The Information Commissioner v Gary Spiers

I address first Judge Wikeley’s logically anterior point about whether Dr Spiers’s application for the First-tier Tribunal to certify an offence of contempt to the Upper Tribunal under rule 7A of the GRC Rules was just a further stage in the proceedings that had led the First-tier Tribunal to substitute a Decision Notice in its decision of 3 November 2020. I am persuaded by the Information Commissioner’s argument that Dr Spiers’s contempt application to the First-tier Tribunal under rule 7A was a separate set of proceedings. The answer to this question is obviously an issue of legal substance and does not turn on the administrative act of the First-tier Tribunal giving the rule 7A application a different case reference number to the case reference for the appeal from which it arises.

In raising this possible argument Judge Wikeley drew attention to the wording in section 61(3) of FOIA and its reference to a person doing or failing to do something in relation to “appeal” proceedings before the First-tier Tribunal. That wording and the similar wording in rule 7A(3)(a) of “the proceedings giving rise to the application” can only refer to the original proceedings before the First-tier Tribunal that led to the substituted Decision Notice. This wording may therefore, it was suggested, tie the contempt application into, and as part of, the same proceedings as those original appeal proceedings. Judge Wikeley also referred to the case of Razzaq v Charity Commission for England and Wales [2016] UKUT 546 (TCC) and suggested it may arguably sit inconsistently with the rule 7A application by Dr Spiers being viewed as a new set of proceedings.

I am not persuaded that the wording of section 61(3) of FOIA or rule 7A(3)(a) of the GRC Rules provides any necessary support for a rule 7A application being part of the same appeal proceedings. The wording of those statutory provisions, in my judgement, reads just as easily as simply describing the set of proceedings in which there has been an alleged act of commission or omission which forms the basis of certification application under rule 7A, and is neutral about whether that application is a step in the same (appeal) proceedings.

Nor do I consider that Razzaq provides any material support for the rule 7A contempt application necessarily being part of the same proceedings. As will be apparent from what I say further below, whether the rule 7A application is part of the earlier appeal proceedings to which it relates depends on construing rule 7A in the context of the GRC Rules in which it sits. Razzaq was not a rule 7A case and so does not assist with the issue of statutory construction I am required to confront in relation to the first issue on this appeal. The issue in Razzaq was whether people who had not been parties to the appeal proceedings before the First-tier Tribunal could be joined to the appeal proceedings under rule 9 of the GRC Rules after the appeal had been dismissed, for the purpose of them seeking permission from the First-tier Tribunal to appeal its decision. The Upper Tribunal decided in Razzaq that rule 9 of the GRC Rules did enable the First-tier Tribunal to join a person as a party to the proceedings after the appeal to the First-tier Tribunal had been dismissed but where permission to appeal could be sought from the First-tier Tribunal. Little or nothing in Razzaq deals on a reasoned basis with whether the appeal proceedings were separate from, or the same as, the application to seek permission to appeal from the First-tier Tribunal against its decision on the appeal. If anything, paragraph [12] in Razzaq – with its language of the First-tier Tribunal retaining jurisdiction to consider a joinder application following “the conclusion of the substantive proceedings” (my underlining) might support an argument that the two stages the Upper Tribunal was addressing in Razzaq were considered to be separate proceedings. A more direct and thus stronger Upper Tribunal authority that the permission to appeal stage before the First-tier-Tribunal is a separate set of proceedings from the appeal proceedings before that tribunal is SL v SSWP and KL-D [2014] UKUT 128 (AAC) (at paragraph [21]).

As a matter of general starting point, and shorn of any consideration of the GRC Rules, the word “proceedings” can be used without any particular precision (see, for example, Quazi v Quazi [1979] 3 All ER 424 at 429f). It can be used to refer to the court action as a whole or the “day to day steps in the action”: Smalley v Robey and Company [1962] 1 QB 577 at 581. So the word ‘proceedings’ on its own does not assist in answering whether Dr Spiers’s rule 7A contempt application to the First-tier Tribunal was a separate set of proceedings from the appeal proceedings. In those circumstances, it is necessary to answer the question arising under this first issue by construing the word ‘proceedings’ in the context of rule 7A of the GRC Rules and those rules more generally, as the court did in respect of the rules in issue before it in Smalley. So construed, I am satisfied that a contempt application under rule 7A constitutes separate ‘proceedings’ from the appeal proceedings to which it relates. Three inter-related considerations are relevant here.

First, by the time of the rule 7A contempt application the First-tier Tribunal will already have made a decision, per rule 38(2) of the GRC Rules, “finally disposing of all the issues in the [appeal] proceedings”, under sections 57 and 58 of FOIA.

