Gary Shipton v The Information Commissioner & Anor

All three parties have made detailed written submissions on the appeal. There has been no application from any party for an oral hearing of the Upper Tribunal appeal. In any event, I am satisfied that it is fair and just to proceed to a decision on the papers.

TheAppellant’s notice of appeal is economically drafted and for the most part set out in ‘bullet point’ format. Mr Shipton asserts that the consequences of Mr Palmer-Dunk’s absence were not explained to him. However, he neither provides any details as to the exchange that took place at the FTT hearing nor does he explain what were the ‘consequences’ of the absence of the missing panel member, nor how they were capable of making a material difference to the outcome or the fairness of the proceedings.

The Commissioner, in his Response drafted by Mr White, opposes the appeal, making six main points. First, the Commissioner accepts that for one panel member to absent themselves during evidence but to return for deliberations will, absent agreement (which must be “voluntary, informed and unequivocal”, per R (on the application of Hill)) be a breach of the rules of natural justice. Second, the Commissioner emphasises the importance of procedural flexibility in tribunals. Third, the Commissioner contends that on the facts Mr Shipton’s agreement was indeed “voluntary, informed and unequivocal”. Fourth, the Commissioner argues that Longmore LJ’s observation in R (on the application of Hill) (at [23]) is equally applicable here, namely that “there is something peculiarly unattractive” in a litigant agreeing to a course of action, continuing with the hearing and only then alleging a breach of natural justice when the decision is adverse. Fifth, the Commissioner submits that the FTT’s approach was not contrary to either the letter or the spirit of the Tribunals, Courts and Enforcement Act (TCEA) 2007. Finally, the Commissioner argues that Mr Shipton should have obtained a transcript of the FTT hearing to demonstrate how it was that he said he was under-informed as to the consequences of the proposed course of action.

The Council stands four-square behind the Commissioner in his response to the appeal, with Mr Fitzsimons adopting and fully endorsing Mr White’s submissions. In addition, the Council makes three further points. The first is the contention that the Appellant’s grounds do not come close to discharging the burden of showing that his consent to the course of action adopted by the FTT was other than “voluntary, informed and unequivocal”. The second is the submission that a litigant in person cannot rely on that status after the event to overturn an outcome with which they are dissatisfied, as that would be both undesirable in principle and unfair to the other parties. The third is the argument that it would not be fair now for the Appellant to raise an alleged unfairness in circumstances where it was clear to him how the FTT would proceed and he had made no request to vary that procedure or object to it.

The Appellant, in reply, states that he “felt pressured to consent in order to prevent further delay”. In particular, he “felt duty bound to agree to this procedural irregularity” given the FTT’s specific reminder to the parties to have regard to the overriding objective and their obligation to co-operate with the Tribunal (see paragraph 10 above). The Appellant adds that during the hearings he had felt that the FTT judge “unduly favoured” the Council but it was not until he received the final decision “that this became fully evident”. As such, he argues that “the absence of Mr Palmer-Dunk did have the effect of ‘Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings’, as he should of [sic] brought some equality to the proceedings.” Finally, the Appellant contends that the combination of the consequence of the panel member’s absence being not clearly explained to him and the pressure on him to agree to the unusual procedural arrangement meant that his consent was not voluntary, informed and unequivocal.

That said, for the most part the Appellant’s reply is devoted to re-arguing the other grounds of appeal on which permission to appeal has been refused and which have been certified as totally without merit. Those submissions are accordingly irrelevant and have not been further considered.

I consider first the rules governing the composition of the FTT and then the natural justice arguments raised by R (on the application of Hill).

The starting point must be the legislation. Section 3(1) of TCEA 2007 provides for the establishment of the First-tier Tribunal. Section 4 makes provision for judges and other members of the FTT, and Schedule 2 to the Act deals with their appointment and related matters. As to the composition of tribunals, paragraph 15(1) of Schedule 4 to TCEA 2007 requires the Lord Chancellor by order to make provision “in relation to every matter that may fall to be decided by the First-tier Tribunal … for determining the number of members of the tribunal who are to decide the matter.” Article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835), at least as originally enacted, in effect provided for the Senior President of Tribunals to stipulate the number of members for any particular category of case by way of a practice statement.

