NHS Business Services Authority v MW

The decision under appeal concerned an application by a claimant under the Vaccine Damage Payments Act 1979 (“the 1979 Act”). The First-tier Tribunal held that the claimant suffered Multisystem Inflammatory Syndrome in Adults (“MIS-A”), myopericarditis and inflammatory (or rheumatoid) arthritis following administration of an AstraZeneca COVID-19 vaccination. The respondent contended that he had not suffered MIS-A and that the conditions from which he had suffered were not caused by the vaccine.

This is a rolled-up application for permission to appeal, with the appeal to follow if permission granted, against the decision of the First-tier Tribunal sitting at Carlisle on 7-8 April 2025. The Tribunal issued its decision notice and statement of reasons on 9 April 2025, the day following the hearing.

The appellant is the NHS Business Services Authority. I shall refer to it hereafter as “the NHSBSA”. I shall refer to the respondent hereafter as “MW”. I shall refer to the tribunal which sat on 7-8 April 2025 as “the Tribunal”.

The Tribunal issued its Decision Notice and its Statement of Reasons on the day following the hearing in the same document. The Decision Notice is effectively the first 6 paragraphs and the Statement of Reasons followed from paragraph 7 onwards.

The Tribunal found as follows in the Decision Notice (I have anonymised the decision so that the claimant is referred to only by his initials):

“1.

The appeal is allowed.

2.

The decision of the Respondent, NHSBSA, dated is set aside.

3.

The Tribunal finds that MW was diagnosed with the medical conditions MIS-A, inflammatory arthritis and myopericarditis (also referred to in the documents as myocarditis) and that, on the balance of probabilities, these conditions were caused by the COVID-19 vaccine, AstraZeneca (“AZ”).

4.

A statement of reasons for the decision is set out below. In summary, the Tribunal preferred the evidence of the medical professionals who treated MW at the time of his admission to hospital and subsequently.

5.

The matter is now remitted to the Respondent for a new decision to be made on disablement.

6.

Should the Respondent conclude that the level of 60% disablement required is not achieved, the matter should be referred back to this Tribunal (comprising Judge Kneale and Dr Bennett) on the issue of disablement. No further mandatory reversal process would be required, it having been the subject of the initial mandatory reversal request and the Tribunal finding that it would not be proportionate to require a further, separate, appeal to be lodged on the issue. A written request for a directions hearing would be sufficient in the first instance, marked for the attention of Judge Kneale.”

It continued (I have left in the references in square brackets to the pages and paragraph numbers of the trial bundle since they appear in the original):

“Statement of Reasons:

Introduction

7.

This appeal was brought by MW against a decision of the NHSBSA to refuse his claim for a payment under the Vaccine Damage Payment Scheme (VDPS). The criteria for a payment are set out in the Vaccine Damage Payment Act 1979 (VDPA).

8.

There is no dispute that vaccines against the COVID-19 Coronavirus are covered by the scheme or that, on 10/04/2021 MW was given the AstraZeneca vaccine against COVID-19 and that vaccine is the subject of this claim.

9.

In reaching its decision, the Tribunal has had regard to all of the evidence contained in the appeal bundle, emailed to the Tribunal Service and given orally. Not all the items of evidence will be referred to specifically in this statement of reasons. The core bundle comprised 2255 pages. Oral evidence was heard from MW, his partner, TT, Professor Neal, Professor Conlon and Dr Craig.

10.

Bundle page references appear in the format [n].

11.

At the hearing, the Respondent was represented by Mr Maughan, Presenting Officer. MW appeared in person. He had been assisted in the preparation of his appeal by a legal representative, Mr Todd.

12.The Tribunal was grateful to the courteous way in which both parties presented their case to the Tribunal and the assistance they provided to us.

MW’s Chronology of events post vaccination

10.04.2021

MW received the AZ vaccine. That evening he reports feeling like he was coming down with cold like symptoms, turning into flu-like symptoms the following day which lasted for a few days [477 para 23 27]

16.04.2021

MW returned to his job as an HGV driver but deteriorated during the day [477 para 28-30]

18.04.2021

MW’s partner, TT, called 111 due to his symptoms and an emergency appointment at Whitehaven hospital was arranged [477 para 32]. Temperature was over 40c, MW was shaking and shivering, aching all over, had a headache and was unable to drive. Antibiotics were prescribed and sent home with instructions to rest. Later that day MW deteriorated further. TT contacted 111 again and MW was taken to hospital by emergency ambulance. COVID-19 tests were taken but came back negative [478 para 38]. MW was sent home and told to continue taking the antibiotics and to rest [para 42]

19.04.2021

By 10pm MW reported shortness of breath and by 3am was struggling to breathe. TT phoned 111 again. An ambulance was sent and MW was taken to Whitehaven Hospital. He was initially admitted to the major resuscitation area and then moved to ICU/CCU where he was treated for a severe heart infection, internal blood infections, blood clots and immune system problems. MW was told he had Multi-system Inflammatory Syndrome (“MIS-A”) [479 para 48] Repeated tests for COVID-19 came back negative. MW remained in hospital for over 3 weeks [480 para 53]. MW then attended weekly appointments in Ambulatory Care.

Late June 2021 MW attempted to return to work [480 para 57].

21.06.2021

Readmitted to hospital for a week [480 para 57].

January 2022 Signed off by GP on long term sick due to a deterioration in health conditions.

April 2022 Rheumatology Department diagnosed rheumatoid arthritis and MW was prescribed Hydroxychloroquine. Main issues were pain, reduced mobility and breathing difficulties. A wheelchair was prescribed and received 27/01/2022. There was a further decline in MW’s health and MW underwent a colonoscopy and an endoscopy [481].

May 2023 MW was diagnosed with Fibromyalgia/chronic pain. He was referred to the persistent physical symptoms service and attended an appointment with an occupational health therapist on 22/01/2024.

The VDPS Claim

13.

MW made a claim under the VDPS on 19.05.2021.

14.

A medical assessment was undertaken on behalf of the Respondent and Form VAD30MA completed. The conclusion of the assessor was that causation was established but MW did not satisfy the 60% disablement criteria [38 an unredacted copy giving the name of the assessor was later provided]. The assessor refers to MW having diagnoses of MIS-A (multi-system inflammatory syndrome in adults), myopericarditis and pericardial and (small) pleural effusions, as well as skin rashes suggestive of a cutaneous vasculitis (inflammation of the vessels of the skin). All of these ‘sub’ diagnoses are covered by the term MIS-A and were treated as one for the purpose of the assessment [46].

15.

The author refers [46] to the Brighton Collaboration (a network of healthcare professionals across the world working on developing case definitions for adverse events following immunisation) definition for MIS-A following vaccination. The assessor was satisfied that MW satisfied level 1 certainty of diagnosis (i.e. the highest possible). The assessor further comments “the fact that the Brighton Collaboration allow for equivalence of covid infection and vaccination at the final stage of their case definition for MIS-A confirms their acceptance of a relationship between the two” [46 para 62].

16.

The assessor then goes on to say that the MHRA summaries do not mention a relationship between AZ and the development of MIS-A but it does report that there is an accepted causation between the vaccine and the development of myocarditis and pericarditis, although higher with the Pfizer and Moderna vaccines. As of 13/07/2022 the author reports there had been 234 reports of myocarditis and 221 of pericarditis following vaccination. There were two yellow card reports for MIS-A following AZ vaccination. The author accepts there was no mention of MIS-A or myo/pericarditis in the Green Book [46-47].

17.

The assessor’s overall conclusion is that, on the balance of probabilities, “the AZ COVID-19 vaccination did cause the development of a Multi-system inflammatory disorder/syndrome in the claimant. This is a more plausible explanation than a spontaneous development of such a rare condition, and as such, there is no biologically plausible alternative explanation.” [47 para 67]

18.

The outcome of the claim was confirmed to MW in a letter dated 10.10.2022 [51].

19.

MW then requested a mandatory reversal of the decision that he did not satisfy the disablement criteria by way of a letter dated 28.11.2022 [55].

20.

A further medical assessment report was provided (VAD 82 [63], again, an unredacted copy was later provided). This report concluded that causation had not been established. It therefore did not go on to assess disablement. The Tribunal accepts that the Respondent was lawfully able to change its mind about causation under s3A of the VDPA. This second report appears to accept the diagnoses of MIS-A and rheumatoid arthritis (RA). It states “the claimant’s reported symptoms of [MIS-A] and RA were confirmed in the medical records submitted” [68]. A temporal relationship between the vaccine and the development of symptoms was also accepted [68 para 39]. The discharge summary also referred to “multi-system inflammatory syndrome, probably triggered by COVID-19 (AZ) vaccine”.

21.

The conclusion of the VAD82 report that causation is not established is based on there being no causal link referred to in The Green Book with a vaccine and MIS-A (it does refer to a potential causal link between COVID-19 and MIS-C i.e. in children rather than adults), neither does it mention a link between vaccine and RA.

22.

The report writer goes on to consider the MHRA Summary (Medicines and Healthcare products Regulatory Agency) of Yellow Card reporting of adverse events following COVID-19 vaccinations. The author relies on an MHRA summary that became available after the initial report which states “in summary, MHRA has not established a link between MIS-A and any of the COVID-19 vaccines, AZ, Moderna or Pfizer. MIS-A is not currently recognised as an undesirable effect for any of the COVID-19 vaccines authorised and used in the UK vaccination programme”.

23.

Yellow Card reporting is recorded as showing less than 5 yellow cards for MIS-A and 245 for RA. A report does not necessarily establish causation, only a suspicion that it may have been caused by a vaccine [70 para 51].

24.

The author gave the greatest weight to the MHRA evidence [70 para 54]. There was no mention of the Brighton Collaboration in the second report. Neither did it refer to Yellow Card reporting in relation to myocarditis and pericarditis.

25.

The decision of the Respondent to disallow the claim on the basis of causation no having been established was communicated to MW in a letter dated 21/07/202[3] [74].”

The Tribunal then turned to the appeal and in particular the respective expert evidence adduced by both sides:

“This Appeal

26.

MW then appealed to the First-tier Tribunal on form SSCS7 dated 20/05/2024. The above chronology has been taken from MW’s statement of support for the appeal [472]. The grounds for the appeal are set out by the appellant’s representative [466]. In essence, MW states that, before the vaccine, he was a fit and healthy 52 year old man. He may have had some joint issues in the past and had bilateral knee replacement surgeries but he was not signed off work, was on no medication and had not been referred to any specialists. He worked 70 hours a week as an HGV driver, loading wagons and also delivering PPE type supplies during the pandemic. He had relocated with his partner to the Lake District and they were active cyclists at the weekend. He says that he had the AZ vaccine and then within a week was fighting for his life. He has never had a positive test result for Covid. He can find no other explanation for what has happened to him than that it was caused by the vaccine.

27.

MW will say that he remains severely disabled. He is a wheelchair user (having been prescribed with one), and is unable to work. He described himself several times during the Tribunal as “just existing”.

28.

In the grounds of appeal, the appellant’s representative refers to a Freedom of Information reply from NHSBSA https://opendata.nhsbsa.net/dataset/foi 01448 [469]. It states that, at the time (03/10/2023) of the 148 successful VDPS claims, 143 were in relation to AZ and only 5 Pfizer and Moderna. The conditions of the 148 successful claims are listed in response to question 6. They include chronic heart disease, myocarditis, pericarditis, some inflammatory conditions, rash and vasculitis. Causation must therefore have been established between the vaccine and those medical conditions in some cases.

Expert Reports

(a)

Dr Clare Craig dated 15/04/2024

29.

MW submitted an expert report from Dr Clare Craig with his appeal [488]. Dr Craig is a Pathologist with a special interest in covid and the policy responses to it. The Tribunal notes that, at the time of writing the first report, Dr Craig had seen only MW’s witness statement and the 2 VDPS decisions. A second report was provided to the Tribunal after the other evidence in the case had been seen.

30.

Dr Craig’s report considers causation at the population level as compared to the individual level. She asserts that the epidemiological studies undertaken by WHO and MHRA aim to establish a certainty of causation. Dr Craig gives the example of the Pandemrix vaccine (against swine flu) causing narcolepsy in young people during 2009. By 2010 it was evident that there was an increased risk and there were various studies ongoing. In 2017 the government lost a High Court case to avoid paying compensation, yet it was not until 2023 that the MHRA first said there was a “causative relationship” [493].

31.

Dr Craig makes the point (and this was accepted by Professor Conlon) that MIS-A was not seen as a condition before COVID-19 [493]. There was no method of separately recording those cases where COVID-19 was present and those where it was not.

32.

In terms of individual causation, Dr Craig refers to 3 core criteria: temporal association, mechanism of harm, lack of alternative diagnosis [494]. Dr Craig applies the WHO “Adverse Events Following Immunization (AEFI): Causality Assessment” (otherwise known as the Brighton Classification). The causality term “very likely/certain” is assessed by the criteria “A clinical event with a plausible time relationship to vaccine administration and which cannot be explained by concurrent disease or other drugs or chemicals” – Dr Craig opines that this would apply to MW [496]. The Brighton Collaboration flowchart used was referred to by the first medical assessor for the Respondent.

