 2010 by Anya Proops QC

On Tuesday of this week, the Court of Appeal handed down three important judgments on the question of how, in the context of civil litigation, courts should approach cases where the State is seeking to advance part of its case through a closed material procedure. The closed material procedure effectively operates to allow the State to put evidence and arguments before the court in closed session, which is to say in the absence of the other parties and their representatives. The excluded parties and their representatives will not be given access to any closed evidence or arguments. The procedure typically entails arrangements whereby the excluded parties will be represented in the closed session by a special advocate. All three appeals were decided by the same panel of judges, namely: Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ. The following is a summary of the judgments:

HOME OFFICE v TARIQ [2010] EWCA Civ 462 – T had been employed by the Home office as an immigration officer. T’s brother and cousin had been arrested in relation to alleged terrorist offences. The cousin was convicted and the brother released without charge. T was suspended from duty due to national security concerns. T, who was a Muslim of Asian/Pakistani origin, went on to bring claims in the employment tribunal of race and religious discrimination. The tribunal held that it had statutory powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to hear certain evidence relating to the claims in closed session, albeit that T would be represented in that session by a special advocate. The Employment Appeal Tribunal held that the decision to hear evidence in closed session was not unlawful but that T and his representatives should be informed of the gist of the closed material which was to be heard in the closed session. The Secretary of State appealed the decision that T should be told the gist of the closed material. T cross-appealed on the grounds that the convening of a closed session was itself unlawful under the European Directives from which his right to claim discrimination was derived and, further, under Art. 6 ECHR. The Court of Appeal, upholding the EAT’s judgment, held that: (a) the closed materials procedure, which entailed the use of a special advocate to represent T’s interests, did not contravene either the Directives or Art. 6 of the Convention; and (b) following Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2009] 3 WLR 74, T was entitled to know the gist of the closed material so that he could fairly and effectively pursue his claims.

 

BANK MELLAT v HM TREASURY [2010] EWCA Civ 483 – B was a bank which had been made subject to a direction under the Financial Restrictions (Iran) Order 2009. The order had been made pursuant to the Counter-Terrorism Act 2008. The Direction prohibited all persons operating in the financial sector from entering or participating in any transaction or business relationship with B. The basis of the Direction was that M ‘continued to engage in a pattern of conduct which supported and facilitated Iran’s proliferation-sensitive activities, that nuclear-related companies received funds from B, and that a company with alleged connections with other nuclear-related companies conducted business using B’. B sought to challenge the Direction under CPR 79. CPR 79 contains provisions allowing for a closed materials procedure to be adopted. T wished to treat certain evidence as closed evidence under the closed material procedure. B challenged T’s attempt to withhold the closed evidence from it. The High Court held that T was obliged under Art 6 of the Convention to afford B sufficient disclosure to enable it to give effective instructions about the essential allegations made against it. HELD: The Court of Appeal held that, where disclosure of evidence might be contrary to the public interest, Art 6 permitted a balancing exercise to be undertaken. However, in line with Tariq v Home Office, B should be given the gist of the information being withheld so that he could give effective instructions in relation to the case being put against him. The information provided to B had to be sufficient to enable B to give sufficient instructions not merely to deny, but actually to refute the essential allegations relied on by T.

 

BISHER AL RAWI & 5 ORS v SECURITY SERVICE & Ors [2010] EWCA Civ 482 – The appellants (X) appealed against a decision of the High Court that, as a matter of principle, it was open to the court to order a closed material procedure in the context of a civil claim for damages. X were former Guantanamo detainees. They had made various claims against the respondents (Y) including claims for damages for false imprisonment, trespass to the person, torture and negligence. Y invited the court to apply a closed material procedure which would enable them to rely on pleadings and evidence which would not be disclosed to X or their representatives, albeit that it would be disclosed to a special advocate representing X’s interests. Y argued that this approach was necessary in the public interest. X’s position was that it was not open to Y to use a closed material procedure and that its only option was to rely on the public interest immunity (PII) procedure. Under that procedure, any evidence which was subject to PII would be excluded altogether from the litigation process, which meant that neither party could rely upon it. Y argued that the closed material approach was preferable because the court would be more likely to arrive at a fair result if it could see the relevant material. HELD: The Court of Appeal, overturning the High Court’s judgment, held that it was not open to the court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. The Court commented obiter that different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations did not apply in the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no “triangulation of interests” would be involved.

 

What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security. They also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.