Second, perhaps most crucially, but also emphasising the first consideration, rule 7A(6) of the GRC Rules expressly provides that “[a] decision disposing of the [rule 7A] application will be treated by the Tribunal as a decision which finally disposes of all issues in the proceedings comprising the certification case and rule 38 (decisions) will apply” (both forms of emphasis are mine). Bearing in mind the definition of “certification case” in rule 1(3) of the GRC Rules, this wording makes plain, in my judgement, that the rule 7A contempt proceedings (i.e. the ‘certification case’) comprise a separate set of proceeding. The rule 7A application is the proceedings comprising the certification case. Thus, read together, rules 7A and 38 draw a clear distinction between the appeal proceedings and the certification for contempt proceedings.

Third, a consideration of who is or was a “party” under rule 1(3) of the GRC Rules shows the Information Commissioner was not a “respondent” to the rule 7A contempt application at the point that application was made. He therefore could only have been made a respondent to that application under rule 9 of the GRC Rules. This is for two reasons. First, because although the Information Commissioner was a “party” to the appeal proceedings, those proceedings had concluded as the First-tier Tribunal had, per rule 1(3) of the GRC Rules, “finally disposed of all the issues in the [appeal] proceedings”. Taken on its own I recognise that this provision may simply be said to beg the very question in issue: namely, what is constituted in the proceedings and have all the issues in the proceedings been finally disposed of (and those issues may be said to include compliance with the substituted Decision Notice). However, and given that may be said to be so, the definition of “respondent” in rule 1(3) of the GRC Rules points strongly in favour of the rule 7A contempt application being separate proceedings. Ignoring a person or body that is added as a respondent under rule 9 (as the argument at this stage is concerned with whether there is any scope for doing so if the Information Commissioner is already a party to the proceedings), the first definition of “respondent” in rule 1(3) does not apply to the Information Commissioner because Dr Spiers’s rule 7A contempt application was not an appeal or challenge by him against any decision (or direction or order) made by the Information Commissioner. Nor, however, does the second definition of “respondent” in rule 1(3) apply to the Information Commissioner because, at least on the facts of this case, the rule 7A contempt application was not being brought by Dr Spiers against the Information Commissioner. Therefore, nothing in the definition of “respondent” in rule 1(3) of the GRC Rules shows the Information Commissioner to be a respondent to Dr Spiers’s rule 7A contempt application.

The First-tier Tribunal was therefore correct in considering that the Information Commissioner was not a party to the rule 7A certification for contempt application brought by Dr Spiers and needed to be joined to those proceedings to be made a party. It was wrong in law, however, in my judgement, to join the Information Commissioner to those proceedings where the Information Commissioner had not asked, or consented, to be joined to the proceedings and where his interests or rights were not affected by the proceedings. And that is the case even though the decision or ruling under challenge on this appeal was a case management decision. In such circumstances, such a decision should generally only be set aside if it is “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree” (per Global Torch Limited v Apex Global Management Limited (No2) [2014] 1 WLR 4495 at paragraph [13] and see also Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 at 454) or it is quite clear that the judge misdirected herself in law (AH and others (Sudan) v SSHD [2007] UKHL 49; 2008] 1 A. C. 67 at the para; [30]). I am satisfied on either basis that the decision to join the Information Commissioner to Dr Spiers’s rule 7A contempt application against Garstang was plainly wrong in law.

There are four decisions of the Upper Tribunal which have addressed the circumstances in which a person or body may be joined to proceedings in which they are not a party.

In ML v Tonbridge Grammar School [2012] UKUT 283 (AAC) Upper Tribunal Judge Rowland stated, at paragraph [21], that the equivalent of rule 9(1) of the GRC Rules:

“gives the First-tier Tribunal a very broad power to add persons or bodies as respondents to proceedings, although a person or body should not, in my judgment, be added as a respondent without their consent unless the law requires it”.

In the later decision of CM v HMRC [2014] UKUT 272 (AAC) Upper Tribunal Judge Mark commented on what Judge Rowland had said in paragraph 12 of ML as follows:

“11.

I do not take that as meaning that there must be some express provision of law that demands that they be added. There is nothing in the rules to that effect. It is sufficient that the addition of a respondent is reasonably required to deal with the case fairly and justly, which in this case includes taking into account the position of HMRC and the need for a single composite decision. The overriding objective to deal with cases fairly and justly must be given effect to by the tribunal when it exercises any power under the 2008 Rules (see rule 2(3)(a)), and this includes when exercising its discretion under rule 9(2). In many cases, such as that being dealt with by Judge Rowland, where it may be helpful to add another respondent, it may still be possible to deal with a case fairly and justly without doing so, and in those cases I would accept that the consent of the respondent should be obtained before being added.”