33.

Dr Craig agrees with the first assessor that there is no biologically plausible alternative explanation” [499].

(b)

Professor Christoper P Conlon dated August 2024

34.

The Respondent submitted a report from Professor Conlon. He is a Consultant in Infectious Diseases and General Medicine. His qualifications and experience are set out in the report [507].

35.

Professor Conlon refers to MW as having a considerable past medical history involving joint problems. He has had numerous knee operations, including bilateral knee replacement surgeries, he has had foot problems, shoulder problems, lumbar spondylosis, BMI 31 and has received treatment for anxiety and depression. Professor Conlon acknowledges that at the time of the vaccination he was working as an HGV driver [508].

36.

The history of MW’s attendance at hospital is documented (Professor Conlon had seen the medical records at the time of writing his report) [508]. Professor Conlon notes from the records that pericarditis was thought to be the diagnosis, a chest x-ray showed some “haziness” in the right lower zone, mild basal lung consolidation, treatment for acute coronary syndromes was started, blood tests showed raised inflammatory markers, slightly raised white blood cell count [510]. Pain and fever persisted. The echocardiogram showed a small rim of pericardial effusion and the right ventricle was dilated. There was a working diagnosis of myo-pericarditis [511 para 17]. The inflammatory markers were “considered a bit high for simple myocarditis”. At this stage a possible diagnosis of multi-system inflammatory syndrome (MIS A) associated with SARS-CoV-2 (or COVID vaccine) was raised by the microbiology consultant, Dr Graham. Professor Conlon refers to email correspondence between consultants referring to a pre-print article assessing adverse events following COVID vaccines that included myocarditis (but not MIS-A). Professor Conlon goes on to describe further symptoms and treatment [512-3].

37.

Professor Conlon reports studies of MIS-A and MIS-C in children and adults with COVID-19. There remains no clear explanation of the mechanism causing the condition [515]. He cites a US study showing an increased risk in children of developing myocarditis following receipt of the vaccine (AZ was never used in the US). The risk was considered low.

38.

The report refers to an investigation of MIS-A following COVID-19 vaccination but the numbers were so low that it was not clear if they were related to vaccine receipt [516].

39.

Professor Conlon refers to the Brighton Collaboration definition but says there is no universally agreed case definition for MIS-A. He states that no cases of MIS-A were reported during trials of the vaccines. He says that the risk of developing MIS-A after receiving a vaccine was considerably less than 1 in a million. The MHRA considered that there would have been more cases if there was an established link.

40.

In terms of Myocarditis Professor Conlon says that, although there were over 100 cases of myocarditis following the use of mRNA vaccines, there were so few cases after the AZ vaccine that the UK Health Security Agency guidance said they were more likely to have occurred by chance coincidental events than the vaccine.

41.

It is Professor Conlon’s opinion that the diagnosis of MIS-A was wrong as it was not multi system – the lung involvement being secondary to the heart failure. Professor Conlon does accept that MW did have myocarditis, raised inflammatory markers and a fever lasting more than 3 days. However, he says MW doesn’t satisfy the Brighton Collaboration definition [521].

42.

Professor Conlon says he can’t rule out that MW had asymptomatic Covid-19 before the vaccine but he does consider it to be unlikely. He also considers that the RA may have been pre-existing condition, although does note that tests prior to the vaccine were negative [522].

43.

Professor Conlon does not accept Dr Craig’s report. He questions her area of expertise and notes that she did not have sight of the medical records. He considers acute myopericarditis to be an alternative explanation/diagnosis. Professor Conlon considers that the myopericarditis was not caused by the vaccine as the symptoms came on too quickly, most cases being 2-6 weeks post infection.

44.

Professor Conlon considers MW’s main disability to relate to his long-standing joint problems, now diagnosed as seronegative rheumatoid arthritis and that these pre-date the vaccine.

(c)

Professor Keith Neal

45.

The Respondent submitted a report from Professor Neal dated 21/08/2024 [690]. He is Emeritus Professor in the Epidemiology of Infectious Diseases at the University of Nottingham. He was asked to comment specifically on the report of Dr Craig.

46.

The report provides a useful analysis of the theory of epidemiological studies, how data is gathered and analysed and the numbers required for there to be any degree of certainty for general causation to be accepted. Professor Neal does not comment specifically on MW’s case

47.

Professor Neal comments that it was not possible to find evidence as to whether new onset Atrial Fibrillation was associated with Covid vaccine or not, despite the vaccine been recognised to cause heart inflammation. This suggests that not all causal links between adverse events and vaccines are the subject of specific reports, papers or definitions [696].

48.

It is not clear from the report of Professor Neal what documents he had sight of before preparing his report [691].

(d)

MHRA response to Questions from VDPS 15/08/2024

49.The Respondent asked for a response to the issues raised in Dr Craig’s report. The response is at [927]. It provides information about the way in which the MHRA works. It does not make specific comment on MW’s case.

(e)

2^nd Report of Dr Clare Craig

50.

This is submitted on behalf of MW [2230]. The report is prepared by Dr Craig having seen the medical records and 2 reports (presumably that of Professor Conlon and of Professor Neal). Dr Craig confirms that the additional evidence has not changed her view [2232].

51.

Dr Craig responds to the report of Professor Conlon [2232]. She disagrees with his finding that the MIS-A criteria were not met and refers to specific pages in the GP records/medical notes to support her view that both vasculitis and MIS-A were diagnosed and are referred to in the medical records. The page references cited by Dr Craig accord with the Tribunal’s bundle and will not be repeated here.

52.

Dr Craig points to evidence in the medical records that, at the time of discharge from hospital, some inflammatory markers were still raised and respiratory issues were continuing [2233]. Dr Craig gives the example of the letter on [1041] following a hospital attendance in November 2021.

53.

Dr Craig maintains that MW met the Brighton Collaboration criteria for MIS-A [2234-2236]. She further comments that the fact that an adverse event is rare (100-1000 per million) or very rare (less than 100 per million) does not rule out the vaccine as a cause. The example given is that Guillaine-Barre Syndrome is accepted to be a very rare potential consequence of the flu vaccine (1-2 per million doses).

54.

Dr Craig provides an explanation for the timeline for the onset of symptoms following vaccination as opposed to following Covid-19 infection [2236]. The explanation is that the vaccine enters the body in a different way to an infection/virus, which, Dr Craig states, only rarely becomes systemic. All of MW’s COVID tests were negative.

55.

Dr Craig comments of Professor Neal’s report [2239-40]. The comments are noted by the Tribunal but will not be detailed further in this statement of reasons.

(f)

The second (addendum) report of Professor Conlon

56.

This was sent to the Tribunal by separate email. References will be to pages in the report. There are no paragraph numbers. The report is in response to Dr Craig’s 2^nd report. Professor Conlon confirms he has no financial interest in the vaccine or with AZ and was not involved in the development of the vaccine.

57.

Professor Conlon accepts that “there is no doubt MW presented with a moderately severe myopericarditis soon after receiving his first COVID-19 vaccination”. He goes on to say “The issue is whether this illness was causally associated with the vaccine or whether it was just an association in time but not caused by the vaccine”. He also considers whether it was a multi-system inflammation and concludes that it was not [3].

58.

Professor Conlon concludes that MW had myopericarditis [6]. He opines that spontaneous myocarditis is more common than rare side effects of a vaccine and therefore, on the balance of probabilities, the relationship between the two events is more likely to be coincidental rather than causal. He states that a causal link with the viral vector vaccines has not been established (unlike with mRNA vaccines) [8]. AZ is a viral vector vaccine. (g)

Second report of Professor Neal

59.

This was received by the Tribunal in a separate email. The page numbers will refer to the pages of the report. It was prepared in response to Dr Craig’s second report.

60.

Professor Neal states it is not within his expertise to assess whether he [MW] had MIS-A or to assess disability [2]. He comments on the scientific approach to causation in the report and specifically challenges the conclusions of Dr Craig.

61.

In para 9.8 Professor Neal comments that Narcolepsy occurs unrelated to Pandemrix which leads to the requirement to analyse which cases may be vaccine related and those that are not. [6]”

In the next 2 paragraphs the Tribunal briefly set out the law. I shall do that in a little more detail below.

In its next paragraph the Tribunal made its findings of fact as follows:

“64.

Findings of Fact

a)

The timeline of events sent out in the witness statement of MW and set out in the chronology above are accepted by the Tribunal.

b)

MW began to feel unwell on the day he had the vaccine and became progressively worse until his hospital admission.

c)

At the time of his admission to hospital as an inpatient, MW was seriously ill and treated as an emergency.

d)

Those treating MW during his hospital admission made various diagnoses. The Tribunal found that MW’s presentation was so unusual that there were several different diagnoses made.

e)

Those treating MW were satisfied that the criteria for MIS-A were satisfied. The diagnosis is repeated several times in different documents. The Tribunal finds that such a diagnosis would not have been made if only the heart had been involved.

f)

Myopericarditis was also diagnosed whilst MW was in hospital.

g)

Post discharge, MW was diagnosed with seronegative inflammatory arthritis and fibromyalgia.

h)

The medical professionals who continue to treat MW maintain that his ongoing medical conditions were caused by a severe reaction to the AZ vaccine.

i)

MW was repeatedly tested for Covid-19 infection but these tests all came back negative.

j)

At the time of the AZ vaccination, MW was living with his partner and children in the Lake District. They had recently moved there and had no family in the area. The children were not in school, the gym where his partner worked was closed. The company that MW worked for delivered PPE during the pandemic and were fastidious in their approach to infection control. Paperwork was left in the cab of the HGV so there was no contact with office staff. The vehicles were cleaned with a hygiene “bomb” after each use. The risk of covid infection was therefore very low in any event. No one in the family had any signs or symptoms of covid prior to MW receiving the vaccination.

k)

Prior to the vaccination, MW was a fit and healthy 52 year old man. He had a very physical job, working long hours, as an HGV driver and a physically active family life, cycling and walking regularly.

l)

MW had a history of joint pain and operations on his knees. The diagnoses, symptoms and treatment were all consistent with wear and tear osteoarthritis. His GP referred him for blood tests to rule out any inflammatory conditions, such as rheumatoid arthritis, approximately 12 months prior to the vaccination. Those tests were negative and no specialist referrals made.

m)

Prior to the vaccination, MW was not signed off sick, he was not on medication and had not been referred to any specialists.

n)

All experts have their own opinions. The Tribunal accepted each expert’s report at face value and was satisfied that all were fully aware of their duty to the Tribunal.”

Finally, the Tribunal set out its analysis and conclusion

“Analysis and Conclusion

65.

The Tribunal finds, on the balance of probabilities, having had regard to all the evidence, both written and oral, that the AZ covid vaccination caused the MIS-A and the myopericarditis that MW was diagnosed with whilst in hospital and caused the ongoing complications that followed.

66.

The Tribunal found that this was the most likely explanation in the absence of any other contemporaneous precipitating factor. There was no positive test result for covid infection, no positive test for any other infection. There was no history of inflammatory conditions.

67.

The symptoms had a very close temporal association to the vaccine. Whilst this is not a determinative factor the Tribunal found it to be an important aspect of the evidence.

68.

The Tribunal preferred the evidence of MW’s treating medical professionals at the time of his hospital admission and those providing treatment following discharge from hospital. The Tribunal found that they were professionally qualified, able to observe and examine MW at the relevant time, assess his symptoms, the cause of those symptoms and to make the appropriate diagnoses.

69.

The Tribunal considered the expert evidence in this case. It found that the fact that an adverse reaction to a vaccine was very rare, or had not been observed before, did not mean that causation was impossible or unlikely. Very rare events do happen. The chance of winning the UK lottery is approximately 1:14 million but people do win it. The figure is 1:139 million for Euromillions.

70.

The absence of an official study establishing that the AZ vaccination could cause MIS-A and Myopericarditis does not mean that it did not cause those conditions in MW. The Tribunal could find no other plausible explanation given the temporal association, the absence of any relevant history (tests for an inflammatory condition a year prior to the vaccine having been negative and treatment for joint pain being entirely consistent with osteoarthritis which is not an inflammatory condition) and there being no evidence of a positive test for any specific infection.

71.

The Tribunal was concerned only with whether the AZ vaccine had, on the balance of probabilities, caused the medical conditions claimed by MW, not whether they might have occurred in anyone else.

72.

The VDPS has accepted claims in respect of the AZ vaccine for chronic heart disease, myocarditis, pericarditis, some inflammatory conditions, rash and vasculitis. The Tribunal found that, having regard to all the evidence and circumstances in this case, the medical conditions experienced by MW (as set out above) are more likely than not to have been caused by the AZ vaccine administered to MW on 10.04.2021.”

The NHSBSA sought permission to appeal on 16 April 2025, which was refused by Judge Kneale on 10 July 2025. That decision was issued to the parties on 14 July 2025.

