“...It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently”
“26. However, it does not seem to me to be appropriate to give guidance in that form. There is no provision in the 2008 Rules in the terms ofCPR Rule 3.9 , and it does not seem to me right to import it by way of analogy. The power to extend time is unfettered, and the circumstances which will be relevant in exercising it will vary from case to case. Black J. was of that view in Howes v Child Support Commissioner[2007] EWHC 559 (Admin) . That was a claim for judicial review of a decision of my own, sitting as a Child Support Commissioner, refusing to admit out of time an application for permission to appeal against a decision of a child support appeal tribunal. The procedural rules then in force were not the same as those now applicable, in particular in that the Commissioners’ power to admit the application was one expressed to be exercisable for ‘special reasons’. In para. 39 Black J. said: ‘Mr Burrows does not produce any authority for importing theCPR 3.9 approach or even simply the checklist inCPR 3.9 (1) into theChild Support Commissioners (Procedure) Regulations 1999 . I note that in the case of Sayers v Clarke Walker upon which he relies as a useful explanation of the operation in practice ofCPR 3.9 , the Court of Appeal referred back to the earlier case of Audergon v La Baguette in which it had deplored the creation of judge-made checklists which it considered an approach which carried the inherent “danger that a body of satellite authority may be built up … leading in effect to the rewriting of the relevant rule through the medium of judicial decision.”
“OFSTED complains that in cases in which it is involved, the power under rule 5(3)(a) is, or might be, exercised inconsistently and seeks guidance from the Upper Tribunal on how that power should be exercised. However, the power is expressed in deliberately wide terms and the facts of each case vary enormously. The rules already provide that the power must be exercised fairly and justly and so as to avoid delay ‘so far as compatible with proper consideration of the issues’. Any further guidance by the Upper Tribunal would either be so general as to be meaningless or would be likely to spark time-consuming and unnecessary satellite litigation.” 52. Counsel for Ofsted in that case, as had Mr Pitt-Payne in the present proceedings, had sought to rely on the observations of the Court of Appeal in Jurkowska v Hlamd Ltd[2008] EWCA Civ 231 ,[2008] ICR 841 on extensions of time. Judge Levenson was not persuaded by the analogy, pointing out amongst other matters that employment tribunal proceedings were more adversarial and the structure of proceedings totally different (at paragraph 38). I agree with Judge Levenson that caution needs to be exercised in that regard. 53. Judge Levenson concluded as follows (at paragraph 41): “Ultimately these are questions of judgment of the facts and circumstances of each particular case, on which there is in the present case no basis for the Upper Tribunal to substitute its own for that of the First-tier Tribunal (see, for example, the decision of the Court of Appeal in Walbrook Trustee (Jersey) Ltd and Others v Fattal and Others[2008] EWCA Civ 427 at paragraph 33).” 54. I agree. I should add that I have not sought further submissions from either Mr Pitt-Payne or Professor Sikka on this very recent decision as it seems to me to be entirely consistent with the approach adopted by Black J. in Howes v Child Support Commissioner and by Judge Turnbull in CD v First Tier Tribunal (CICA) . The approach to late appeals in other Chambers of the First-tier Tribunal 55. It is not just the Upper Tribunal which has considered the issue of late appeals. At first instance, the question of the principles to be applied when determining whether to extend time to admit a late appeal has been considered on several occasions by the Tax Chamber of the First-tier Tribunal (“FTT(TC)”). In early decisions the FTT(TC) made express reference, when deciding whether to extend time under the parallel rule 5 in that jurisdiction, to the considerations set out inCPR Rule 3.9 (see e.g. NVM Private Equity Limited v Commissioners for HMRC[2010] UKFTT 106 (TC) , Leliunga v Commissioners for HMRC[2010] UKFTT 229 (TC) and B Fairall Ltd (in Liquidation) v Revenue & Customs[2010] UKFTT 305 (TC) ). 56. However, later tribunals in the FTT(TC) have declined to follow that approach. In Pledger v Commissioners for HMRC[2010] UKFTT 229 (TC) the FTT held as follows, having considered Leliunga : “...This Tribunal declines to follow that approach; in a situation where the Tribunal’s own Procedure Rules set out a general obligation to deal with cases fairly and justly, and set out a number of general principles for interpreting what is ‘fair and just’, we do not consider it appropriate also to pay specific regard to entirely unrelated rules which set out a non-exhaustive list of circumstances to be considered by courts in other applications”
“56. ... the Rules (which govern our procedure) simply empower us to extend time in appropriate cases and we should exercise the discretion to do so in order to give effect to the overriding objective in rule 2(1) of the Rules to deal with cases fairly and justly. We note, and respectfully adopt so far as it relates to the absence of any equivalent provision toCPR 3.9 (1) in the Rules, the reasoning of Black J. in R (o.a.o. Howes) v Child Support Commissioners ... 57. Exercising our discretion to give effect to the overriding objective may however, and often will in practice, involve consideration of some or all of the criteria (a) to (i) set out inCPR 3.9 (1).” 58. The point made in paragraph 57 of the tribunal’s decision in Former North Wiltshire District Council was also echoed more recently in Lupson v Commissioners for HMRC[2011] UKFTT 100 (TC) (at paragraphs 25 and 26). Again, I have not invited comments from Mr Pitt-Payne and Professor Sikka to these Tax Chamber decisions , which I only chanced across in the course of writing up this decision, not least as they are only first instance decisions which do not carry any precedential weight. However, I do simply note for the record that the more recent approach taken by the FTT(TC) in both Pledger and Former North Wiltshire District Council is entirely consistent with that adopted by Judge Turnbull in CD v First Tier Tribunal (CICA) and by Judge Levenson in Ofsted v AF . The significance of earlier delays by HM Treasury and the ICO 59. The chronology outlined above (see paragraphs 3-5) shows that Professor Sikka has so far spent more than four years trying to secure release of the Sandstorm Report. In deciding