AM v The Information Commissioner (Tribunal procedure and practice (including UT) : tribunal practice) [2014] UKUT 239 (AAC)

UKUT-AAC
AM v The Information Commissioner (Tribunal procedure and practice (including UT) : tribunal practice)
[2014] UKUT 239 (AAC) · 2014-05-23
[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. ”54. The critical factor in AW as to why the First-tier Tribunal had erred in law in striking out the appeal on the basis of “no reasonable prospects of success” was – per paragraph [19] – that there was “ plainly a contested issue of fact to be resolved ”.55. In R(Osborn) and others –v- Parole Board [2013] UKSC 61 ; [2013] 3 WLR 1020 , the issue was whether procedural fairness could require a person to be offered a hearing before the parole board where the legislation did not provide any right to such a hearing. Of relevance to this appeal is one of the facts identified by Lord Reed (with whom the other members of the Supreme Court agreed, which was likely to make an oral hearing necessary, namely:
“ Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. ”
Appropriately translated to information rights case in the First-tier Tribunal, those considerations seem in my judgment to echo what was said in AM and AW above 56. One other authority was drawn to my attention. This is a refusal of permission to appeal determination by Judge Wikeley in an information rights case concerning a Mr Ivan Ivanov, II –v- Information Commissioner [2013] UKUT 008 (AAC). The Information Commissioner relied on this case as supporting the view that it was not procedurally unfair for the tribunal to have stuck out the appellant’s case without a hearing. Mr Ivanov’s case (or at least the relevant parts of it) had also been struck out without a hearing on the basis that it had no reasonable prospects of success. 57. I shall assume in the Information Commissioner’s favour that this decision carries as much weight as an Upper Tribunal decision on an appeal, even though the standard or orthodox position is that normally determinations of permission to appeal applications do not carry such authority or weight. Reliance is placed upon paragraphs [24]-[25] and [37] in II and Judge Wikeley’s rejection of Mr Ivanov’s argument that “ he emphasised throughout that he had to have an oral hearing to present his case properly, and this was denied by [the First-tier Tribunal] ”. Judge Wikeley rejected this ground of appeal shortly and on the basis that “ Rule 32(3) expressly provides that [the tribunal may dispose of proceedings without a hearing ”. Judge Wikeley then later made these comments (in paragraph [37]):
“ The Rules make provision for parties to apply to the FTT to strike out part or all of an appeal to the FTT on various grounds. The FTT can also reach such a decision on its own initiative. Quite properly, there are various procedural safeguards in place in the Rules when such a possibility is under consideration. However, those safeguards do not include an automatic right to an oral hearing of the strike out application – precisely because the whole point of the strike out power is to dispose of unmeritorious appeals which should not be consuming valuable public resources such as judicial time. The IC was, therefore, entirely within his rights to make the application in this case – an application which in the event has been justified by the outcome both of Judge Pilling’s ruling and this determination. ” 58. It is argued by the Information Commissioner that this passage supports his case that the tribunal neither erred in law in not holding an oral hearing of the strike out application nor did it err in law in failing to reason out why it was not holding such a hearing. Analysis 59. In my judgment the tribunal erred in law for the following reasons. Rule 8(3)(c) says ‘may’ and not ‘must’ 60. The first is that on the face of its decision the tribunal misdirected itself as to the law by ruling that it must strike out the grounds of appeal under rule 8(3)(c) as disclosing no realistic prospect of success. Rule 8(3)(c) and its use of the word “may” plainly vests a discretion in the First-tier Tribunal as to whether to strike out an appeal even if it considers the grounds have no reasonable prospect of success. An example not wholly unadjacent to this appeal may be where the public authority no longer held the information at the time it was requested but the First-tier Tribunal considered the appeal should go to a full hearing in order to have the public authority explain why it had disposed of the information. I recognise, however, that this error is not key to this appeal, and it may even be argued it was not material to the tribunal’s decision. Failure to hold hearing 61. The second error of law, and in my judgment the key one and a plainly material error of law, was the failure of the tribunal to hold a hearing of the strike out application and/or its complete failure to reason out why no hearing of the strike out application was needed. 62. It may even be argued that the tribunal made a third error of law in striking out the appeal grounds it did on the basis that they had no reasonable prospects of success when some of them were tied up with factually disputed areas that the appellant was seeking to ventilate on his appeal. However, as this aspect of the appeal did not play any, or any central, role in the written submissions on the appeal, my grant of permission to appeal or the hearing before me, I prefer just to note this point and comment on it further below. 63. Ignoring the areas of factual dispute on the appeal, the position as I have sought to map it out above was that it had been represented to the appellant that, his having asked for a hearing, there would be a hearing of his appeal. In these circumstances it seems to me that, in the absence of any express instruction countermanding what the Guidance Notes and the Notice of Appeal form had said, fairness required that the tribunal held a hearing on the strike out application; or the tribunal had to reason out why no such hearing was needed notwithstanding the plain representation that there would be a hearing of the appeal. I have arrived at this conclusion for the following reasons. 