The NHSBSA sought permission to appeal to the Upper Tribunal in form UT2 on 14 August 2025, the last day of the deadline for appealing to the Upper Tribunal, but sought an extension of time for the service of the grounds of appeal until 11 September 2025. The NHSBSA explained that

“Having given careful consideration to the First Tier Tribunal's decision to refuse permission, the Applicant sought independent legal advice from Counsel to help further determine whether an appeal to the Upper Tribunal was merited. Once received, that advice has had to go through a clearance process, which is undertaken by both NHS Business Services Authority, as administrators of the Vaccine Damage Payment Scheme on behalf of the Secretary of State, and the Department of Health and Social Care, as policy holders of the scheme. This inevitably affects the speed at which the Applicant can make its decision and finalise the application. At the time of writing, the Applicant anticipates that completion of the clearance process will be within the next week. Thereafter, the statement of reasons will be finalised and approved before being filed with the Upper Tribunal. On this basis, the Applicant is apply for a 28-day extension to finalise its application, taking the deadline for doing so to 11 September 2025.”

The grounds of appeal were duly served on 10 September 2025, 1 day before the expiry of the 28 day extension which had been sought. MW opposed such an extension of time.

On 30 October 2025 I directed that there be a rolled-up oral hearing of the application for permission to appeal (including the question of an extension of time), with the appeal to follow if permission is granted, so as to obviate the need for a second hearing.

The parties appeared before me on 16 January 2025. NHSBSA was represented by Mr David Juckes of counsel (who had not appeared below) and MW was represented by Mr Peter Todd of Scott-Moncrieff & Associates, acting pro bono (who also had not appeared below). MW himself, together with TT, observed the hearing remotely by video from his home. I reserved my decision.

The 1979 Act provides for a no-fault compensation scheme for injuries caused by administration of vaccines. The criteria are set out in s.1. If the Secretary of State is satisfied that the claimant is severely disabled as a result of vaccination against certain listed diseases, administered in the UK, he shall make a payment to the claimant of a statutory sum, currently fixed at £120,000 by the Vaccine Damage Payments Act 1979 Statutory Sum Order 2007 (“the 2007 Order”).

Should the Secretary of State decide the claim against the claimant, the claimant may appeal to the First-tier Tribunal under s.4(1) of the 1979 Act. In deciding an appeal, the Tribunal shall consider all the circumstances of the case (including any not obtaining at the time when the decision appealed against was made): s.4(4).

In accordance with s.7B of the 1979 Act, any decisions made under the provisions thereof are final, although that does not oust the jurisdiction of the Upper Tribunal in respect of errors of law, which is enshrined in s.11(2) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).

I can deal with the question of an extension of time as a discrete issue before turning to the substantive grounds of appeal.

For the NHSBSA Mr Juckes submitted that the Upper Tribunal had a wide discretion to extend time, but it was not a triviality: In re Salmon [1981] Ch 167. The NHSBSA relied on the factors enumerated by Morgan J in Data Select Limited v HMRC [2012] UKUT 187 (TCC) at [34]:

“As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions: (1) what is the purpose of the time limit? (2) how long was the delay? (3) is there a good explanation for the delay? (4) what will be the consequences for the parties of an extension of time? and (5) what will be the consequences for the parties of a refusal to extend time.”

He submitted that:

it was accepted that the time limit for applying for permission to appeal was a core time limit of the Upper Tribunal.

the NHSBSA sought an extension within the time limit. The bundle was over 2,000 pages and 3 different experts were involved. The extension sought, 28 days, was reasonable and proportionate, having regard to the issues raised by the appeal and the complexity of the case.

the NHSBSA had explained the reasons for the delay in its UT2 continuance sheet. The decision notice refusing permission to appeal was received in the middle of August. Key individuals from NHSBSA were unavailable for parts of the summer. Counsel’s advice had to be sought and the application had to undergo a clearance process through the organisation.

it was recognised that there was prejudice to MW in that he currently had a judgment in his favour and the process of assessment was “on hold” until the application was resolved. He had not, however, suffered any forensic prejudice. Should the application be refused, the NHSBSA would have no further remedy.

Mr Todd for MW opposed the extension of time. He submitted that MW was suffering extreme financial hardship and distress as a result of suffering very severe disablement as a result of a catastrophic adverse reaction to the COVID-19 vaccine. He had lost his job as a result of his disablement and was in daily severe pain and acute financial hardship. The toll of his suffering had been unbearable on him and on his whole family. He was desperate to secure a vaccine damage payment as that would immediately relieve some of his daily hardship.

He submitted that the grounds of the application were that officials were off on their holidays and did not want to consider whether or not to seek permission to appeal within the time limits of the Tribunal Rules. They therefore sought special privilege from the Upper Tribunal that they should, unlike other parties, be able to take their time to think things over and go off on their holidays and not have to deal with this matter for the time being. MW was distraught that the NHSBSA should be allowed to seek special privileges when it was employing a top firm of London commercial solicitors and counsel all at public expense in order to seek such special privilege. There was absolutely no merit in the proposed appeal as there was plainly no point of law and it was an abuse of process and an abuse of public funds. It was also an abuse of MW, who had been left to suffer completely unaided. No grounds of appeal had been outlined to the Upper Tribunal. The application for an extension of time should be summarily dismissed and instead the NHSBSA could do so out of time and seek to justify its delays to the Tribunal when it filed its grounds of appeal and properly argued its case.

In terms of chronology, I should explain that, although the form UT2 was received by the Upper Tribunal Office on 14 August 2025 and the grounds of appeal were submitted on 10 September 2025, the case was not ready for allocation to any judge until 17 October 2025 and the First-tier Tribunal papers were not received until 24 October 2025. I promptly made the directions which I did on 30 October 2025, but by then the grounds of appeal had been received several weeks beforehand.

I have considered the Upper Tribunal’s decisions in Data Select Limited and Leeds City Council v HMRC[2014] UKUT 0350 (TCC) in respect of the criteria to be applied by the Tribunal when deciding whether to allow an application for permission to appeal to proceed out of time.

I have also considered the Upper Tribunal’s decision in BPP University College of Professional Studies v HMRC[2014] UKUT 496 (TCC) in which the Data Selectprinciples were applied. (BPPwas considered further in the Court of Appeal and the Supreme Court, but on a different point).

In Leeds City CouncilJudge Bishopp (CP) commented at [19] that:

“In my judgment therefore the proper course in this tribunal, until changes to the rules are made, is to follow the practice which has applied hitherto, as it was described by Morgan J inData Select.”

This is a reference to the following passage in Morgan J’s decision in Data Select Limited which I have cited above.

Applying those principles, I have had regard to the following factors. Firstly, I find that the purpose of the time limit in relation to an appeal to the Upper Tribunal is to preserve the important principle of finality. MW, once the refusal of permission to appeal had been issued on 14 July 2025, was entitled to regard the matter as closed 1 month thereafter. However, on that day the NHSBSA submitted its form UT2 seeking permission to appeal within time, so that MW was aware that the matter was being pursued by an application made within time.

Secondly, I find that the period of delay in submitting the grounds in support of the application for permission to appeal was relatively short, being less than 1 month out of time. The application for permission to appeal itself had been received within time.

Thirdly, the NHSBSA has provided adequate explanation for the delay, namely that key individuals from NHSBSA were unavailable for parts of the summer. Counsel’s advice had to be sought and the application had to undergo a clearance process through the organisation in a case where the bundle was over 2,000 pages and 3 different experts were involved. The extension sought, 28 days, was reasonable and proportionate, having regard to the issues raised by the appeal and the complexity of the case.

Fourthly, the consequences to the parties of granting an extension of time would be the ability for the appellant to bring its case, but that must be weighed against the implications of re-opening a matter which was reasonably regarded by MW as about to be concluded on 14 August 2025.

Fifthly, the implications for the parties of not extending the time limit are that the matter would remain closed so far as MW is concerned, but that the appellant would have lost its opportunity to apply to this Tribunal. That would be a serious matter in respect of a short delay.

On the basis of those considerations my conclusion is as follows. Having weighed all the relevant considerations in the balance, I have concluded that it is fair and just and in the interests of justice to grant an extension of time so as to admit the grounds of appeal out of time. The factors relied upon for extending time are in my view sufficiently weighty to justify the submission of the grounds of appeal on 10 September 2025 rather than on 14 August 2025. The extension sought, 28 days, was reasonable and proportionate, having regard to the issues raised by the appeal and the complexity of the case. In fact the case was not ready for allocation to a judge until 17 October 2025, by which time the grounds of appeal had ben submitted over a month earlier. I therefore consider that it is in the interests of justice to extend time for lodging the grounds of appeal in support of the application for permission to appeal under rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Accordingly, the time for the service of the grounds of appeal in support of the application for permission to appeal is extended to 11 September 2025 and the grounds of appeal are admitted.

There were 8 grounds of appeal:

the Tribunal’s findings that MW had suffered from MIS-A was unreasonable and/or irrational

the Tribunal failed to supply adequate reasons as to why it rejected Professor Conlon’s view on MW’s diagnosis

the Tribunal’s findings that MW’s MIS-A and/or myopericarditis was caused by the vaccine was unreasonable and/or irrational

the Tribunal failed to supply adequate reasons as to why it rejected Professor Conlon’s view on causation

the Tribunal’s finding that MW’s inflammatory arthritis had been caused by the vaccine was unreasonable and/or irrational

the Tribunal failed to supply adequate reasons as to why it held that the vaccine had caused the arthritic condition

the Tribunal failed to distinguish between inflammatory and rheumatoid arthritis

the Tribunal’s reliance on previous awards by the VDPS was unreasonable and/or irrational.

For the NHSBSA Mr Juckes submitted that, in essence, is that the Tribunal’s findings were unreasonable. They placed too much reliance on the recorded views of MW’s treating clinicians when he became unwell in 2021, when the extent of the expertise of those clinicians on vaccine injuries was unknown. It supplied inadequate reasons for rejecting the NHSBSA’s expert evidence.

As the Tribunal placed significant weight on MW’s treating clinicians, a summary of the contemporaneous records was necessary (again I have left in the page references cited by Mr Juckes from the original trial bundle).

MW, aged 52, received the AZ vaccine on 10 April 2021. On 13 April 2021 he had a telephone consultation with his GP in which he stated “ok Saturday felt as if hit by train yesterday … feeling cold and room is spinning all joints sore” [961]. He attended Accident and Emergency on 18 April 2021 but was discharged home and then returned again on 20 April 2021 [1828]. He was found to have a high CRP of 409 and raised white cell count of 14.2 [1830]. He reported saturations of 81%-86% at home [1829] but this increased to 96% in the unit [1828]. He had chest tightness and chest pain on deep inspiration [1829]. Doctors noted raised and increasing troponin [1973] and ST-segment elevation of ECG [1974]. The on-call cardiologist was consulted; they advised that this did not look like a heart attack and may be “possible pericarditis” [1974]. On 22 April MW was transferred to coronary care [1976].

On 22 April 2021 MW’s case was reviewed by a microbiologist; a working diagnosis of myopericarditis was noted. He stated that such cases were usually viral, but that he was slightly concerned that some features suggested an alternative aetiology. He discussed with a cardiologist whether that could be MIS-A caused by the vaccine [1982]. An email exchange to that effect was recorded; two cardiologists considered that the CRP was high for pericarditis and considered that “post-vaccine MIS” was a possibility [2039]. MW was treated with steroids (an infective process having therefore been excluded, as steroids are immunosuppressive) [1983].

COVID-19 swabs taken on 20 April, 24 April and 30 April 2021 were negative [1840].

On 26 April 2021 a cardiologist wrote that the diagnosis was “viral myopericarditis vs MIS response to COVID-19 vaccine” [1987]. There was a discussion with a respiratory consultant who recommended anticoagulation as small vessel PE could not be excluded [1992]. On 28 April 2021 a consultant rheumatologist wrote that they agreed that the diagnosis looked like MIS in response to the AZ vaccine [2000].

On 4 May 2021 there was a discussion with an immunologist who felt that MW was suffering from either HLH (Hemophagocytic lymphohistiocytosis) or MIS [2016]. Most markers for HLH were absent and this was less likely. However, MIS was very rare and they suggested discussion with an inflammatory disease specialist if there was any diagnostic dilemma. By 5 May 2021 MW had improved [2018] and the instruction was given to cease steroid treatment and switch to antibiotics, doxycycline (ultimately steroids were continued for a further week) [2020].

The discharge summary on 7 May 2021 confirmed that MW’s symptoms resolved prior to discharge. His inflammatory markers had declined. The summary also stated that he was treated as a case of MIS-A probably triggered by COVID vaccine [1966].

There was then mixed history concerning further symptoms. From the GP electronic record it appeared that MW had some shoulder pain in the aftermath of his admission, although a diagnosis of subacromial impingement had been made beforehand [959]. On 8 November 2021 he attended complaining that when he overused his hands, they “turned into claws” and he got elbow pain [955]. Two weeks later he attended saying he was aching all over his body. The GP referred him to the rheumatologists saying the joint pains had continued since the admission.