The paperchase then continues with the Senior President’s Practice Statement on the Composition of Tribunals in relation to matters that fall to be decided by the General Regulatory Chamber on or after 6 March 2015 (this has since been replaced and revised by a Practice Direction). The 2015 Practice Statement (which was in force at the material time) provided that “a decision that disposes of proceedings … must be made as set out in the following paragraphs” (paragraph 3). Those paragraphs included paragraph 10(1), providing that (subject to certain exceptions which do not apply here) a FOIA appeal must be determined by “one judge and two other members, where each other member has substantial experience of data protection or of freedom of information (including environmental information) rights”. The default position in such cases is thus a three-person FTT.

However, paragraph 15(6) of Schedule 4 to TCEA 2007 provides an exception as follows:

The effect of paragraph 15(6) is that a party can agree to a case being decided by a ‘short’ tribunal comprising two judicial office holders rather than the usual three-member panel. The mischief at which the provision is directed is obvious – a case may be listed before a three-person tribunal but at the last minute (such that a substitute cannot be called up) one panel member is unable to be present, e.g. because of illness or severe travel problems (see e.g. PH v Secretary of State for Work and Pensions (ESA) [2015] UKUT 553 (AAC)). However, on one reading at least, paragraph 15(6) does not envisage that a missing member can then either join or re-join the panel later (even assuming that they have access to a transcript or recording of the missing session).

A similar (but not identical) provision was in issue in R (on the application of Hill). The Institute’s Bye-laws provided for a three-person internal tribunal to hear disciplinary complaints. Bye-law 19(2) provided that if any panel member was “for any reason unable to attend the hearing”, or was “in the course of the hearing unable to continue to so attend”, then “the remaining members, if not less than two in number, may at their discretion proceed or continue with the hearing; but if the defendant is present or represented at the hearing, they shall do so only if he or his representative consents”. The applicant’s argument on appeal was that since Bye-law 19(2) was the only provision dealing with departure, it must follow that departure and return of a member was not allowed, even if the parties agreed.

Longmore LJ, giving the lead judgment in the Court of Appeal, rejected this submission in the following terms (NB: Mr Hamer was counsel for the applicant, Mr Mander was the ‘absentee’ panel member):

Mr White, for the Commissioner, supported by Mr Fitzsimons for the Council, submits that Bye-law 19(2) and paragraph 15(6) of Schedule 4 to the TCEA 2007 are essentially analogous, and that the Court of Appeal’s analysis of Bye-law 19(2) (as extracted above) is directly applicable in the present context, at least so far as paragraphs 11 and 12 of the Court’s judgment are concerned (it being acknowledged that the factor identified in paragraph 13 has no purchase in the current circumstances).

I find this submission unpersuasive for two main reasons.

First, although the two provisions may be similar in effect, they are by no means drafted in identical terms. As such, I do not accept that there is a direct read-across to the instant case from the Court of Appeal’s reasoning in R (on the application of Hill).

As to paragraph 11 of the Court of Appeal’s judgment, while tribunals may not be as formal as courts, they are creatures of statute in a way that most internal disciplinary tribunals are not. I would venture to suggest that most judicial office holders in tribunals would be very surprised to be told that their informal procedures permit “one member to depart and return” even if all parties agreed.

As to paragraph 12 of the Court of Appeal’s judgment, this turns on the specific language of Bye-law 19(2), with its focus on an “inability” to attend. Longmore LJ specifically noted that on the facts of that case the missing member “was unable to attend for a comparatively short time in the six day hearing. The Bye-laws just do not provide for that situation.” By contrast, Mr Palmer-Dunk was absent for the whole of the one effective hearing day of Mr Shipton’s appeal and missed hearing all the live evidence in real time. The statute, again in contrast, does provide for just such a situation in paragraph 15(6) of Schedule 4 to the TCEA 2007.

The second reason turns on the language of paragraph 15(6) itself. The usual rule for this type of case, as we have seen, is that the FTT must comprise a judge and two specialist members. Paragraph 15(6) provides an exception or easement to that requirement. It permits, with the parties’ consent, the matter to “be decided in the absence of one or more (but not all) of the members chosen to decide the matter”. Here the use of the verb “decide” is significant. The concept of decision-making in tribunals has been described as a “seamless web” by Upper Tribunal Judges Mesher and Ward in MB v Secretary of State for Work and Pensions (ESA & DLA) [2013] UKUT 111 (AAC); [2014] AACR 1 at paragraph 27:

In the present case Mr Palmer-Dunk had been engaged in the pre-hearing process of preparation and the earlier abortive hearing on 27 July 2022. To that extent he had already been involved in the decision-making process of Mr Shipton’s appeal. For whatever reason, he was then not available for the main effective hearing on 17 August 2022. At that point, given Mr Palmer-Dunk’s absence, the FTT judge should have invoked paragraph 15(6) to establish whether the parties were prepared to continue with a two-person tribunal. There is no sensible reading which allows paragraph 15(6) to be read so as to allow a tribunal member to stay on board but to dip in and out of a hearing.