64. First, the strength of the representation made. Both the Guidance Notes and the Notice of Appeal plainly tell the reader that there will be a hearing of his appeal if he asks for a hearing, and that is what the appellant had asked for here. The reference at the end of the Guidance Notes to the TPR is not enough, in my judgment, to cut down or vary the strength of the representation made, for the reasons I have given in paragraph 29 above. 65. Second, the appellant is a non-lawyer and so would have no obvious knowledge as to what “strike out” under the law would meant (as he demonstrated to me). Indeed, the Guidance Notes are crafted on the premise that they are to be read by people representing themselves and thus not represented by lawyer. I make this point because it addresses an argument that the Information Commissioner sought to make, namely that the appellant made no representations about making oral representations on the strike out application when he was asked, and provided, written representations on the strike out request in August 2012. However, he was not told he could ask for an oral hearing and, indeed, given his view as to what ‘strike out’ meant, he had no reason to suppose that the strike out process would cut off the hearing of his appeal that he had been told he would have. 66. Third, the representation in the Guidance Notes and Notice of Appeal form may have had no effect, in terms of error of law, if the law provided that a strike out application must be decided without a hearing. However, as rule 32(3) of the TPR shows, the First-tier Tribunal has a discretion as to whether to hold a hearing on whether to strike out a party’s case. That is a discretion which has to be exercised judicially and on the facts of each case, and needs to be shown to have been exercised. On the facts of this case that included the representations made to the appellant that his appeal would be the subject of a hearing. In the absence of any convincing reasons having been provided by the tribunal as to why it was fair to disregard these representations, it seems to me that this discretion could only operate in one way - in favour of holding a hearing. 67. I accept, as was argued by the Information Commissioner, that rule 32(3) of the TPR cannot be construed as requiring a hearing in all cases. Just as the word “may” in that rule does not compel the conclusion that a hearing must never take place on strike out application, nor does it mean that a hearing must always take place. For example, even on the basis of the Guidance Notes and the Notice of Appeal form in place on this appeal it may be argued to be a misuse of the discretion in rule 32(3) to hold a hearing where no party had requested one. 68. I further accept that the strike out powers conferred by rules 8 and 32 of the TPR, if operated consistently with the overriding objective, are an important procedural tool to avoid the First-tier Tribunal’s resources being used up on cases where it serves no purpose – per Lord Woolf MR in Swain –v- Hillman [2001] 1 All ER 91 . However, this does not touch on the issue of fairness that arises in this case that the First-tier Tribunal had told the appellant there would be hearing of his appeal but then disposed of his appeal without any such hearing. 69. Nor do I consider that the right to make representations before a strike out decision is made (rule 8(4)of the TPR), or the right of set aside under rule 41 of the TPR or the right of further appeal to the Upper Tribunal are sufficient “procedural safeguards” in this case. As I have said above, the appellant was directed to make written representations under rule 8(4); the set aside provisions in rule 41 would seem not to have any application given there was no hearing (unless it could be argued that not holding a hearing was here “ some other procedural irregularity ”, but then set aside was refused by the First-tier Tribunal here); and an appeal to the Upper Tribunal is on error of law grounds only. Indeed it may be thought to be an odd result that the appellant was denied a hearing he had seemingly been told he was entitled to by the First-tier Tribunal but the Upper Tribunals own procedural rules guaranteed him a hearing (at least of his application for permission to appeal if it had been refused on the papers). 70. Further, I do not accept that Judge Wikeley’s decision in the Ivanov stands against the conclusion I have arrived at. Mr Ivanov’s case was put on the basis that he had to have a hearing rather than that he had been told he would have a hearing. In those circumstances it seems to me unexceptional for Judge Wikeley to have ruled that there was no automatic right to an oral hearing (which is true in any event simply as a matter of construction of rule 32(3). 71. The fourth consideration in favour of my conclusion that the tribunal erred in law in not holding a hearing of the strike out application is the fact that the discretionary strike out areas the tribunal was being asked to consider all involved the test of whether the appeal grounds had “no reasonable prospects of success”
. As the case law set out above makes plain, even ignoring the potential areas of factual dispute, this is an option that should only be exercised as a last resort and in the plainest of cases, and should be exercised with especial care where the appellant is a litigant in person. 72. I should comment here on two related submissions made by the Information Commissioner. The first was that the TPR expressly contemplated that strike out decisions could be made by the First-tier Tribunal on the grounds that the appeal had no reasonable prospects of success without a hearing because rule 32(3) of the TPR referred to rule 8 generally and did not act to except rule 8(3)(c) of the TPR. This was a more general point made outside what the Guidance Notice and Notice of Appeal forms had said, and was relied on for a submission that a strike out decision under rule 8(3)(c) of the TPR could be made without a hearing. That may be so (e.g. where no one wants a hearing), but I would counsel some caution in pushing the submission too far. Rule 32(3) of the TPR covers all of rule 8 and thus includes strike out on the mandatory ground of the tribunal having no jurisdiction in rule 8(2)(a). Following Judge Rowland in AM , I can well see that such cases usually ought not to call for a hearing (or even a case under rule 8(3)(c) where binding higher court authority dictates the result), and rule 32(3) of the TPR in such cases has an evident and sensible purpose. However, that does not mean that a case where it is open to dispute whether it is plainly hopeless ought also to be subject of no hearing. 