In the earlier decision of Roger Bell v Information Commissioner and Ministry of Justice [2012] UKUT 433 (AAC), Upper Tribunal Judge Jacobs said the following about whether Mr Bell ought to have been joined as a party to the Ministry of Justice’s appeal to the First-tier Tribunal against a Decision Notice of the Information Commissioner that had, in part, been in Mr Bell’s favour. (Mr Bell had also brought his own appeal against the Decision Notice because he considered it did not go far enough. His appeal, however, had been struck out on jurisdictional grounds. The ‘potential error of law’ discussed by Judge Jacobs below was not a material error of law because, as Judge Jacobs found, Mr Bell had lost interest in receiving the information he had requested):

“19…….In this case, the First-tier Tribunal appears to have overlooked that Mr Bell had an interest in preserving the Commissioner’s decision in his favour, not least because the MoJ had also lodged an appeal. I regard that as sufficient to justify Mr Bell being involved in some way when the Commissioner’s decision favourable to him was the subject of an appeal. It troubles me that the judge showed no concern for the potential prejudice caused to Mr Bell by striking out his appeal without at least offering him the chance to become a party to the MoJ’s appeal. I regard that as a potential error of law.

20.

I accept, as counsel pointed out, that Mr Bell did not ever say that he wished to preserve the favourable decision that he had received from the Commissioner or ask to be made a party. However, those who represent themselves, however intelligent they may be, regularly fail to understand what may be in their own best interests. It is part of the role of the tribunal, embodied in the overriding objective in rule 2, to protect them. At least, that requires the tribunal to ensure that the decisions they make are properly informed. In some cases, it may require the tribunal to act contrary to the person’s wishes. What is required depends on the circumstances of the case.” (my underlining added for emphasis)

I agree with Judge Mark in CM that the decision in ML should not be read as laying down a rule that a person can only be joined to proceedings without their consent if some specific piece of law requires them to be joined. That is not, for example the approach taken in Bell.

But what is then said in CM must be understood in the context of the case before Judge Mark. It was concerned with competing claims for child tax credit, in relation to a legal test of which parent had the responsibility for the child, where no decision that could bind both parents was made by HMRC. It was in that context that Judge Mark spoke in CM about the “need for a single composite decision” and the possibility of the First-tier Tribunal of the Social Entitlement Chamber, in seeking to meet that need, joining the second parent to an appeal brought by the first parent against an HMRC decision that that first parent did not have responsibility for the child. That would include joining the second parent even if he or she did not consent, as was contemplated in Bell. See to similar effect (on joinder) GC v HMRC (CHB) [2018] UKUT 223 (AAC).

Although the language in CM of “the addition of a respondent is reasonably required to deal with the case fairly and justly” (mirroring the language of the “overriding objective” in rule 2(1) of the GRC Rules) appears broad, in my judgement what all the above cases demonstrate, and the principle which underlies all of them, is that requiring a person or body to be joined to proceedings without their consent ought only to arise where their interests or rights may be affected by the decision in issue. That was the reason for the local authorities being made respondents in the First-tier Tribunal proceedings in the ML case. It was also why it was considered the First-tier Tribunal had erred in law (although not materially) in Bell, because it had failed to recognise that Mr Bell had an interest in having the Information Commissioner’s Decision Notice being upheld. The parent who was not the appellant in the CM case may not have had an immediate or direct interest in a formal legal sense in the other parent’s appeal, but their rights may well have been affected had the other parent’s appeal succeeded as it would probably have led to HMRC removing the non-appellant parent’s award of child tax credit.

The principle I have drawn from the above Upper Tribunal decisions is consistent with, and supported by, the Court of Appeal’s decision in Re Pablo Star Ltd [2017] EWCA Civ 1768; [2018] 1 WLR 738. The Court of Appeal’s decided, in paragraph [60], that:

“In considering whether or not it is desirable to add a new party pursuant to CPR r 19.2(2) two lodestars are the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case and the overriding objective in CPR Pt 1.” (my underlining added for emphasis)

Although the Court of Appeal in Pablo Star was dealing with the Civil Procedure Rules governing civil proceedings in the courts, the relevant rule of which I set out below, I can see no good reason for the ratio from Pablo Star set out above not applying equally to joining a person or body to proceedings under rule 9 of the GRC Rules. Notwithstanding the potentially wider catchment of either limb of CPR rule 19.2(2), the Court of Appeal made it clear that a critical consideration was whether the rights of another person or body may be affected by the decision. That consideration seems to me to carry even greater force in a context where the other party or person does not wish to be joined to the proceedings, bearing in mind the consequences (e.g. costs) of being made a party and the potential sanctions that could apply to that joined party if they do not then participate in the proceedings.

Rule 19.2(2) of the CPR before the Court of Appeal in Pablo Star provided that:

“The court may order a person to be added as a new party if

(a)

it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b)

there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.”