A consultant rheumatologist on 12 April 2022 diagnosed him with “mild early inflammatory arthritis” and fibromyalgia. His autoimmune profile was negative [1739].

On 5 October 2022 MW was reviewed by a cardiologist who recorded that his symptoms “on receiving the AZ vaccine” had settled. He had a flare-up of his rheumatoid arthritis [1766]. On 9 June 2023 MW’s GP wrote that he had “developed multisite inflammatory (Rheumatoid) arthritis and this is one of the main reasons he cannot work. He also has Fibromyalgia and this has left him with fatigue and brain fog (…)” [1796].

MW saw a neurosurgeon on 24 May 2024 who noted “M had quite a bad immune reaction to a COVID vaccine that as a result had to spend a long time in ITU and now has severe respiratory problems and severe myocarditis.”

MW made his application for a payment under the VDPS on 19 May 2021 [15]. He provided details of his time in hospital and averred that he was now unable to work.

His application was considered by a medical assessor [38]. The assessor accepted that MW met the criteria for MIS under the Brighton Collaboration [46]. The assessor noted that the Medicines and Healthcare products Regulatory Agency’s Yellow Card reporting had not mentioned a relationship between the AstraZeneca Vaccine and the development of MIS, but had found causation between myocarditis and pericarditis [46-7]. He noted the apparent temporal association between the vaccination and symptoms [47]. He noted the ongoing symptoms felt to originate from MIS by the Respondent’s GP. The assessor found causation of MIS-A. However, the criteria for severe disability in s.1(1) of the 1979 Act were not met [49].

MW sought reversal under s.3A of the 1979 Act [55]. A second medical assessor reconsidered his case in June 2023 [63]. On this occasion, the medical assessor noted that the UK Health Security Agency’s Green Book made no mention of any association between the AZ vaccine and MIS-A (there was mention of MIS in children who had suffered from COVID). The assessor also cited an MHRA regulatory summary which had become available after the previous assessment stated that “MHRA has not established a link between MIS and any of the COVID-19 vaccines AstraZeneca, Moderna or Pfizer”. That summary had become available after the previous assessment [69]. The assessor noted the temporal association and opinion of MW’s treating consultant, but considered that, “based on the reviewed medical and epidemiological evidence available, on the balance of probabilities (…) this episode of MIS/rheumatoid arthritis was not caused by the COVID-19 AstraZeneca vaccine.” [70]

MW appealed to the Tribunal [466]. In his submission he averred that he had suffered MIS caused by the AZ vaccine and relied inter alia on the report by the first assessor. He averred that the MIS had led to the diagnosis of rheumatoid arthritis, “arising from the same systemic and autoimmune inflammation triggered by (the AZ vaccine)” [468].

MW relied in his Appeal on a report from Dr Craig, a pathologist [488]. Dr Craig focused on the MIS; her report did not mention arthritis. Her suggested mechanism was an exaggerated immune response caused by the vaccine’s spike protein, which was the same shape as a toxin found in a type of staph which could have caused toxic shock syndrome [498]. There were no cases of MIS prior to 2020 and, given MW tested negative for COVID-19 in hospital, it was unlikely that that was the reason for the condition [499]. Dr Craig’s report was written in the absence of the medical notes, but she supplied a subsequent report having reviewed the records.

The NHS relied on Professor Conlon, Consultant in Infection Diseases [506] and Professor Neal, a professor of epidemiology [690].

Professor Conlon denied that MW had MIS. He did not fulfil the criteria in the Brighton Collaboration definition [520]. This was a case of myopericarditis alone. Professor Conlon stated that the symptoms were too soon after administration to be related to the vaccine [521]. As to the rheumatoid arthritis, he stated that his joint problems predated April 2021: his GP noted in February 2020 that MW had “painful joints everywhere” and that the joints were sometimes swollen [522]. He disputed Dr Craig’s analogy with toxic shock syndrome [523]. He averred that the temporal association did not prove causation; acute myopericarditis was a relatively common diagnosis [524].

Professor Neal provided comment on Dr Craig’s report from an epidemiological perspective. He confirmed that there was no reliable data that linked MIS-A to vaccine administration [696].

All experts provided follow-up reports confirming their views. They appeared at the hearing and were cross-examined.

The Tribunal found for MW on causation. Its core reasoning is expressed in the following paragraphs from the decision: [4], [64](e) and (h), [66-68], [70] and [72]

Mr Juckes submitted that the NHSBSA’s case was that the Tribunal placed no weight on any expert evidence whether for or against MW’s case, and relied most heavily on the treating clinicians, as well as payments in previous cases.

The Upper Tribunal would give permission to appeal only if there were a realistic prospect of an appeal succeeding, unless there was exceptionally some other good reason to do so (see, by analogy, Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538) {107}.

MW’s right of appeal was defined in s.11 of the 2007 Act. The appeal could be brought only in respect of a “point of law”.

Brooke LJ summarised the most frequently encountered points of law in R (Iran) & Ors v SS for Home Department [2005] EWCA Civ 982, including:

“i)

Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);

ii)

Failing to give reasons or any adequate reasons for findings on material matters;

iii)

Failing to take into account and/or resolve conflicts of fact or opinion on material matters (…)”

As to the first, irrationality, that would apply where no tribunal acting rationally could have such finding: Beacon Insurance v Maharaj Bookstore [2014] 4 All ER 418. In Connex SE Ltd v Bangs [2005] ICR 763 Mummery LJ stated at [7] that:

“The tribunal's findings of fact, including findings on the credibility of witnesses, can only be challenged on appeal if it is established that no reasonable tribunal could have made the findings in question. A perverse decision is erroneous in law. It must be shown by the appellant that material findings of fact by the tribunal are perverse because, for instance, they are unsupported by any evidence, or they are contrary to uncontradicted evidence or they are plainly wrong for some other reason.”

That had been described as a high bar. In Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 the Court of Appeal stated that it was a “strong charge to make and maintain”. Buxton LJ identified that a failure properly to understand the jurisprudence might be “more promising”.

Where the Tribunal was a specialist one (as in this case) the bar was higher. A specialist Tribunal could normally be expected to apply its expertise in the course of its analysis of the facts: DWP v Information Commissioner [2017] 1 WLR 1. The higher courts would accord due deference to the Tribunal’s view.

As to adequacy of reasons, the requirement for a Tribunal to give sufficient reasons for its decisions was well-established: Meek v Birmingham DC [1987] IRLR 250. The Tribunal’s decision should, however, be read on the assumption that, unless demonstrated to the contrary, the tribunal knew how to perform its functions and what matters to take into account: Piglowska v Piglowski [1999] 1 WLR 1360.

A Tribunal needed to give fewer reasons where it was rejecting opinion evidence on the very point that the expert tribunal had to decide: H v East Sussex CC [2009] ELR 161 at [17-18]. Nevertheless, reasons should be given for rejecting expert evidence: English v Emery Reimbold [2002] 1 WLR 2409 at [20].

The appeal concerned causation of an alleged vaccine injury. Causation was determined on the balance of probabilities and was a lower bar than any standard of scientific certainty. As the Court of Appeal said in R v Vaccine Damage Tribunal, ex parte Doherty [1994] Lexis Citation 5199, “The tribunal (…) does not carry out a process whereby the medical members simply reach a diagnosis based on medical data alone.” This element might lead the Tribunal:

“to a finding in favour of the applicant which would not be strictly justified on the application of the principles of medical science alone, since the conclusion may be reached by inferences which would not be permissible in the formation of a definitive diagnosis”.

The absence of epidemiological studies was not necessarily a bar to an award. In the SC009/19 case, the appellant developed narcolepsy after a flu vaccine. The Secretary of State had 4 experts who effectively relied on the absence of any epidemiological study to establish a link. The Tribunal stated “in our view, this is evidentially neutral”, in that “it neither supports a causative link nor does it disprove a causative link”. The NHSBSA contended that that would not, however, apply where epidemiological evidence was available and it did not support a link, as in this case.

The distinction between “scientific” and “clinical” proof was also discussed by Stuart-Smith LJ in Loveday v Renton & an. [1988] Lexis Citation 1943, a case concerning possible vaccine damage:

“(the plaintiff) has submitted that a distinction is to be drawn between scientific proof and clinical proof, which he equates to proof on balance of probability. He contends that the effect of the evidence is that while the proposition for which he contends is not scientifically proved it is clinically proved. (…) But I have not found Mr Brodie's submission of great assistance for a number of reasons. First, I do not think there is any generally accepted standard of scientific proof, nor is it clear who has to be satisfied to such a standard. (…) Secondly, the expression "clinical proof" appears to be used to mean two different things. First, it is used in the sense of making a diagnosis in a particular case. Quite clearly if a clinician is to make a diagnosis in a given case that a child is suffering from permanent brain damage caused by pertussis vaccine, he can only do so on the basis that he has already reached the conclusion that pertussis vaccine can cause brain damage. (…) The decision then depends upon the clinician's judgment as to whether or not the clinical signs and symptoms and the history relating to the patient meet certain criteria determined by the clinician in question. It also appears to be used as the standard of proof in determining to the clinician's satisfaction whether the vaccine can cause brain damage. Ultimately this is the question for the Court and in my mind the only significance of this topic is that when considering a witness’s assertion that he is or is not satisfied of a certain fact, the Court must bear in mind that he may be applying too low or too high a standard of proof.”

Stuart-Smith LJ went on to give guidance on how to assess the opinion of a witness in evaluating causation:

“The mere expression of opinion or belief by a witness, however eminent, that the vaccine can or cannot cause brain damage, does not suffice. The Court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The Judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence (…)”

That approach was not borne out by the Tribunal’s determination.

The Tribunal’s finding that MW had suffered from MIS-A was unreasonable and/or irrational

The Tribunal appeared to have based its conclusion that MW had MIS-A on the conclusions of his treating clinicians in West Cumberland Hospital: at [64(e)].

The Tribunal did not have sufficient basis to adopt the treating clinicians’ views. By analogy with Stuart-Smith LJ’s dictum in Loveday, before adopting the opinion of the clinicians the Tribunal had to evaluate their expertise and the reasons given for their diagnosis. The Tribunal was not in a position to do so. The diagnostic criteria used by the treating clinicians was unknown. In particular, it was not clear whether treating clinicians were using the Brighton Collaboration case definition [426]; the WHO case definition [529]; the CDC definition [530]; or another definition.

MIS-A was an emerging diagnosis in 2021. At the time of publication of the Brighton Collaboration there was “only a preliminary definition for MIS-A” (Vogel et al 25 February 2021 at 1.1.7 [423]). It could not be assumed that the clinicians in 2021 would have reached the same conclusion in 2025 when MW brought his case to the Tribunal.

The Tribunal was furthermore not in a position to know what standard of proof the treating clinicians were using in making the diagnosis. There was also diagnostic uncertainty within the medical records which the Tribunal seem to have overlooked, for example the immunologist’s view on 4 May 2021 [2016].

By contrast, Professor Conlon had fully set out the Brighton Collaboration criteria and employed the same as a clear yardstick against which MW’s case could be measured.

The Tribunal failed to supply adequate reasons as to why they rejected Professor Conlon’s view on MW’s diagnosis

As the Court of Appeal set out in English at [20], when considering expert evidence a judge should:

“simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be, it should be apparent from the judgment.”

The Tribunal did not provide any analysis of Professor Conlon’s report. It did not set out why the criteria for dismissing MIS-A did not apply. It did not provide a reason for preferring the evidence of the treating clinicians over Professor Conlon other than a broad statement that the diagnosis would not have been reached had only the heart been involved [para.64(e)].

The Decision Notice did not demonstrate the analysis required by English. Even bearing in mind the Tribunal’s special expertise, it did not supply adequate reasoning.

The Tribunal’s finding that MW’s MIS-A (and/or the myopericarditis) was caused by the vaccine was unreasonable and/or irrational

The Tribunal stated that it preferred the evidence of the treating clinicians at [68]:

“The Tribunal preferred the evidence of MW’s treating medical professionals at the time of his hospital admission and those providing treatment following discharge from hospital. The Tribunal found that they were professionally qualified, able to observe and examine MW at the relevant time, assess his symptoms, the cause of those symptoms and to make the appropriate diagnoses.”

The Tribunal again fell into error. The treating clinicians had not been asked about their criteria for their conclusions nor had their expertise been fully identified. The Tribunal was unable to weigh up the internal consistency and logic of the clinicians’ views in the manner set out in Loveday. Nor did it know if the clinicians were working to the appropriate standard of proof.

What was known was that the clinicians had formed their opinions in 2021 in the absence of the further research from inter alia the MHRA concerning causation of MIS-A.

It was therefore unsafe for the Tribunal to rely on the treating clinician’s views.

Its view at [66] that the vaccine must have caused the MIS “in the absence of any other contemporaneous precipitating factor” presupposed that MIS-A and/or myopericarditis was less likely to have arisen spontaneously. Had that been the Tribunal’s view it was not properly set out.