73. The second submission made by the Information Commissioner here was a concern that holding a hearing on a case to establish whether it has no reasonable prospect of success was likely to take up just as much time as holding a hearing of the appeal. I do not accept this. The First-tier Tribunal has sufficient powers under the TPR to avoid this being the result. First, having scrutinised the papers where a rule 8(3)(c) application has been made by the Information Commissioner or the public authority (and those submissions should have explained why 8(3)(c) was applicable), specific directions could be made to the appellant asking him, for example, to specify in clear terms the important facts that are in dispute and/or whether he wants a hearing of the strike out application (and, if so, why). In an appropriate case that direction could carry with it a warning of strike out under rule 8(3)(a) of the TPR. Second, the hearing of the strike out application could be limited in time to say half an hour or an hour and that time limit notified beforehand and then rigorously enforced. These are not exhaustive examples. However, in my judgment they show that the concern raised here is misplaced. Of course, if the rule 8(3)(c) strike out takes just as long to deal with as the full appeal then that may indicate that it was not appropriate to use that rule in the first place. 74. Taking account of these four considerations cumulatively, I am satisfied that the tribunal erred materially in law in deciding to strike out the appellant’s grounds of appeal on the grounds of no reasonable prospects of success without holding a hearing. (The appeal ground six was not struck out under rule 8(3)(c) and in any event is no longer in issue.) Reasons for not holding a hearing 75. An alternative way of viewing the error of law is to look at it in terms of the adequacy of the tribunal’s reason for deciding the appeal without a hearing. Rule 32(3) of the TPR vests a discretion in the First-tier Tribunal as to whether to hold a hearing on a strike out application. In my judgment, the tribunal needs to give reasons to explain its decision whether to have hearing or not: see VAA and TG above. I can see no material difference between rule 27(4) in the Social Entitlement Chamber’s rules of procedure as considered in VAA and TG and rule 32(3) of the TPR. Both are the rules addressed to making a Decision with or without a hearing , both use the word “may” and both are concerned with decisions that have the effect of disposing of the appeal proceedings. 76. The need for reasons is a general one and may in a general case be addressed quite shortly. In the example of a binding higher court authority that only points to one possible result on the appeal, the reasons could refer to that authority and simply say that a hearing could not have altered the result. However, reasons were in my judgment particularly called for on this appeal given the fact – of which the tribunal ought to have been aware – of the representations made to the appellant in the Guidance Notes and the Notice of Appeal form that he would have a hearing of his appeal. 77. It is just about possible – though the parties before me would have been in evident difficulties in advancing such a case – that having no hearing was justified because, inter alia, what was said in the Guidance Notes and on the Notice of Appeal form had been expressly qualified elsewhere to the appellant. (I add, however, that nothing the appellant said to me gave me any cause to think this may be the case.) However, the complete absence of any reasoning from the tribunal on why it decided to strike out the appellant’s appeal closes off that possibility. 78. This lack of reasoning can either be seen as part of the tribunal erring in law in not holding a hearing, as it gave no rational basis for going against the representations made in the Guidance Notes and on the Notice of Appeal form, or as an error of law ground in its own right. 79. I do not accept the argument of the Information Commissioner that, given the structure of the TPR and the purpose of rules 8 and 32(3), I can find the reason for not holding a hearing in any given case was because it was disproportionate to do so; in other words, that such reasoning is unnecessary as it is self-evident why no hearing is needed. That submission comes close to an argument that a hearing is never needed when deciding a rule 8 strike out application, but if that were the case then rule 32(3) could have expressly provided for this. Nor is such a submission consistent with VAA or TG . Moreover, it is not self-evident why the tribunal decided against holding a hearing when the representations made in the Guidance Notes and on the Notice of Appeal form had told the appellant he would have a hearing. 80. Mr Knight also made the point that requiring reasons in such cases would lead the First-tier Tribunal to only provide formulaic reasons. However, if that is so the Upper Tribunal will be astute to check such reasoning. Just as any court or tribunal, the First-tier Tribunal (Information Rights) can be expected to provide adequate reasons for its decision, including why it decided not to hold a hearing of a strike out application. Reasons may in an appropriate case be short (see the example given in paragraph 76 above), but they need to be given. The need to give reasons, and why it is consistent with good decision making, was perhaps best expressed by Mr Justice Sedley (as he then was) in R-v- Higher Education Funding Council, ex parte Institute of Dental Surgery [1993] EWHC Admin 5 ; [1994] 1 WLR 242, where he said at page 252:
“ The giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process. ”
Contested facts 81. I come lastly to the issue of whether there were contested material facts in issue on the strike out application. I approach this matter with some caution aware as I am that this was an issue that was not foreshadowed in any of my directions or explored in the written submissions or at the hearing before me. However as the decision of the tribunal is being set aside for other reasons, I consider I can at least safely comment on this issue. 82. It does seem to me arguable that the appellant was seeking to contest the facts that underlay the Information Commissioner’s conclusion that certain information that he had requested was not “held” by the public authority. In a sense this is mixed up in the appellant’s ‘lack of due process argument’. Perhaps the most obvious examples are the shifting in position as to (a) whether the appellant’s tender had been scored by the evaluation panel, and (b) whether the consultant’s name and qualifications and experience were held by the public authority. The appellant may or may have been right in his suspicions in this regard, but arguably these were matters he ought to have been able to test at a hearing. Moreover, I do not consider that the Information Commissioner’s stance that it was for the appellant to provide evidence to refute his conclusions is a complete answer. The history of how the information requests had been handled by Business Link, Advantage West Midlands and the Department for Business, Innovation and Skills, and the different answers given at different stage as to what relevant was ‘held’ by them, arguably ought to have allowed the appellant to test this evidence as to its internal consistency and accuracy. The lack of any hearing arguably precluded the appellant from taking this step. 83. However, these are tentative views, for the reasons given above, and I therefore take them no further or rule on whether such contested facts render a rule 8(3)(c) strike out inappropriate, whether after a hearing or not. That will be a matter for the next First-tier Tribunal to address. If the grounds of appeal are struck out under rule 8(3)(c) after the hearing, the First-tier Tribunal’s reasoning will need to address why there was no relevant contest on the facts which would have required a full hearing of the appeal. ( Signed) S. M. Wright Judge of the Upper Tribunal Dated 23 rd May 2014 GUIDANCE NOTES FOR INDIVIDUALS REPRESENTING THEMSELVES IN FREEDOM OF INFORMATION APPEALS IN THE GENERAL REGULATORY CHAMBER OF THE FIRST-TIER TRIBUNAL 1. These notes are intended to help individuals who are representing themselves in freedom of information cases in the First-tier Tribunal. People who represent themselves in court or tribunal (rather than using lawyers to represent them) are often known as “litigants in person”. 2. The notes are set out in the form of questions and answers. There is a glossary at the end which is intended to explain the meaning of words and phrases that may not be obvious. What is the Tribunal’s role in [freedom of information] cases? 3. Under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR), individuals have the right to apply to public authorities for the disclosure of information held by those authorities. If the person making the request thinks that the public authority has not complied with FOIA or EIR, they can complain to the Information Commissioner’s Office (ICO). The ICO’s decision on the complaint will be set out in a document called a Decision Notice. Once the ICO has made a decision, either the person making the request, or the public authority, can appeal to the First-tier Tribunal (Information Rights). 4. The Tribunal’s task is to decide whether the ICO’s Decision Notice should be overturned or varied (changed in some way). The Tribunal can consider whether the ICO misinterpreted the law, or applied it wrongly; whether the ICO made a wrong finding of fact; and, in cases where the ICO has a discretion; whether the discretion should have been exercised differently. 5. The Tribunal process is more formal than the stages you have already gone through since making your information request. However, do not be put off - many people have represented themselves before the Tribunal. The Tribunal staff are always willing to help with any queries you may have about the process. When and how can I appeal to the Tribunal? 6. Once the ICO has made a decision about your complaint and has issued a Decision Notice, you can then appeal to the Tribunal. You should do this within 28 days of the ICO’s Decision Notice being sent to you. If you send your appeal to the Tribunal office any later than this, then you should include an explanation of why the appeal is late. The Tribunal will consider your explanation and decide whether the appeal can be accepted. 7. There is a Notice of Appeal form on the Tribunal’s website at; [http://www.justice.gov.uk/global/forms/hmcts/tribunals/information-rights/index.htm You can also get a copy of this form by writing to the Tribunal at the address given in the next paragraph. You do not have to use this form, but it is your interests to do so, as it will help you to make sure that you give the Tribunal all the information that it needs. 8. You should send the completed form to: The First-tier Tribunal (Information Rights) General Regulatory Chamber Arnhem House Support Centre PO Box 9300 Leicester LE1 8DJ What happens after I have submitted my appeal to the Tribunal? 9. The Tribunal will send your appeal papers to the Information Commissioner. The ICO then has 28 days to put in a written response to your appeal. The ICO will send a copy of his response to you and to the Tribunal. The ICO’s reply will respond to each of your grounds of appeal and will usually set out which grounds he accepts and which he disagrees with. 10. Sometimes the Tribunal will make an order that the public authority to which you made your request for information should also be a party and, in effect, joined to the appeal. Where this happens, the public authority will be asked to put in a written reply to your appeal, and to send you a copy. 11. In a very few cases the appeal/application may be transferred to be heard in the first instance by the Upper Tribunal. This may be because of its complexity or because it is of considerable public interest. For information about the Upper Tribunal see: http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/aa/index.htm Apart from me, who else will take part in the appeal process? 