Moreover, although Judge Wikeley when giving permission to appeal in this case raised a question about whether the point about joining a party had been argued out in the ML case, the point was in issue Pablo Star. The Court of Appeal described the appeal as raising “a point of practice as to the circumstances in which it is permissible and, where permissible, appropriate to join a third party to proceedings for restoration of a dissolved company to the Register of Companies”. The ratio of the decision in Pablo Star is thus on point and powerful authority that a person or body should only be joined to proceedings without their consent if their interests or rights are affected by the decision.

The First-tier Tribunal in joining the Information Commissioner to Dr Spier’s rule 7A contempt application, without the consent of the Information Commissioner and against his express (and, per Bell, clearly fully informed) wishes, gave no consideration to whether the Information Commissioner’s rights or interests may have been affected by the proceedings. That failure was a clear and material error of law. Had the First-tier Tribunal addressed that issue, I can find no proper basis on which it could have concluded that the Information Commissioner’s interests or rights were affected by Dr Spiers’s contempt proceedings. The allegation in those proceedings was not directed against the Information Commissioner. It was, and is, Dr Spier’s case that the Garstang Medical Practice has failed to meet the requirements placed on it by the First-tier Tribunal’s substituted Decision Notice. As Information Commissioner v Moss establishes, it is for the First-tier Tribunal to decide this dispute between Dr Spiers and Garstang. There is no dispute on the rule 7A application involving the Information Commissioner. And there cannot be any need (per CM and GC) for the Information Commissioner to be bound by the First-tier Tribunal’s decision whether to certify, or not certify, Garstang for contempt.

Nor can I identify any other basis on which the rule 7A proceedings may affect the interests of the Information Commissioner. The issues the First-tier Tribunal required the Information Commissioner to assist it with did not engage his interests. They were really about the Information Commissioner adopting an amicus role and assisting the First-tier Tribunal with its approach to Dr Spier’s contempt application against Garstang and its decision whether to certify for contempt. None of that affects the interests of the Information Commissioner.

Further, and despite Dr Spiers’s argument suggesting otherwise, I do not consider that the Information Commissioner’s “general functions” in section 47 of FOIA – “to promote the following of good practice by public authorities and …..to promote the observance by public authorities of the requirements of [FOIA and the codes of practice made under it]” – mean that his interests were affected by the rule 7A contempt application. The section 47 duties might just possibly be distilled into what the First-tier Tribunal described as the Information Commissioner’s role in “upholding information rights in the public interest” or in him being the “independent regulator of information rights”. However, it is at the very least questionable whether the wide duty of promoting good practice and observance of FOIA amounts in itself to the Information Commissioner being the regulator of information rights, in the sense of him enforcing compliance by public authorities at all stages. Moreover, it is established, following Information Commissioner v Moss, that it is for the First-tier Tribunal to enforce compliance with its substituted Decision Notices and that it would be contrary to constitutional principle for the Information Commissioner to be engaged in that enforcement. I therefore find it difficult to see how the general duties in section 47 of FOIA can found an argument that the Information Commissioner’s interests in enforcement, or rights in respect of enforcement, under FOIA generally, but which cannot involve enforcement of First-tier Tribunal decisions, provides the basis for his interests being affected by the enforcement of the First-tier Tribunal’s decision. This would seem to elide the constitutional distinction drawn in Information Commissioner v Moss and effectively bring the Information Commissioner into the enforcing of First-tier Tribunal decisions by the back door.

Further, I accept the Information Commissioner’s argument that the general nature of his duties under section 47 of FOIA is such that it leaves it to the Information Commissioner what action he should take in any given situation to promote observance of FOIA. Nothing in these proceedings suggests he has breached that duty in terms of Garstang’s alleged failure to abide by the First-tier Tribunal’s substituted Decision Notice. Moreover, for the reasons already given it is for the First-tier Tribunal, not the Information Commissioner, to determine that issue and take enforcement action, and any enforcement duty that may arise under section 47 has no place in that First-tier Tribunal area of decision making.

I wish to stress that all of the above concerns a situation where the First-tier Tribunal required the Information Commissioner to be a party in Dr Spiers’s rule 7A contempt application against the Garstang Medical Practice. It would arguably have been open to the First-tier Tribunal, and for some of the reasons it gave, to have invited the Information Commissioner to become a party and assist the First-tier Tribunal on matters of general approach (Footnote: ³) to this new area of its jurisdiction, though possibly that would have been needed only in one or two test cases. That may arguably have placed the Information Commissioner in an appropriate amicus role and accorded with his general duties under section 47 of FOIA. But that is not what occurred here.

For the reasons given above, the appeal succeeds and I remake the First-tier Tribunal’s ‘joinder’ decision/ruling in the terms set out above.