It was accepted that the Tribunal also referred to a close temporal association between vaccine and hospitalisation. That was not sufficient in and of itself. As Stuart-Smith LJ observed in Loveday, “Where given effects, (…) occur with or without (…) vaccination, it is only possible to assess whether the vaccine is a cause, or more precisely a risk factor, if when the background incidence of the disease is taken into account.”

Nowhere is the analysis recommended by Stuart-Smith LJ to be found. The Tribunal should have scrutinized the reasons for the doctors’ views of MIS-A and causation and whether those held weight given the up-to-date epidemiological evidence. Had it done so, it would have been obliged to grapple with the relatively limited investigation into the definitions of the diagnosis in the record and also the concerns of the immunologist that the diagnosis was not so clear-cut.

The Tribunal did not deal properly with the epidemiological studies in this regard. Whilst at [69] it referred to the literature on vaccine injuries, it is unclear whether they were the evidence of Professor Conlon that the MHRA had concluded that there was no established link between the AZ vaccine and MIS-A. Insofar as it did so, it was insufficient to go on to state that rare events could nevertheless happen without considering whether a spontaneous event was more or less likely.

The Tribunal failed to supply adequate reasons as to why they rejected Professor Conlon’s views on causation

The NHSBSA’s argument concerning adequacy of reasons was repeated. Professor Conlon had set out clear reasons why MW’s symptoms were more likely to have arisen spontaneously. He stated inter alia that most cases of MIS-A following COVID-19 infection began 2-6 weeks post-infection, so one would expect a similar timeline in the hypothetical scenario that the vaccine had caused MIS-A. The Tribunal did not deal with Professor Conlon’s reasoning.

The Tribunal’s finding that MW’s inflammatory arthritis had been caused by the vaccine was unreasonable and/or irrational

MW has referred both to rheumatoid and inflammatory arthritis without making distinction between the two [62]. The NHSBSA assumed for present purposes that the Tribunal was treating the two conditions as the same.

The evidence from the medical records about arthritis was more equivocal than MIS-A. A musculoskeletal physiotherapist on 31 May 2023 wrote that “[MW] explained he has been managed for RA for a number of years”, implying that this condition had begun before the vaccine [1794]. His GP referred to “Multiple joint pain” on 27 April 2020.

MW’s expert Dr Craig did not specifically refer to inflammatory or rheumatoid arthritis in her reports. The nearest she came was mentioning a possible “poor recovery” from MIS-A [489].

The Tribunal attached significance to the absence of a positive test for rheumatoid factor before MW’s episode in hospital in 2021 (see [[64(l)], [70]). But that test had been prompted by further and more generalised joint pains which MW had begun to experience [969]. His test in 2022 was also seronegative [1735-6]. The Tribunal did not address the possibility that MW was already suffering from an encroaching joint pain condition. That was particularly acute given the references in the medical records:

Reference to general arthralgia in the knee, elbow, shoulders and neck on 21 March 2016 [987];

Reference to ongoing shoulder pain for many years on 8 October 2019 [973].

An inability to turn his neck without pain on 7 November 2019 [973], which the physiotherapist felt sufficiently bad to justify a trial of steroids on 11 February 2020 [971];

A history of “painful joints everywhere, worse than previously experienced” with occasional swelling, on 20 February 2020 [969-971]. MW described his pain as “constant, with no relief”.

A history of “joints now more painful than ever” on 27 April 2020, albeit now with no swelling [969]. The examination in which no joint swelling was found should not exclude inflammatory pathology given the previous reported symptoms.

On 3 July 2020 MW reported being unable to sleep except with a lot of painkillers [965];

The need for a further steroid injection on 9 October 2020, with good effect (suggesting a target for the steroids) [965];

The statement in the letter of Laura Hocking, Specialist Physiotherapist, dated 31 May 2023 that “[MW] explained he had been managed for RA for a number of years” (accepting that he then went on to describe a worsening after the hospital admission) [1794].

Given the MHRA’s conclusion that flare-up of inflammatory autoimmune conditions [RM4.1] in general was not recognised as an undesirable effect for the AZ vaccine (with the exception of Guillain Barre Syndrome) [186-7], the Tribunal did not have sufficient evidence to attribute the inflammatory or rheumatoid arthritis to the AZ vaccine.

A positive opinion was expressed by MW’s GP [1800], but there is no evidence that he had the requisite expertise to make such judgment. The evidence for causation was therefore too weak.

The Tribunal failed to supply adequate reasons as to why they held that the AZ vaccine had caused the arthritic condition

The Tribunal’s reasoning was set out in [70]: tests for an inflammatory condition a year prior to the vaccine had been negative, treatment for joint pain were consistent with osteoarthritis, and there was no evidence of a positive test for a specific infection. That was inadequate reasoning. The Tribunal should have set out how it considered the AZ vaccine had caused the rheumatoid arthritis, i.e., what was the likely mechanism. The NHSBSA did not know whether the Tribunal felt that the arthritic condition had been directly caused by the vaccine or whether it was consequent on the MIS-A. The mechanism should have been set out.

The Tribunal failed to distinguish between inflammatory and rheumatoid arthritis:

MW’s case is that he has been diagnosed with both rheumatoid and inflammatory arthritis [59]. The rheumatology clinic in April 2022 referred to “mild early inflammatory arthritis” only [1742]. The Tribunal did not distinguish between the two conditions in the Decision Notice.

That posed significant problems for the NHSBSA at the next stage of assessment. A medical assessor would be required to assess disablement for the purposes of s.1(4) of the 1979 Act. The assessor would be entitled to take into account any disablement caused by a disease or condition contracted other than via the vaccine. (S.4 of the 1970 Act referred for the method of assessment to s.103 of the Social Security Contributions and Benefits Act 1992. S.103 then referred to Schedule 6, under which Regulation 11 of the Social Security (General Benefit) Regulations 1982/1408 was made. Regulation 11 stated that the assessor “in a case where the other effective cause is (…) an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred.”) The assessor could not do so where it was not clear whether he should assess the inflammatory and rheumatoid arthritis as being one condition or whether the Tribunal found causation as regards inflammatory arthritis alone.

The Tribunal’s reliance on previous awards by the VDPS was unreasonable and/or irrational

The Tribunal’s reference at [72] to the claims accepted by the VDPS in other cases was irrelevant. The Tribunal could not know the evidence before the assessors in those cases, nor the state of knowledge of vaccine sequelae when the awards were made. Awards in previous matters did not set precedents. The fact of other awards should not have formed part of the Tribunal’s decision.

Furthermore, the Tribunal referred to awards for chronic heart disease, myocarditis, pericarditis, some inflammatory conditions, rash and vasculitis. The Tribunal did not explain how these were relevant for a claim for MIS-A and inflammatory arthritis and it was the NHSBSA’s case that they were not relevant.

Mr Juckes recognised that the threshold for irrationality was high. Nevertheless he submitted that it was met in this case and the Tribunal’s decision could not stand. The Upper Tribunal should remake the decision and dismiss MW’s claim on grounds of causation. In the alternative the NHSBSA invited the Upper Tribunal to remit the case to a differently constituted tribunal for re-hearing.

For MW, Mr Todd submitted that the matter arose out of an appeal commenced by MW against the decision of NHSBSA to refuse his application for a vaccine damage payment under the 1979 Act.

The NHSBSA had initially accepted causation, but refused the application on the grounds that MW’s disablement was insufficiently severe. He then applied for mandatory reconsideration and in response to that NHSBSA decided to change its stance on causation and to refuse the application on the grounds that the vaccine had not caused his disablement.

MW appealed against that decision to the Tribunal, which conducted a hearing in Liverpool on 7 and 8 April 2025. The NHSBSA was represented at that hearing by a top corporate law firm specialist in medical law and called evidence from two medical expert professors it had commissioned. MW, a severely disabled and medically retired lorry driver, appeared in person (although he had had the benefit of Mr Todd’s advice prior to the hearing). The NHSBSA therefore had every opportunity to make its case to the Tribunal.

The Tribunal issued a Decision Notice and Statement of Reasons to the parties on 17 April 2025, allowing MW’s appeal on the issue of causation. The issue of severity of disablement was referred back to the NHSBSA for reconsideration and provision was made for it to come back before the Tribunal for further hearing as to severity at an early time if severity were still deemed insufficient to qualify.

The 1979 Act created the UK’s statutory vaccine injury compensation scheme. The scheme required an application in the first instance to the Secretary of State for Health and Social Care. The Act provided in s.4 that in the event that the Secretary of State refused the application the applicant might appeal to the Tribunal. S.7B of the Act provided that decisions of the Tribunal were final. That was the clear intention of the legislation.

MW referred to the extract of Hansard provided in the authorities bundle containing the speech of the Minister, Mr David Ennals, on the second reading of the Bill which resulted in the 1979 Act. He assured the House of Commons that the Secretary of State would be bound by the decision of the review Tribunals. That was an assurance made in good faith by the Minister that the government would not seek to challenge the decision of the independent review Tribunal, which was specifically constituted to include both a Judge and also a medical expert.

The Tribunal was therefore, by its nature, a Tribunal which exercised an expert medical judgment. It was distinct, as such, from other Tribunals (e.g. an Employment Tribunal) which did not contain medical expertise and was not making expert medical decisions within their remit. MW anticipated that the NHSBSA might cite authorities relating to other types of Tribunal where the nexus of decision making was very different, where no expert medical assessment was part of the process, and where the underlying statutory framework was different. In those circumstances different considerations might apply than here and it would be an error of law to read across such authorities to an entirely different statutory context.

Here, the intention of statute was the Tribunal’s decision was final, absent that is, of course, a clear error of law.

MW referred the Upper Tribunal to his response to the NHSBSA’s complaints in this application for permission to appeal. The proposed appeal was not, in truth, about a genuine point of law, but was essentially a disagreement about the decision, falsely dressed up as an argument about lack of adequate reasons or perversity.

The proposed appeal was therefore misconceived, as a matter of law. The government legislated and assured Parliament that it would be bound by whatever decision was made by the Tribunal. The Upper Tribunal was bound to uphold the statute and dismiss this attempt to undermine the exclusive jurisdiction of the Tribunal to determine the matter. Mr Todd asserted on MW’s behalf that the Upper Tribunal would clearly err in law were it to entertain such an appeal, which was plainly prohibited by statute.

In any event, as was demonstrated in the response to the appeal, the Tribunal provided 13 pages of reasons for its decision. Any argument that the reasons were inadequate was therefore unjustified. It was not only the length of the reasons; in respect of each of the NHSBSA’s complaints, it was demonstrated that the Tribunal did indeed clearly give adequate reasons to each of the points and was plainly not perverse in its conclusions. It essentially agreed with the treating doctors and disagreed with the experts who had not clinically examined MW. It had to choose with whom they agreed and it gave adequate reasons for its conclusions.

NHSBSA relied on the authority of English v Emery Reimbold, but without acknowledging that that was a case in court proceedings, rather than Tribunal proceedings and nowhere had NHSBSA acknowledged that Tribunals prioritised practical and accessible explanations and were distinct from courts where more detailed reasoning might be required. MW contended that Vaccine Damage Tribunals were, by their statutory construct and statutory intention, very specific creatures where very considerable discretion was given and they were essentially acting as a jury. Parliament provided that their decisions would be final and the proposed appeal was an assault on statute which the Upper Tribunal must resist.

MW’s position was that Vaccine Damage Tribunals were, by statute, special creatures who had the final say and their decisions were not to be challenged.

MW referred to the Practice Direction of the Senior President of Tribunals dated 4 June 2024 on reasons for decisions. That Practice Direction applied to the giving of written reasons for decisions throughout the First-tier Tribunal, including here. It helpfully referenced the relevant law on which it was based. To be adequate they had to explain to the parties why they had won and lost. The 13 pages of reasons here plainly did that. The Practice Direction was to the effect that they should be appropriately concise and focused upon the principal controversial issues. That clearly showed that they should be as short as possible and did not need to cover every issue, only the main ones. They did not have to identify all the evidence relied on or to express every step of its reasoning. The reasons provided should be proportionate to the resources of the Tribunal and need only to refer to the main issues. Adequate reasons might often be short and in some cases a few succinct paragraphs would suffice. In this case 13 pages of reasons was in fact very considerable detail.

The Practice Direction stated that the Upper Tribunal would not readily assume that a Tribunal had misdirected itself merely because every step in its reasoning was not fully set out in its decision. A challenge about adequacy of reasons should only succeed when the appellate body could not understand the Tribunal’s thought process in making material findings.

Clearly in this case the Tribunal set out adequately set out its reasons so that the parties could understand the Tribunal’s thought process.

Meek v Birmingham District Council [1987] was a case about an Employment Tribunal – hence a jurisdiction quite distinct in nature from the Tribunal here. The Upper Tribunal needed to be careful not to read across from one jurisdiction to another without appreciating and allowing for the specialist nature of the Vaccine Damage Tribunal and the difference with an Employment Tribunal. However, in Meek Bingham LJ giving the lead judgment said that a decision of an Industrial Tribunal was not required to be an “elaborate formalistic product of refined legal draftmanship”. He also said he was in agreement with Donaldson LJ who in UCATT v Brain [1981] had cited that Industrial Tribunals reasons are “not intended to include a comprehensive and details analysis of the case either in terms of fact or in law … It would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon such analysis”. MW contended that that was exactly what the NHSBSA was engaging in here.