12. The individuals or organisations who take part in the appeal process are referred to as the parties to the appeal. 13. The Information Commissioner will be a party to every appeal and in every case as it is the ICO’s decision that is being challenged in the appeal. The IC will usually want to explain to the Tribunal why he took the decision that he did, and why he thinks that his decision was right. 14. As explained above, sometimes the public authority, to which you made your request for information, will also be a party to the appeal. Even if the ICO has found that the public authority dealt with your request correctly, the public authority may still wish to give its own explanation to the Tribunal as to why it says that the Commissioner was right. For instance, if the ICO has found that the public authority does not hold the information that you are seeking, the public authority may want to explain to the Tribunal what steps it has taken to try and find that information. Or in a case where the ICO has found that information is exempt from disclosure, the public authority may want to give its own explanation as to why it says that the exemption applies. 15. Occasionally, there will be other parties. For example, a commercial organisation that has supplied information to a public authority may apply to be added or joined as a party to an appeal, if the appeal is about whether that information should be disclosed under FOIA or EIR. Will there be a hearing, or will my appeal be dealt with on paper? 16. The First-tier Tribunal (Information Rights) can consider an appeal on the papers only or hold a hearing. The Notice of Appeal form includes a box for you to indicate which option you would prefer. The other parties in an appeal can also express a preference. If all parties agree the Tribunal can consider the appeal on the papers provided. If all parties do not agree, there will be a hearing. 17. When a case is dealt with on paper, it means that the members of the Tribunal will meet in private, without parties being present, to consider the papers; discuss the case between themselves; and make a decision. The written decision will be sent to the parties in due course. If a case is to be considered on the papers, the parties will need to put all their arguments in writing in advance of the meeting, so that they can be considered by the Tribunal panel. 18. If the case is dealt with at a hearing, a date will be fixed by the Tribunal in consultation with the parties. Parties are not required to attend the hearing, although it is in the interests of the appellant in particular to do so. Witnesses can be called at a hearing and can be questioned both by the parties and by the Tribunal. Before being questioned the witnesses may be required to swear on a holy book or affirm that they will tell the truth to the Tribunal. The parties will be expected to make submissions to the Tribunal: i.e. explain what decision they think the Tribunal should reach, and why. At the end of the hearing, the Tribunal may be able to give the parties a decision (with written reasons to follow). More usually, the Tribunal will take more time to reach a decision, and will send its decision to the parties in writing in due course. 19. When deciding whether an appeal should be considered at a hearing or on the papers provided, the Tribunal will take into account whether there is a disagreement between the parties about the facts of the case. If so, the Tribunal may need to hold a hearing so that it hears the witnesses give evidence, and so that the witnesses can be questioned. Another situation where the Tribunal may feel that a hearing is preferable is where there are complicated legal arguments and the Tribunal thinks that they should be explored in more depth. 20. You may have a strong preference about how your case will be dealt with. Some litigants in person are happier to express themselves on paper; others feel that they will not be able to explain their case properly unless there is a hearing. Either way, you should explain what your preference is and why. You can do this both when you put in your appeal and at any directions hearing (see below). Where will the Tribunal hold a hearing? 21. The Tribunal usually hears cases in London but is prepared to sit in other locations which are more convenient to the parties, if a suitable venue can be booked. If you wish the case to be heard outside London you should request this in the notice of appeal. How does the Tribunal decide what needs to be done to prepare a case for hearing? 22. In order to prepare a case for a hearing, there are a number of steps that will need to be taken. This process is the same whether the case is dealt with at a hearing or on paper. 23. The steps that the parties need to take usually include the following: They will need to provide one another with copies of any information they hold that is relevant to the appeal. They will need to agree which documents should be put before the Tribunal. Documents will usually be included in files (in this context often referred to as bundles ). The parties will need to agree the content, order and pagination or page numbering of the bundles. If there is a hearing, the parties will need to consider whether they want to call any witnesses (or to give evidence themselves). If the case is to be dealt with on paper, the parties may wish to put in written witness statements for the Tribunal to read. Whether the case is dealt with at a hearing or on paper, the parties will usually provide the Tribunal with a written document setting out their arguments. In every case, the Tribunal will issue what are called directions . Essentially these are a set of instructions from the Tribunal to the parties explaining what needs to be done to prepare the case for a hearing, together with a timetable for when those steps need to be taken. 