to extend time, Judge Angel noted in parentheses the delay taken from the date of the request to the time the Decision Notice was issued (see paragraph 16 above). The Information Commissioner has argued that this demonstrated that the judge had taken into account an irrelevant consideration. In his revised ruling on the application for permission to appeal, Judge Angel accepted that the delay in issuing the Decision Notice was not a material consideration but pointed out that the comment he had made about the previous delays was by way of an afterthought and had not been a factor in deciding whether or not to extend time. 60. I am satisfied that Judge Angel did not take into account the delays experienced before the issue of the Decision Notice. I regard his comment in parentheses by way of an aside, acknowledging or anticipating a point made by Professor Sikka. Reading the judge’s ruling as a whole it cannot be seen as having a material impact on his decision to admit the late appeal. However, at the oral hearing I questioned whether Judge Angel had actually been right to concede the point being made by the Information Commissioner. The question I put to Mr Pitt-Payne was that if the decision on whether to grant an extension of time is subject to the overriding objective in rule 2, and hence to the need to deal with cases “fairly and justly”, then surely it may be pertinent to consider earlier and indeed extensive delays by official agencies. The ordinary person might well consider that factor highly relevant to the issues of fairness and justice. Professor Sikka plainly does. 61. In answer to that question Mr Pitt-Payne made two powerful points. First, he argued that Parliament had not imposed any time limits on the Information Commissioner’s investigatory and decision-making processes, whereas there were clearly statutory time limits for lodging an appeal once the Decision Notice had been issued. Second, the contention that delays by e.g. the Commissioner should somehow excuse delays by appellants would not be conducive to the efficient administration of justice, as it would simply encourage further delay on the part of appellants. In this context I also note the observations of the FTT(TC) in Former North Wiltshire District Council v Commissioners for HMRC[2010] UKFTT 229 (TC) (at paragraph 71), where admittedly the period of delay in question was much longer: “An appellant’s tardiness in bringing an appeal must be considered independently of the time taken by HMRC to reach the relevant decision. The two actions are not comparable. It is only the appellant’s bringing of an appeal, and not HMRC’s reaching of the relevant decision, which engages the Rules and the Tribunal’s discretion.” 62. I can see the force of Mr Pitt-Payne’s arguments. However, I have not had the benefit of full argument on the issues and do not need to decide the point in the particular circumstances of this case. It may yet arise for determination in some future case. Judge Angel’s guidance in the original ruling 63. Mr Pitt-Payne has argued that Judge Angel’s guidance at paragraph 14 of his original ruling (see paragraph 17 above) was flawed for the reasons which I have already rejected above. But was Judge Angel right to proffer such guidance at all? In Howes v Child Support Commissioner Black J. noted that the Court of Appeal in Audergon v La Baguette[2002] EWCA Civ 10 had “deplored the creation of judge-made checklists which it considered an approach which carried the inherent ‘danger that a body of satellite authority may be built up … leading in effect to the rewriting of the relevant rule through the medium of judicial decision.’”
“The FTT has considered whether to review its decision under rule 43(1) of the Rules, taking into account the overriding objective in rule 2, and has decided that this is a case where its decision should be reviewed because the grounds of the application may raise an error of law.” 70. Rule 43(1) of the GRC Procedure Rules provides that “on receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 44 (review of a decision).”
“Review of a decision 44. –(1) The Tribunal may only undertake a review of a decision– (a) pursuant to rule 43(1) (review on an application for permission to appeal); and (b) if it is satisfied that there was an error of law in the decision. (2) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome. (3) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.” 71. Mr Pitt-Payne’s point was that paragraph 3 of the revised ruling demonstrated a misunderstanding by the judge of the review power – the FTT could only undertake a review if satisfied that there was an error of law (see rule 44(1)(b)), not that there might be such an error of law. I accept that analysis has some force. However, I do not think that the tribunal’s slip in this respect fatally undermined either the original decision to extend time or the revised ruling. I take into account that this was an early ruling under the new procedural regime when the FTT was still finding its way in operating the new rules. The lexicon of the new procedural rules was not fully engrained in the minds of tribunal judges. In essence I regard the judge’s reference to “review” in this context as merely a failure to use the correct statutory language to describe what he was in fact doing. To regard this as a material error of law would, I feel, be a triumph of form over substance. On that basis, I refuse the application for judicial review. 72. However, if I am wrong about that, and Judge Angel’s treatment of the review power was so far off the mark as to amount to a material error of law so as to ground a successful application for judicial review, I would in any event refuse the Information Commissioner relief. My reason for so saying is that the remedies available on judicial review are, of course, discretionary. They should not be granted where there is an adequate alternative remedy. In the present situation the Information Commissioner has an adequate alternative remedy, namely an application for permission to appeal against the revised ruling (insofar as it was not a refusal to review the original decision). 73. My analysis is as follows. The original ruling granting the extension of time and allowing the appeal to proceed involved the tribunal giving a direction under rule 5(2) and 5(3)(a) of the GRC Procedure Rules. That direction had in effect been given on Professor Sikka’s application (in his original Notice of Appeal) under rule 6(1) and (2). The tribunal’s ruling had been issued to the parties under rule 6(4). Rule 6(5) then provides that “If a party or any other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.”