In R (on the application of H) v Ashworth Hospital Authority [2002] EWCA Civ 923, the Court of Appeal explicitly contrasted Tribunal reasons with those of the courts, holding that Tribunals are not required to produce lengthy decisions. Dyson LJ observed at [79] “It does not follow that tribunals are obliged to produce decisions which are as long as judgments by a judge often tend to be. Far from it. A brief judgment is no less likely to be adequately reasoned than a lengthy one.” MW criticised the proposed appeal for not acknowledging that there was a lower standard required of Tribunals than a court. The 13 pages of reasons here were adequate and it would put an unfair burden on the Tribunal judiciary were they to see their judgments overturned for lack of reasons where they had, as here, put very considerable efforts into spelling out the reasons for their decisions.

In Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49 the House of Lords reinforced deference to specialist tribunals, noting that their reasoning must be explained but should not be subjected to "unduly critical analysis." Baroness Hale stated (para 30): "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." That was an Immigration Tribunal, but here the Tribunal is even more specialist (also containing a medical member) and an extra margin should be added, and heed should be given to the statutory framework which provided that the government must accept the decisions of the independent Tribunal.

It was therefore submitted on behalf of MW that there was in truth no point of law here. The Tribunal’s decision was final as to causation, absent a clear error of law. The Tribunal did not have to provide extensive reasons for its decision. It did so fulsomely. The NHSBSA application amounted to an attack on the statutory framework of the compensation scheme and the Upper Tribunal was bound to resist it. The NHSBSA could see why it lost. It was clearly aggrieved about losing, but it would be contrary to statute to bend the rules in its favour.

MW therefore contended that the Upper Tribunal must refuse the application for permission to appeal, thereby ending the appeal.

The Tribunal remitted the matter to the NHSBSA to make a new decision on severity and directed that, if it should consider that the requisite level of disablement was not met, the matter should be referred back to the Tribunal comprising Judge Kneale and Dr Bennett to decide on the issue of severity.

The Tribunal directed in paragraph 6 of its decision notice that no further mandatory reversal process would be required and that a written request for a directions hearing would be sufficient.

MW proposed that the new decision on severity should be made within 14 days and that the Upper Tribunal should direct accordingly. It appeared from the NHSBSA’s later statements that severity would be conceded as an issue so it was hoped this matter could be finally concluded at an early time.

Mr Todd fundamentally disagreed with NHSBSA’s contention that the Upper Tribunal should reverse the decision on causation and remake the Tribunal’s decision on the basis that all the evidence was available and the Upper Tribunal was equally well-placed to make the appropriate findings. MW strongly disagreed. The bundle for the hearing did not contain all of the evidence. The Tribunal was a specialist Tribunal with a medical member. The Upper Tribunal, with respect, did not have the same expertise. It would not have heard the evidence to make the findings of fact. The Tribunal sat for 2 days hearing the evidence whereas the Upper Tribunal had at most half a day to deal with the appeal. The submission was patently a non-starter.

I should say at the outset that the submission made by MW as set out in paragraph 111 is misconceived. S.7B of the 1979 Act states (with emphasis added) that

“7B Finality of decisions

(1)

Subject to the provisions of this Act and article 4 of, and the Schedule to, the Regulatory Reform (Vaccine Damage Payments Act 1979) Order 2002 (modifications of this Act in relation to transitional claims), any decision made in accordance with the foregoing provisions of this Act shall be final.”

S.4 of the 1979 Act specifically confers jurisdiction on the First-tier Tribunal

“Appeals to appeal tribunals.

(1)

The claimant may appeal to the First-tier Tribunal against any decision of the Secretary of State under section 3 or 3A above.

…

(4)

In deciding an appeal under this section, the First-tier Tribunal shall consider all the circumstances of the case (including any not obtaining at the time when the decision appealed against was made)”.

Nor is there any ouster of the jurisdiction of the jurisdiction of the Upper Tribunal under s.11(2) of the 2007 Act. The legislative scheme is clearly that, subject to the provisions of the Act (including any appeal to the First-tier Tribunal and onwards to the Upper Tribunal on a point of law), any decision made in accordance with the foregoing provisions of the Act shall be final.

I do not therefore accept the proposition that the Upper Tribunal is bound to the application on the basis that it is an illegitimate attempt “to undermine the exclusive jurisdiction of the Tribunal to determine the matter”. Nor do I accept that the Upper Tribunal would clearly err in law were it to entertain such an appeal on the basis that it was plainly prohibited by statute.

Nor do I accept that it is open to MW to seek to rely on the statement of the Secretary of State during the passage through the House of Commons of the Bill which became the 1979 Act. By virtue of the decision of the House of Lords in Pepper (Inspector of Taxes) v Hart [1993] UKHL 3, [1993] AC 593, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. I do not, however, regard it as arguable that the language of the 1979 Act is either ambiguous or obscure or that the literal meaning of the language leads to an absurdity. The legislative intent of the Act is quite clear, as I have set out in paragraphs 127 to 130 above.

As to the adequacy of reasons which must be set out by a fact-finding Tribunal and the role of an appellate Tribunal in determining whether to grant permission to appeal (and allow an appeal) from such a fact-finding body, in truth I found very little (if anything) between the parties as to the applicable principles. The dispute in this case really lies in the application of these principles to the decision of the Tribunal in this case. It is nevertheless worth setting out the relevant principles at the outset of my analysis.

In the first place, it is important to understand the proper approach of an appellate tribunal such as the Upper Tribunal in determining whether to grant permission to appeal from a fact-finding tribunal. That has been explained by the Court of Appeal on numerous occasions, such as in Walter Lilly & Co Ltd v Clin [2021] 1 WLR 2753. In that case Carr LJ said (citations omitted)

“83.

Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include:

i)

The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed;

ii)

The trial is not a dress rehearsal. It is the first and last night of the show;

iii)

Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case;

iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping;

v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence);

vi)

Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.

…

85.

In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:

i)

Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;

ii)

Where the finding is infected by some identifiable error, such as a material error of law;

iii)

Where the finding lies outside the bounds within which reasonable disagreement is possible.

86.

An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.

87.

The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.”

Similarly, in Volpi v Volpi [2022] EWCA Civ 464 Lewison LJ said that

“2.

The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

i)

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)

An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv)

The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v)

An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi)

Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

3.

If authority for all these propositions is needed, it may be found in Piglowska v Piglowski[1999] 1 WLR 1360; McGraddie v McGraddie[2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd[2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd[2016] EWCA Civ 407; JSC BTA Bank v Ablyazov[2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd[2019] EWCA Civ 817, [2019] 3 All ER 429 and Perry v Raleys Solicitors[2019] UKSC 5, [2020] AC 352.

…

65.

This appeal demonstrates many features of appeals against findings of fact:

i)

It seeks to retry the case afresh.

ii)

It rests on a selection of evidence rather than the whole of the evidence that the judge heard (what I have elsewhere called "island hopping").

iii)

It seeks to persuade an appeal court to form its own evaluation of the reliability of witness evidence when that is the quintessential function of the trial judge who has seen and heard the witnesses.

iv)

It seeks to persuade the appeal court to reattribute weight to the different strands of evidence.

v)

It concentrates on particular verbal expressions that the judge used rather than engaging with the substance of his findings.

66.

I re-emphasise the point that it is not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence. Whether we would have reached the same conclusion as the judge is not the point; although I am far from saying that I would not have done. The question for us is whether the judge's finding that the money was a loan rather than a gift was rationally insupportable. In my judgment it was not. In my judgment the judge was entitled to reach the conclusion that he did. I would dismiss the appeal.”

It is also important in this context to remember what Upper Tribunal Judge Wikeley said in Basildon DC v. AM [2009] UKUT 113 (AAC)

“27.

There is ample authority in the case law about the standards of reasoning expected of fact-finding tribunals in explaining their decisions. There is, for example, a helpful and realistic discussion by Mr Commissioner (now Judge) Rowland in CIB/4497/1998 (at paragraph 5):

‘5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal's reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved … Those who assert that a tribunal's reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while "a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all", that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.’

28.

It is also well established that when explaining how it has exercised its judgment, a first instance tribunal is not bound to deal with every matter raised in the case. As Tucker L.J. explained in Redman v Redman [1948] 1 All E.R. 333 at 334:

‘I desire to emphasise as strongly as I can that the fact that judge or commissioner does not set out every one of the reasons which actuate him in coming to his decision will not be sufficient to support an argument in this court that he has not applied his mind to the relevant considerations … The mere fact that, in his judgment, the commissioner may not have mentioned some fact or other or that he emphasised some other fact is quite insufficient to persuade me that he did not, in fact, apply his mind properly to the relevant matters which he does not in terms mention.’

29.

Similarly, in a more recent decision in the matrimonial and family jurisdiction, Holman J. in B v B (Residence Order: Reasons for Decision) [1997] 2 F.L.R. 602 (at 606) stated that:

‘I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.’

30.

A tribunal’s Statement of Reasons is not usually an ex tempore (unreserved) judgment, but the observations of Holman J. are just as applicable to decisions of fact-finding tribunals as they are to decisions of courts of first instance.

31.

This tribunal made a clear and categorical credibility finding in favour of the claimant which in my judgment is unimpeachable and central to its decision. The credibility finding underpinned the tribunal’s conclusions on the nature of the relationship between the claimant and her landlord and its acceptance of her evidence about e.g. the rental agreement and the payment of rent. That amounted to “clear and overwhelming evidence” which was not undermined by the “unusual” features of the case. The tribunal evaluated the evidence and explained why those factors did not alter its conclusion.

32.

My conclusion therefore is that the tribunal’s decision discloses no error of law in this respect. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate reasoning.”

To that I add what Lord Hope said in Shamoon v. Chief Constable for the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337 at [59]:

“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”

In Meek v Birmingham CC Sir Thomas Bingham MR explained that

“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.

Nothing that I have just said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v. Brain [1981] I.C.R. 542, Lord Justice Donaldson (as he then was) said at page 551:

"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.

This, to my mind, is to misuse the purpose for which the reasons are given."”

Waller LJ said in H v East Sussex CC

“16.

The requirement to give reasons is concerned with fairness and as far as guiding principles are concerned I agree with what Wall LJ said in W v Leeds City Council and SENDIST [2006] ELR 617. After referring to four first instance decisions specifically relating to Special Educational Needs Tribunals and the giving of reasons, including Grigson J's decision in R(M) v Brighton and Hove City, he said at paragraph 53 to 54 as follows:-

"53.

I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs …”

[and then he cited Sir Thomas Bingham, in the extract which I have set out above].

17.

What emerges from the case law is that there are basics that need to be present, but these basics may require supplementation by greater analysis and explanation depending on the issues before the Tribunal and the extent to which the evidence is disputed.

18 To this, I would only add that the decision under scrutiny must be looked at as a whole. In the course of a complex decision, a Tribunal may be dealing with many hundreds of pages of written evidence and extensive oral evidence. It is not expected to deal with everything, but it must address the legal issues relevant to the decision and resolve the significant evidential disputes. The Tribunal may make legal errors along the way, but if these do not detract from the overall sense of the decision they should not result in a decision being set aside. The Upper Tribunal may treat the error as immaterial (so that there is no error (R (Iran) v Secretary of State for the Home Department [2005] EWCA 605 at [14] – [16]) or choose not to exercise its discretion to set aside under 12(2)(a) of the Tribunals Courts and Enforcement Act 2007.”

That some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged I see no reason to doubt, but in the context of the adequacy of a Tribunal’s reasoning, I see no basis to distinguish between the adequacy of reasons given by an industrial or Employment Tribunal on the one hand and a Vaccine Damage Tribunal on the other, contrary to MW’s suggestion in paragraph 118 above, any more than did Waller LJ in H to distinguish between Employment Tribunals and what are now SENDISTs.

One must also bear in mind the Senior President’s Practice Direction on Reasons for Decisions of 4 June 2024, which predates the decision in this case by some 10 months. It states that

“This Practice Direction states basic and important principles on the giving of written reasons for decisions in the First-tier Tribunal. It is of general application throughout the First-tier Tribunal. It relates to the whole range of substantive and procedural decision-making in the Tribunal, by both judges and non-legal members. Accordingly, it must always be read and applied having regard to the particular nature of the decision in question and the particular circumstances in which that decision is made.

2.

The procedure rules applying in the First-tier Tribunal specify circumstances in which the Tribunal must provide written reasons for its decision. Whilst many decisions are subject to an express requirement for written reasons to be given for them, some are not. In some circumstances written reasons are mandatory only upon request by a party. In every case the Tribunal must be alert to the type of decision it is making and to the relevant requirements of the rules on the giving of reasons, if any such requirements are engaged. It is important to recognise that the giving of reasons may be required in the interests of justice even if not mandated by the rules.

3.