24. In most cases the Tribunal will send initial instructions or directions to the parties once the ICO has replied to the notice of appeal. These will indicate a date range within which the Tribunal expects to hear the appeal. The Tribunal may send the parties a list of possible directions, and ask them to try to agree which of these directions are appropriate. The final directions will usually include the actual hearing date. In some cases the Tribunal may hold a directions hearing (see below). What happens at a directions hearing? 25. Directions hearings are usually conducted by the chairman or a deputy chairman, sitting alone. Sometimes the hearing takes place at a venue organised by the Tribunal, with everyone present; sometimes it is conducted by telephone. Either way the Tribunal will send the details to the parties in advance. Where there is a telephone hearing, the Tribunal will send out details of the number to call, and a pass-code. The parties join the telephone conference by way of an 0800 number. The cost of the administration of the system is undertaken by the Tribunal. 26. One of the purposes of a directions hearing is to clarify the issues in the case, so that everybody knows what needs to be addressed. For instance, if the public authority has already disclosed some information, the Tribunal may want to know what further information has been withheld, and why. Another purpose is to decide what needs to be done in order to prepare a case for a hearing, and to set a timetable for case preparation. Some of the steps that may need to be taken are summarised in paragraph 23. If for any reason you find cannot meet a deadline you can apply to the Tribunal for an extension of time to comply. Please note: the Tribunal is unlikely to agree to the application for an extension of time if it results in the hearing date needing to be changed. It is a good idea to copy your application to the other parties so they are not taken by surprise. What should I do to make sure that the Tribunal has all of my documents? 27. The directions given by the Tribunal will usually include directions about who is responsible for preparing the bundle (i.e. the file of documents that will be placed before the Tribunal). Litigants in person will not usually be asked to take on this task. However, it is important that make sure that the party responsible for providing the bundle is given any documents that you want to be included in good time. What is a “skeleton argument”, and must I prepare one? 28. A skeleton argument is a written summary or outline of the arguments that a party intends to make at a hearing. If a party is legally represented, the Tribunal will generally expect that a skeleton argument is given to the representative. The document is usually sent to the Tribunal, and to the other parties, in advance of the hearing. 29. The Tribunal’s directions will usually indicate whether skeleton arguments are required, and if so when. Even if you are not ordered to prepare a skeleton argument, it is a good idea to do so if you can. It will help the Tribunal to focus on your main points, and it will also help you make sure that you do not leave anything out. 30. As a very rough guide, skeleton arguments in short cases (lasting ½ day – 1 day) are likely to be between 5 and 15 pages long. Skeleton arguments in longer cases (lasting for 2 days) may be about 10-30 pages long. They should include references to any legal materials (i.e. extracts from legislation, or case law) that the party is asking the Tribunal to consider. How will I know of the hearing date? 31. As explained above, you will have a good idea of the hearing date from the directions. However, you will receive a formal notice of the time and date of the hearing and a map or directions to the venue, at least 14 days beforehand. What happens at a hearing? 32. A hearing may last as little as half a day; or it may take several days. Most hearings involving litigants in person are completed within one or two days. 33. The hearing will usually begin with the members of the Tribunal introducing themselves. There may be a short discussion to ensure that everyone agrees what the issues are, and to deal with “housekeeping” issues (e.g. making sure that everyone has all the necessary papers in front of them). In more complex cases, the Tribunal may invite or permit the parties to make a short opening statement explaining what their case is about. 34. The Tribunal will then hear any witness evidence. The usual order (though this is not always the case) would be for the Tribunal to hear any witnesses called by the party bringing the appeal; then to hear any witnesses called by the ICO; and then to hear any witnesses called by another party. Each witness will give evidence in turn. The witness will be questioned by the party who called them to give evidence (this is called “examination-in-chief”). The witness will then be questioned by other parties who wish to challenge their evidence (“cross-examination”). At the end of cross-examination, the Tribunal will usually ask their questions. In addition, the Tribunal may intervene in the course of evidence-in-chief or cross-examination with its own questions. After the Tribunal and other parties have asked their questions, the party who originally called the witness can ask for answers to be clarified, if necessary, and this is called “re-examination”. 35. The Tribunal often directs that written witness statements should be prepared and these are generally read in advance by the Tribunal. A witness will not usually be asked to read the statement aloud at the hearing. The party who originally called the witness may ask a few short questions to confirm that the contents of the written witness statement are true rather than asking questions during the examination-in-chief. 