[29]“29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is was Elias J held. I do not consider that he put an unwarranted gloss on the words "no reasonable prospect of success". It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level. ”[11]Furthermore, in JP v Standards Committee of Surrey County Council [2011] UKUT 316 (AAC) Judge Jacobs held that there was “no significant difference in meaning between ‘reasonable prospect of the appeal being successful’ and ‘realistic prospects of success’” (at [16]) and noted that, in a different context, the Court of Appeal has decided that ‘no realistic prospect of success’ can for practical purposes be taken to mean the same as ‘clearly unfounded’: R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 at [10]. The application of those principles in the present case12. I am satisfied that the FTT erred in law in the approach it took to Rule 8(3)(c) in all the circumstances of this case.13. The ICO’s Response to the appeal ran to 8 pages. The submission writer considered Mr Wise’s three grounds of appeal, one of which was that the Commissioner had been wrong to find that the requested information was not held by the public authority. It was pointed out that the test in that respect was whether information is held on the balance of probabilities rather than certainty, and that Mr Wise’s argument that there is “no guarantee that there is no recorded information” was misconceived (ICO Response at [24]). More generally, it was argued that Mr Wise’s various points were not addressed to the issue which the Commissioner had to determine (at [25]).14. The Tribunal Judge in his ruling dated 1 November 2011 adopted the ICO’s arguments as set out in the previous paragraph. Mr Wise, it was said, had misunderstood the ICO’s functions and the FTT’s powers (which may well be right). Moreover, the judge ruled, Mr Wise’s representations were off the point – he had not addressed the points of concern but rather “restated his initial case in a more belligerent fashion”. Mr Wise’s submissions may well have been belligerent – but were they all off the point?15. Mr Wise’s written submissions are, with respect, not always easy to follow. They are written in long detailed and dense paragraphs which make it difficult always to ascertain the precise point being made. However, one matter at least was clear in this case. In his submissions, Mr Wise had drawn attention to what he regarded as a fundamental contradiction between the terms of the two Decision Notices.16. First, in the Decision Notice on Request 1 , which related to the more general FOIA request for information about reports of thefts of tram cable, the value of such losses was said in passing to be £135,000, as reported by the local press. It was stated that this was “understood to be the estimated cost of replacement cable, extrapolated from invoices for smaller quantities of similar cable” (FS50310644 at [15]).17. Second, in the subsequent Decision Notice on Request 2, the £135,000 figure was said to have been provided “verbally, on the spot” by a council employee to a reporter, based on the employee’s experience and knowledge (DN FS50358805 at [13]). The Commissioner accepted that account as to how the figure of £135,000 had been calculated, i.e. by simply “working out in the head” (at [18]).18. The account accepted in the second Decision Notice may or may not be accurate. If it was indeed calculated in that manner, and “on the hoof”, then it is certainly difficult to see how the information could be “held” by the public authority. However, the finding in the Commissioner’s previous Decision Notice in Request 1 ( FS50310644) at least cast some doubt on that explanation. It is possible, I suppose, that the two statements are not in conflict. It may be that the statement in the first Decision Notice was simply a shorthand way of describing what was described in the second Decision Notice in a little more detail. However, undoubtedly one reading of the statement in the first Decision Notice is that it referred to documentary information held by the public authority.19. As such, there was then plainly a contested issue of fact to be resolved and it is difficult to see how the appellant’s case was one where there was simply “no reasonable prospect of the appeal being successful”. It may not have been a strong case – whether or not that was so would depend on the outcome of the evidence being tested – but it was not a hopeless case. Rather, this was a case where there was, as Maurice Kay LJ put it, “a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence”. Conclusion20. I therefore conclude that this appeal must be allowed. The FTT’s strike out ruling is set aside and the case is sent back to the FTT for hearing. A FTT judge will doubtless give directions for the hearing. Signed on the original Nicholas Wikeley on 14 January 2013 Judge of the Upper Tribunal