In some cases or jurisdictions the Tribunal will be able to give its decision at, or soon after, the conclusion of a hearing by providing a notice of decision and/or by stating its reasons orally.

4.

Modern ways of working, facilitated by digital processes, will generally enable greater efficiencies in the work of the tribunals, including the logistics of decision making. Full use should be made of any tools and techniques that are available to assist in the swift production of decisions.

5.

Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost (Footnote: ¹). The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute (Footnote: ²). They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law (Footnote: ³). These fundamental principles apply to the tribunals as well as to the courts.

6.

Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved (Footnote: ⁴).

7.

Stating reasons at any greater length than is necessary in the particular case is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate court or tribunal (Footnote: ⁵), and is therefore inconsistent with the overriding objective. Providing concise reasons is to be encouraged. Adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice. For a procedural decision the reasons required will usually be shorter.

8.

Judges and members in the First-tier Tribunal should expect that the Upper Tribunal will approach its own decisions on appeal in accordance with the well settled principle that appellate tribunals exercise appropriate restraint when considering a challenge to a decision based on the adequacy of reasons (Footnote: ⁶). As the Court of Appeal has emphasised, a realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically (Footnote: ⁷).

9.

As an expert tribunal, the First-tier Tribunal will generally be taken to be aware of the relevant authorities within the jurisdiction being exercised, and to be applying those cases without the need to refer to them specifically, unless it is clear from the language of the decision that they have failed to do so (Footnote: ⁸). The Upper Tribunal will not readily assume that a tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision (Footnote: ⁹). Thus, a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings (Footnote: ¹⁰).

10.

This Practice Direction is made by the Senior President of Tribunals without the approval of the Lord Chancellor under section 23(6) of the Tribunals, Courts and Enforcement Act 2007, on the basis that it consists solely of guidance about the application or interpretation of the law, and the making of decisions by judges and members in the First-tier Tribunal.

Sir Keith Lindblom

Senior President of Tribunals

4 June 2024”

The Practice Direction is a distillation of principle; it is not saying anything new or revolutionary, but it is a direction which First-tier Tribunals should bear in mind when producing statements of reasons. It is to be noted, however, that the decision in English v Emery Reimbold is mentioned in first footnote and so is plainly relevant to Tribunal decision making, contrary to the suggestion from Mr Todd set out in paragraph 113 above.

For the sake of completeness I might add the remarks of the three-judge panel in Information Commissioner v Experian Limited [2024] UKUT 105 (AAC):

“63.

There are many appellate authorities on the adequacy of reasons in a judicial decision. In this chamber of the Upper Tribunal, the principles were summarised in, for example, Oxford Phoenix Innovation Ltd v Healthcare Regulatory Agency [2018] UKUT 192 (AAC) at [50-54]. At its most succinct, the duty to give reasons was encapsulated at [22] in Re F (Children) [2016] EWCA Civ 546 (one of the authorities cited there), as follows:

“Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable.”

64.

As is well-known, the authorities counsel judicial “restraint” when the reasons that a tribunal gives for its decision are being examined. In R (Jones) v FTT (Social Entitlement Chamber) [2013] UKSC 19 at [25] Lord Hope observed that the appellate court should not assume too readily that the tribunal below misdirected itself just because it had not fully set out every step in its reasoning. Similarly, “the concern of the court ought to be substance not semantics”: per Sir James Munby P in Re F (Children) at [23]. Lord Hope said this of an industrial tribunal’s reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [59]:

“ … It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”

65.

The reasons of the tribunal below must be considered as a whole. Furthermore, the appellate court should not limit itself to what is explicitly shown on the face of the decision; it should also have regard to that which is implicit in the decision. R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) was cited by Floyd LJ in UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] as explaining that the issues which a tribunal decides and the basis on which the tribunal reaches its decision may be set out directly or by inference.

66.

The following was said in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 (a classic authority on the adequacy of reasons), on the question of the context in which apparently inadequate reasons of a trial judge are to be read:

“26.

Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. … If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial. ….

118.

... There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision.”

Although the grounds of appeal as originally drafted intermingled the irrationality challenges with the adequacy of reasons challenges, in his oral submissions Mr Juckes took the irrationality challenges together and then took the adequacy of reasons challenges together. For the purposes of exposition, that is a better way of considering the grounds of challenge and I shall adopt the same method of exposition in this decision. His forensic emphasis was very much on the former challenges rather than the latter. I shall therefore consider Grounds 1, 3 and 5 and then Grounds 2, 4 and 6 rather than taking the grounds in numerical sequence.

At the outset of this section it is worth making certain general observations. To succeed on a perversity challenge, as Mummery LJ stated in Connex SE Ltd v Bangs [2005] ICR 763 (with emphasis added):

“The tribunal's findings of fact, including findings on the credibility of witnesses, can only be challenged on appeal if it is established that no reasonable tribunal could have made the findings in question. A perverse decision is erroneous in law. It must be shown by the appellant that material findings of fact by the tribunal are perverse because, for instance, they are unsupported by any evidence, or they are contrary to uncontradicted evidence or they are plainly wrong for some other reason.”

That is undoubtedly a high bar, as the cases cited by Mr Juckes make clear.

Secondly, it turned out, in answer to a question by me, that Loveday, on which Mr Juckes sought to rely, had not been cited to the Tribunal. It is difficult to see that there can be any criticism of the Tribunal for not dealing with an authority which was not cited to it.

Thirdly, I did not find the first citation from Loveday on which Mr Juckes sought to rely to be a particularly helpful one in the context of this decision. Counsel was seeking to draw a distinction between “scientific proof” and “clinical proof”, but the judge rejected the distinction on the basis that there was no generally accepted standard of scientific proof, nor was it clear who had to be satisfied to such a standard and the term “clinical proof” was ambiguous and could mean different things. The short point was that the question of proof was a question for the Court and the only significance of the topic was that, when considering a witness’s assertion that he was or was not satisfied of a certain fact, the Court must bear in mind that he might be applying too low or too high a standard of proof.

In this case, it is common ground that the standard of proof as to causation was that of the balance of probabilities. Mr Juckes sought to argue that it was not clear what standard of proof the treating clinicians were using when they diagnosed MW, but that submission did not impress me during the hearing nor does it impress me now. Nor was it suggested to me that in reality the treating clinicians had used any other standard of proof than the balance of probabilities. The question is one for the Court or Tribunal and the finding of the Tribunal was that it was satisfied on the balance of probabilities as to the causative link between the vaccine and the conditions from which MW subsequently suffered.

Fourthly, the second citation from Loveday is undoubtedly right in that the mere expression of opinion or belief by a witness, however eminent, without more that the vaccine can or cannot cause brain damage, does not suffice. The Court or Tribunal has to evaluate the witness and the soundness of his opinion, examining the reasons given for his opinions and the extent to which they are supported by the evidence. The Judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence, but the weighing of such evidence is again undoubtedly a matter for the fact-finding Tribunal.

It seems to me that Grounds 1 (that the finding that MW had suffered from MIS-A was irrational) and 3 (that the finding that his MIS-A and/or myopericarditis was caused by the vaccination was irrational) should be taken together since they are very closely allied.

In running the first and third grounds of appeal, Mr Juckes had to essay a difficult forensic pirouette, as Mr Todd noted, in that in paragraph 67 of the original medical assessment by the NHSBSA which was sent to MW in October 2022, the assessor had determined

“Therefore, having considered the available medical, epidemiological and temporal evidence, it is the opinion of the Medical Assessor that, on the balance of probability the Astra Zeneca Covid 19 vaccine did cause the development of a Multi-system inflammatory disorder/syndrome in the Claimant. This is a more plausible explanation than a spontaneous development of such a rare condition, and as such there is no biologically plausible alternative explanation to the Assessor”.

So the NHSBSA was now suggesting that the conclusion it itself had also reached originally was one to which no reasonable person could have come. Given that it came to that very conclusion originally, MW submitted that the argument was baseless.

Mr Juckes submitted that the Tribunal appeared to have based its conclusion that MW had MIS-A on the conclusions of the treating clinicians, as the Tribunal found in paragraph 64(e), although in fact the findings went beyond sub-paragraph (e) alone:

“e)

Those treating MW were satisfied that the criteria for MIS-A were satisfied. The diagnosis is repeated several times in different documents. The Tribunal finds that such a diagnosis would not have been made if only the heart had been involved.

f)

Myopericarditis was also diagnosed whilst MW was in hospital.

g)

Post discharge, MW was diagnosed with seronegative inflammatory arthritis and fibromyalgia.

h)

The medical professionals who continue to treat MW maintain that his ongoing medical conditions were caused by a severe reaction to the AZ vaccine.”

However, the Tribunal did not reach its conclusion on the basis of the evidence of the treating clinicians alone. It also relied on the very close temporal association with the vaccine, the absence of any relevant history, the absence of any positive test for any specific infection and the fact that the cause of MIS-A from the vaccine was the most likely explanation in the absence of any other contemporaneous precipitating factor.

It is not correct that the Tribunal’s findings as to whether MW was suffering from MIS-A and whether the MIS-A was caused by the vaccination were reached on the basis of no evidence. On the contrary there was evidence to that effect, both as to whether he was suffering from MIS-A and whether the MIS-A was caused by the vaccination:

On 22 April 2021 a microbiologist reviewed MW’s case and a working diagnosis of myopericarditis was noted. He stated that such cases were usually viral, but he was slightly concerned that some features suggested an alternative aetiology. He discussed with a cardiologist whether that could be MIS-A caused by the vaccine [1982]. An email exchange to that effect was recorded; two cardiologists considered that the CRP was high for pericarditis and considered that “post-vaccine MIS” was a possibility [2039].

On 26 April 2021 a cardiologist wrote that the diagnosis was “viral myopericarditis vs MIS response to COVID-19 vaccine” [1987].

On 28 April 2021 a consultant rheumatologist wrote that he agreed that the diagnosis looked like MIS in response to the AZ vaccine [2000].

On 4 May 2021 there was a discussion with an immunologist who considered that MW was suffering from either HLH (Hemophagocytic lymphohistiocytosis) or MIS [2016]. Most markers for HLH were absent and this was less likely. However, MIS was very rare and he suggested discussion with an inflammatory disease specialist if there was any diagnostic dilemma.

The discharge summary on 7 May 2021 confirmed that MW’s symptoms resolved prior to discharge. His inflammatory markers had declined. The summary also stated that he was treated as a case of MIS-A probably triggered by COVID vaccine [1966].

On 5 October 2022 MW was reviewed by a cardiologist who recorded that his symptoms “on receiving the AZ vaccine” had settled. He had a flare-up of his rheumatoid arthritis [1766].

MW saw a neurosurgeon on 24 May 2024 who noted “M had quite a bad immune reaction to a COVID vaccine that as a result had to spend a long time in ITU and now has severe respiratory problems and severe myocarditis” [1821].

The evidence did not, of course, solely point one way and the Tribunal therefore recorded at [64] that

“d)

Those treating MW during his hospital admission made various diagnoses. The Tribunal found that MW’s presentation was so unusual that there were several different diagnoses made.”

The weighing of that evidence was very much for the fact-finding Tribunal. I do not therefore accept that the Tribunal did not have a sufficient basis for adopting the treating clinicians’ view or that it was unsafe to rely on them.

As to the submission that Professor Conlon had set out the Brighton Collaboration criteria and employed that as a clear yardstick against which MW’s case could be measured, with the implication that no-one else had, it is also the case that Dr Craig in her second report, after she had seen his first report and having seen the medical records, considered (as recorded at [53]) that MW did meet the Brighton Collaboration criteria for MIS-A:

“51.

Dr Craig responds to the report of Professor Conlon [2232]. She disagrees with his finding that the MIS-A criteria were not met and refers to specific pages in the GP records/medical notes to support her view that both vasculitis and MIS-A were diagnosed and are referred to in the medical records. The page references cited by Dr Craig accord with the Tribunal’s bundle and will not be repeated here.

52.

Dr Craig points to evidence in the medical records that, at the time of discharge from hospital, some inflammatory markers were still raised and respiratory issues were continuing [2233]. Dr Craig gives the example of the letter on [1041] following a hospital attendance in November 2021.

53.

Dr Craig maintains that MW met the Brighton Collaboration criteria for MIS-A [2234-2236]. She further comments that the fact that an adverse event is rare (100-1000 per million) or very rare (less than 100 per million) does not rule out the vaccine as a cause. The example given is that Guillaine-Barre Syndrome is accepted to be a very rare potential consequence of the flu vaccine (1-2 per million doses).

54.

Dr Craig provides an explanation for the timeline for the onset of symptoms following vaccination as opposed to following Covid-19 infection [2236]. The explanation is that the vaccine enters the body in a different way to an infection/virus, which, Dr Craig states, only rarely becomes systemic. All of MW’s COVID tests were negative.”

Again therefore this is not a case where the Tribunal made findings or reached conclusions which were unsupported by any evidence or which were contrary to uncontradicted evidence. The weighing of that evidence was again very much for the fact-finding Tribunal.