36. Lastly, the Tribunal will hear oral submissions from each party in turn. The usual order (although again this is not always the case) is for the Tribunal to hear submissions from the party bringing the appeal; then from ICO; and then from any other parties. This is the opportunity for each party to explain to the Tribunal what decision they are asking it to reach, and why. This is also the point at which any legal arguments are dealt with. In submissions, parties may ask the Tribunal to look at particular sections of the FOIA and EIR; they may also ask the Tribunal to look at earlier decisions of the Tribunal itself, or of the courts. 37. Oral submissions are often made using the skeleton argument as a framework, and then expanding it where necessary. Sometimes, where a point is dealt with in detail in the skeleton argument, a party will not deal with it at length in oral submissions, but will simply refer briefly to the relevant passage in the skeleton argument. Can I be present throughout the hearing? 38. The general rule is that Tribunal hearings take place in public, and that all the parties (and anyone else who wishes to attend) can be present throughout. 39. There is however, an exception to this. Sometimes the Tribunal will need to look at “disputed information”: i.e. information that an individual says ought to be disclosed under FOIA or EIR, but that a public authority says is exempt from disclosure. The Tribunal may need to look at the disputed information in order to judge whether it is really within the scope of any exemption claimed by the public authority. 40. When the Tribunal looks at disputed information in this way, it may be necessary for part of the hearing to take place in private. A hearing from which the person who requested the information, the public and some of the parties are excluded in this way is referred to as a “closed hearing” or a “closed session”. This is in contrast to an “open hearing”, where all parties and the public can be present. If you are required to leave the hearing because it goes into closed session you should bear in mind that this will be for an unpredictable period of time. 41. The Tribunal arranges a hearing if a person has asked for information which is considered to be disputed; the request has been denied and the person is appealing that denial. During the closed session, this disputed information will be looked at by the panel. The reason that parties are excluded from the closed session is that if the disputed information is given to the requester during the hearing, the whole appeal process would be rendered pointless. 42. Similarly, the Tribunal sometimes directs that written submissions or skeleton arguments that refer to the content of the disputed information should be prepared on a “closed” basis: this means that the information will not be given out to the person who asked to see the disputed information. Will the other parties be represented by lawyers? 43. The ICO will usually be represented by a lawyer. This may be someone employed by the ICO, or it can be an external barrister or solicitor. 44. If the public authority is a party, then it will usually be represented by a lawyer. Again this may be someone employed by the public authority or it may be an external barrister or solicitor. How is the Tribunal made up? 45. The Principal Judge for Information Rights cases is Professor John Angel. There are fifteen other judges, all judges are lawyers. In addition there are a number of non-lawyer members (sometimes known as “lay members” or “wing members”). The wing members are grouped into those who reflect the interests of public authorities and those who reflect the interests of people who are asking for information from Public Authority. 46. Directions hearings are usually conducted by the judge sitting alone. The hearing itself will be conducted by a full Tribunal of three members, consisting of the judge and two wing members, one from each group. How formal is the hearing? 47. Tribunal hearings are less formal than hearings in the High Court or the County Court. For instance, everybody sits down throughout the hearing (though as a courtesy you may be asked to stand when the Tribunal enters the room). The Tribunal and lawyers will wear suits, not wigs and gowns. 48. However, as an example, in comparison with an ordinary business meeting a Tribunal hearing is a fairly formal process. There is a set order of events, as explained above: witnesses are called, the parties and the Tribunal take turns to question them, and then the parties make their submissions in turn. If you disagree with something one of the other parties says in their submissions, you will need to wait until it is your turn to speak. Is the Tribunal used to dealing with people who represent themselves? 49. In about 60% of Tribunal cases, the appeal is brought by the person who requested information from a public authority. In the great majority of these cases that person will represent themselves. The Tribunal is therefore very used to dealing with litigants in person. The members of the Tribunal, and in particular the chairman, will do everything possible to make sure that you understand the process and that you have a fair hearing. If at any point you do not understand what is happening, or why, you should say so. Am I allowed to have a friend to help me at the hearing? 50. Yes. You can have a friend with you who can, for instance, take notes and give you advice as to how you conduct your case. Can I be represented by someone who is not a lawyer? 51. In principle the answer is, yes. 52. If you are attending the hearing with someone who is there to help you, then you will need to decide in advance who will present the case. One option will be for you to represent yourself, with the other person giving you advice and support. Alternatively, the other person could present the case. 53. What the Tribunal may resist, however, is a situation where you ask questions of witnesses, or make submissions, and in addition somebody else acting on your behalf asks questions or makes submissions. If you particularly want to conduct your case this way, make it clear and ask the Tribunal’s permission at the beginning of the hearing. 54. However you plan to present your case, it is important to decide beforehand what roles you and the person accompanying you propose to take. I would like to be represented by a lawyer at the hearing but I cannot afford to pay. Is there anything I can do? 55. Legal aid is not available to fund representation in the Tribunal. 56. However, there are organisations which may be able to provide legal representation free of charge, such as the Bar Pro Bono Unit, Caseworks and Friends of the Earth’s Rights and Justice Centre. To find out their contact details you should visit the Tribunal’s web site at http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/information-rights/appeals/how-to-appeal.htm These organisations are all independent of the Tribunal and the Tribunal has no control over whether they will be able to represent you. These organisations have their own rules as to what sort of case they take on, and there is no guarantee that they will be able to help you. What powers does the Tribunal have? 57. The Tribunal’s task is to decide whether the ICO’s decision was right, or whether it should be overturned or varied (changed in someway). That means that the Tribunal is concerned with whether the public authority dealt with your request for information in accordance with FOIA and EIR. 58. Your request for information may be one aspect of a wider dispute between yourself and a public authority. The Tribunal will not be able to decide which of you is right in the wider dispute. For instance, you may be involved in a dispute about whether you owe money to a public authority; and as part of that dispute you may make a FOIA request for information. The Tribunal can consider whether your request has been properly dealt with, but cannot rule on whether or not you actually owe money to the authority. Will I have to pay the other parties’ legal costs if I lose? 59. The usual rule in the Tribunal is that all parties bear their own legal costs regardless of who wins or loses. If you bring an appeal against the ICO’s decision, you are unlikely to be ordered to pay any costs unless the Tribunal thinks that your appeal was “manifestly unreasonable”, or that you have conducted the appeal unreasonably. What can I do if I disagree with the Tribunal’s decision? 60. There is a right to appeal against the Tribunal’s decisions, to the Administrative Appeals Chamber of the Upper Tribunal. However, an appeal is only available on a point of law: in other words, you would need to be able to show that the Tribunal made a mistake of law in reaching its decision. In the same way as a First-tier Tribunal case, all parties will have to bear their own legal costs. What is the status of these Guidance Notes? 61. These notes are intended to help people who are representing themselves. They are not an authoritative statement of the law. The provisions that govern the Tribunal’s work are set out in FOIA and EIR, together with the Tribunal’s rules of procedure and practice notes. These notes are not intended to modify those provisions in any way; rather, they are meant to help you understand how these provisions will operate in practice. The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 can be found on the website, the address is: http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/tribunals/tribunals-rules-2009-at010411.pdf GLOSSARY This section sets out a short explanation of words and phrases that may cause difficulty, either because they are unfamiliar or because they have a special meaning in the context of the Tribunal’s work. Appellant The party, who appeals against a decision from the Information Commissioner's Office (ICO), is called an appellant. Authorities Cases previously decided by a Court or Tribunal, relied upon by a party in support of its argument. Cast list A document listing the individuals who are involved in the facts giving rise to an appeal, and explaining who each one is, this is sometimes helpful in cases that are factually complex. Chronology A document setting out a list, in date order, of the main events. Sometimes helpful in cases that are factually complex. Closed hearing/closed session A Tribunal hearing from which the public (and sometimes one or more of the parties) are excluded is called a closed hearing or closed session. This happens when the Tribunal needs to consider the actual content of any disputed information. Cross-examination Cross-examination is the questioning of a witness in order to challenge or undermine the evidence of that witness. In general, if you call a witness to give evidence then you are not allowed to cross examine that witness: i.e. you cannot usually ask your own witness questions designed to show that what they are saying in evidence is wrong. Directions Instructions from the Tribunal to the parties as to the steps they are to take to prepare for a hearing. Disclosure The process by which each party informs the others of what documents it has that are relevant to the appeal, and provides copies of them if necessary. Discretion Sometimes legislation leaves a decision-maker to make a choice between different courses of action in the light of all the circumstances, rather than setting out a fixed rule about what must happen in particular circumstances. In this situation the decision-maker is said to have a discretion as to how it should act. Disputed information In many of the cases that come before the Tribunal, a public authority admits that it holds the information requested (or some of it) but argues that it does not have to disclose the information, e.g. because an exemption applies. The information in question is often referred to as “the disputed information”. Examination-in-chief At the start of the evidence of a witness, the party who called that witness has the opportunity to ask questions. Legislation In general this consists of Acts of Parliament (otherwise referred to as statutes), and regulations (otherwise referred to as statutory instruments). Open hearing A Tribunal hearing to which all of the parties, and the public, are admitted. Party The persons or organisations who take part in the appeal process are referred to as “the parties”. The parties will always include the [Information Commissioner], and the person bringing the appeal.

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