Moreover, as Mr Todd submitted in his original written submissions, Professor Conlon’s opinion that MW’s GP and treating hospital doctors were wrong about the diagnosis was quite a bold one, bearing in mind that he had not had a chance to examine or speak to MW or carry out any tests or investigations on him. MW had spent more than a month in hospital, including several days in intensive care followed by intensive cardiac monitoring.

As to Ground 5, I accept that the evidence from the medical records about arthritis was more equivocal than that for MIS-A for the reasons submitted by Mr Juckes as set out in paragraphs 90-95 above, which I do not need to repeat.

However, that evidence had been considered and evaluated by the Tribunal. One the one hand it had found that

“k)

Prior to the vaccination, MW was a fit and healthy 52 year old man. He had a very physical job, working long hours, as an HGV driver and a physically active family life, cycling and walking regularly”

and

“m)

Prior to the vaccination, MW was not signed off sick, he was not on medication and had not been referred to any specialists”,

but on the other it also found that

“l)

MW had a history of joint pain and operations on his knees. The diagnoses, symptoms and treatment were all consistent with wear and tear osteoarthritis. His GP referred him for blood tests to rule out any inflammatory conditions, such as rheumatoid arthritis, approximately 12 months prior to the vaccination. Those tests were negative and no specialist referrals made.”

It is not therefore correct to assert that the Tribunal did not address the possibility that MW was already suffering from an encroaching joint pain condition.

To paraphrase Lewison LJ, an appellate tribunal should not interfere with a fact-finding tribunal’s conclusions on primary facts unless it is satisfied that it was plainly wrong. The adverb "plainly" does not refer to the degree of confidence felt by that appellate tribunal that it would not have reached the same conclusion as the fact-finding tribunal. It does not matter, with whatever degree of certainty, that the appellate tribunal considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable fact-finding tribunal could have reached.

Perversity challenges (i.e. ones based on a finding of fact by the first-instance tribunal being perverse or one which no reasonable tribunal could have reached on the evidence before it) must bear in mind the expertise of that first-instance tribunal: as was said by Lloyd Jones LJ (as he then was) in Department for Work and Pensions v Information Commissioner & Zola [2016] EWCA Civ 758 at [34]:

“The approach to be followed in perversity challenges to decisions of specialist Tribunals … is simply a reflection of the respect which is naturally paid to the decisions of a specialist Tribunal in an area where it possesses a particular expertise. Given such expertise in a Tribunal, it is entirely understandable that a reviewing court or Tribunal will be slow to interfere with its findings and evaluation of facts in areas where that expertise has a bearing. This may be regarded not so much as requiring that a different, enhanced standard must be met as an acknowledgement of the reality that an expert Tribunal can normally be expected to apply its expertise in the course of its analysis of facts ...”

Bearing in mind the expertise of the Tribunal, I am not persuaded that its findings and evaluation of facts was such that no reasonable tribunal could have reached the conclusions which it did. I am therefore satisfied that the various irrationality challenges are not made out on the facts of this case.

Although I am satisfied that Grounds 1, 3 and 5 were properly arguable and that permission to appeal should be granted in respect of them, I dismiss the appeal on those grounds.

I therefore turn to the three challenges as to the adequacy of the Tribunal’s reason for reaching its conclusions, Grounds 2 (failure to supply adequate reasons for rejection of Professor Conlon’s view on MW’s diagnosis), 4 (failure to supply adequate reasons for rejection of his view on causation) and 6 (failure to supply adequate reasons as to its conclusion that the vaccine had caused the arthritic condition).

Although the three challenges are different, in my judgment they can be considered together. Either the conclusions for all three of those matters are adequately reasoned or they are not. They stand or fall together. In considering the adequacy of the reasoning I have considered the sections entitled “Findings of Fact” and “Analysis and Conclusion” together, although I am not sure that dividing up the decision in that way makes for clarity. The findings of fact are in reality part of the analysis.

In my judgment, and adopting the analysis of Bingham LJ in Meek, the decision of a Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost.

In this case the Tribunal provide far more of “an outline” of the story which gave rise to the complaint. On the contrary, it set out the history of the matter in some considerable detail over 11 pages. I can see no basis for criticism of the Tribunal in relation to the first 63 paragraphs of its judgment.

In paragraph 64 it set out a summary of its basic factual conclusions and in the remainder of the decision it explained the reasons which led it to the conclusion which it reached on those basic facts. It considered the evidence of the treating medical professionals at the time of the original hospital admission and subsequently, the expert evidence, the temporal association with the vaccine, any other plausible association given the temporal association, the presence or absence of any relevant history and the presence or absence of a positive test for any specific infection, as well as the rarity of any adverse reaction to the vaccine. None of those factors was in itself decisive, but having weighed them all the Tribunal concluded that

“65.

The Tribunal finds, on the balance of probabilities, having had regard to all the evidence, both written and oral, that the AZ covid vaccination caused the MIS-A and the myopericarditis that MW was diagnosed with whilst in hospital and caused the ongoing complications that followed.”

It clearly gave significant weight to one of the most striking features of the case, the very close temporal association of the symptoms to the vaccine. It found that the most likely explanation was that the vaccination caused the MIS-A and the myopericarditis with which MW was diagnosed when he was in hospital in the absence of any other contemporaneous precipitating factor.

The treating professionals had, unlike the experts, had been able to observe and examine MW at the relevant time, assess his symptoms and their causes and to make the appropriate diagnoses.

I do not therefore find that the Tribunal’s conclusion was inadequately reasoned when it concluded, in the contest of the decision as a whole, that

“70.

The absence of an official study establishing that the AZ vaccination could cause MIS-A and Myopericarditis does not mean that it did not cause those conditions in MW. The Tribunal could find no other plausible explanation given the temporal association, the absence of any relevant history (tests for an inflammatory condition a year prior to the vaccine having been negative and treatment for joint pain being entirely consistent with osteoarthritis which is not an inflammatory condition) and there being no evidence of a positive test for any specific infection.”

The tribunal jurisdiction is not, to paraphrase the late Sir James Munby, some legal Alsatia in which the rules as to judgment writing do not apply (see Richardson v Richardson [2011] EWCA Civ 79, [2011] 2 FLR 244 at [53]). The rules apply there as much as elsewhere.

But in applying those rules one must have regard to the context, and the relevant context here is that, on the highest authority, the Tribunal’s reasoning ought to be explained, but the circumstances in which a Tribunal works should be respected and its reasoning ought not to be subjected to an unduly critical analysis (see Shamoon at [59]). The Tribunal should not be required on a vaccine damage payment claim to essay the complexity of a judgment like that in Loveday or replicate a judgment after a contested medical negligence claim in the King’s Bench Division or anything approaching it. It would indeed be a thousand pities if such reasons began to be subjected to an overly detailed analysis and appeals were to be brought based upon any such analysis.

Moreover, an appellate tribunal must exercise appropriate restraint when considering a challenge to a decision based on adequacy of reasons. A realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically (see paragraph 8 of the Practice Direction).

It is true that providing concise reasons is to be encouraged. Adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice (see paragraph 7 of the Practice Direction). That said, frankly the reasoning in this decision is thin. Frankly, if I had been writing the decision, I would have set out the findings of fact and the analysis in somewhat more detail. I would not have written paragraph 64(n). But that is not the test of adequacy. A challenge based on adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings (see the Practice Direction at [9]). Having considered the decision as a whole, I am satisfied that I can understand the Tribunal’s thought process in making the material findings which it did. Whether I myself would have devoted somewhat more exegesis to the evidence and the analysis is not the test. Nor is whether I myself would have reached the same decision. The challenge as to the adequacy of reasons must therefore fail.

The task of the appellate tribunal is to review the judgment in the context of the material evidence and submissions at the trial, in order to determine whether it is apparent why the Tribunal below reached the decision which it did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed (see English v Emery Reimbold at [26]). That is what I have done here.

I am therefore satisfied that Grounds 2, 4 and 6 were properly arguable and that permission to appeal should be granted in respect of them. Although I grant permission to appeal in respect of them, the appeal is nevertheless dismissed on those grounds.

Mr Juckes accepted that Grounds 7 and 8 were very much makeweights and he did not put much emphasis on them, rightly in my judgment.

Ground 7 was that the Tribunal failed to distinguish between inflammatory and rheumatoid arthritis. MW’s case was that he had been diagnosed with both rheumatoid and inflammatory arthritis [59]. The rheumatology clinic in April 2022 referred to “mild early inflammatory arthritis” only [1742], but the Tribunal did not distinguish between the two conditions in the Decision Notice. That was said to pose significant problems at the next stage of assessment. A medical assessor would be required to assess disablement for the purposes of s.1(4) of the 1979 Act. The assessor would be entitled to take into account any disablement caused by a disease or condition contracted other than via the vaccine, but could not do so where it was not clear whether he should assess the inflammatory and rheumatoid arthritis as being one condition or whether the Tribunal found causation as regards inflammatory arthritis alone.

In my judgment the criticism of the Tribunal is unfounded, although the evidence before it was ambiguous and was itself capable of more than one interpretation. It is correct that in his personal statement MW’s case was that he had been diagnosed with both rheumatoid and inflammatory arthritis [59], but that is a personal statement of someone neither legally nor medically qualified. On 12 April 2022 the consultant rheumatologist referred to “mild early inflammatory arthritis” [1742], whereas on 5 October 2022 the consultant cardiologist referred to “his rheumatoid arthritis flared up”. On 9 June 2023 his GP referred to the fact that “He also developed multisite inflammatory (Rheumatoid) arthritis and this is one of the main reasons he cannot work”.

Inflammatory arthritis is not a single disease by itself. It is an umbrella term which describes a group of conditions in which the joints become inflamed due to an overactive immune response. Rheumatoid arthritis is a type of inflammatory arthritis which primarily affects joints in the hands, wrists and feet.

In paragraph 3 of the Decision Notice the Tribunal refers to inflammatory arthritis. In the chronology in paragraph 12 it refers to rheumatoid arthritis in April 2022, although the consultant rheumatologist referred to inflammatory arthritis. In paragraph 20 of the Statement of Reasons it found that the NHSBSA appeared to accept the diagnosis of rheumatoid arthritis in its second assessment and in paragraph 44 it also noted Professor Conlon’s opinion that he agreed with the diagnosis of rheumatoid arthritis. However, in paragraph 64(g) it referred again to inflammatory arthritis and in paragraph 64(l) to being referred for tests to rule out conditions such as rheumatoid arthritis.

The Statement of Reasons is thus not entirely clear on that point, but neither was the evidence on which it was based. The position is not satisfactory, but on balance I consider that what the Tribunal was saying was that that it considered that MW’s form of inflammatory arthritis, which was rheumatoid arthritis, was a condition with which he had been diagnosed (and which had probably been caused by the vaccination). In any event, I do not consider that any error in that respect (if error it was) was material to the overall decision of the Tribunal. I do not give permission to appeal on that ground.

Ground 8 was that the Tribunal’s reliance on previous awards by the VDPS in [72] was unreasonable and/or irrational. The Tribunal could not know the evidence before the assessors in those cases, nor the state of knowledge of vaccine sequelae when the awards were made. Awards in previous matters did not set precedents. The fact of other awards should not have formed part of the Tribunal’s decision. The Tribunal did not explain how awards for a variety of other causes were relevant for a claim for MIS-A and inflammatory arthritis and it was the NHSBSA’s case that they were not relevant.

There is nothing in this point. The Tribunal merely seems to have noted as a factual matter that a finding had been made in other cases that the vaccine was capable of causing, and did cause, the conditions listed. That was not irrational or perverse. It was not saying that the findings in other cases were determinative of this case. Moreover, it specifically (and correctly) directed itself that

“71.

The Tribunal was concerned only with whether the AZ vaccine had, on the balance of probabilities, caused the medical conditions claimed by MW, not whether they might have occurred in anyone else.”

In any event, again I do not consider that any error in that respect (if error it was) was material to the overall decision of the Tribunal. With the excision of the first sentence of paragraph 72, the Tribunal’s analysis and conclusion would still have been the same. I do not give permission to appeal on that ground.

Although I am satisfied that Grounds 1, 3 and 5 were properly arguable and that permission to appeal should be granted in respect of them, I dismiss the appeal on those grounds.

I am also satisfied that Grounds 2, 4 and 6 were properly arguable and that permission to appeal should be granted in respect of them, but again I dismiss the appeal on those grounds.

I do not grant permission to appeal on Grounds 7 and 8.

For these reasons, and notwithstanding Mr Juckes’ polished and concise advocacy, the appeal is dismissed.

The matter is now remitted to the NHSBSA for a new decision to be made on disablement. Mr Todd submitted that the new decision on severity should be made within 14 days and that the Upper Tribunal should direct accordingly. I do not consider that it is appropriate to seek to micromanage a particular case in that way, particularly without knowing which other cases the NHSBSA currently has to consider or the resources which it has to consider them, but I am bound to say that I expect that the decision should be made promptly in view of the length of time since MW was originally vaccinated, now almost 5 years ago.