This construction does not involve undue formality or rigidity. The Practice Statement, made under the authority of statute, requires a three-person tribunal panel to hear most FOIA appeals. Paragraph 15(6) provides for an exception to that otherwise mandatory requirement. It does not give a licence for a tribunal panel’s composition to morph over time, even with the parties’ consent, from a three-person panel to a two-person panel and then back again to a three-person panel. If this were permissible on one occasion there is no reason why it should not be permissible on more than one occasion, which would plainly be undesirable. I accept that the missing member in this case was able to view a CVP recording of the 17 August 2022 hearing, but that may well have prompted questions that he wished to explore with the witnesses but had no opportunity effectively to do so.

I therefore conclude that the FTT erred in law by failing to have regard to paragraph 15(6) of Schedule 4 to the TCEA 2007 in deciding how to proceed once Mr Palmer-Dunk’s non-availability for the hearing on 17 August 2022 had become an issue. Having made that finding, I deal later with the appropriate mode of disposal of this appeal.

Before leaving this aspect of the appeal, I should make it clear that nothing that I have said in this decision should be taken in any way as a criticism of Mr Palmer-Dunk personally.

In the event that I happen to be in error on the issue of the FTT panel’s composition, based on the legislative context, I need to address the natural justice aspect of Mr Shipton’s appeal.

It will be recalled that the general rule was expressed by Longmore LJ in R (on the application of Hill) as follows (at [22]):

“If there is a hearing with live witnesses giving their evidence orally, it will normally be a breach of rules of natural justice for a member of the tribunal (in the absence of agreement) to absent himself while a witness is giving evidence and later return to participate in the decision.”

Furthermore, and as already noted above, such agreement must be “voluntary, informed and unequivocal” (at [31]) if it is to prevent what would otherwise be a breach of the rules of natural justice.

There are undoubtedly several significant differences on the facts between those in R (on the application of Hill) and the circumstances of the present case. It will be sufficient to note just three. First, here we are dealing with a statutory tribunal and not an internal disciplinary tribunal. Second, R (on the application of Hill) was concerned with a relatively short-term absence in a six day hearing, whereas here the absence was for the whole effective hearing day (at least in real time). Third, the accountant was legally represented while Mr Shipton was a litigant in person. However, none of these factors undermines the basic principles set out by the Court of Appeal. At most they might point to a different conclusion on the facts.

There is no dispute but that Mr Shipton gave his consent to the unusual procedure adopted by the FTT. The issue, therefore, is whether that agreement was “voluntary, informed and unequivocal”.

Was it voluntary? Mr Shipton contends that his agreement was not voluntary because he was in effect put under undue pressure to consent by the need to avoid delay and by the FTT’s reference in its directions to the requirement that the parties co-operate with the tribunal. This argument is wholly unpersuasive. Throughout these proceedings Mr Shipton has shown himself able and willing to pursue his submissions with determination and vigour. The suggestion that his will was overborne is frankly risible. I am satisfied Mr Shipton’s consent was voluntary.

Was Mr Shipton’s consent informed? Mr White and Mr Fitzsimons argue that Mr Shipton had failed to explain in his notice of appeal how it is said that his consent was not informed. In my view that criticism may not be entirely fair, not least as the terms of the decision in R (on the application of Hill) had not been drawn to his attention at that stage. In his reply, Mr Shipton argues (see paragraph 25 above) that during the hearings he had felt that the FTT judge “unduly favoured” the Council but it was not until he received the final decision “that this became fully evident”. As such, he contends that “the absence of Mr Palmer-Dunk did have the effect of ‘Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings’, as he should of [sic] brought some equality to the proceedings.” There are at least two reasons why this submission is misconceived.

The first is that Mr Shipton, like the Council, was perfectly well informed as to the course of action that was proposed. Mr Palmer-Dunk was unable to attend on 17 August to hear the evidence in real time. However, Mr Palmer-Dunk would be made privy to the recorded evidence and continue to deliberate on the appeal. Mr Shipton was as informed as the Council as to how the procedure would work going forward.

The second is that there is in any event simply no evidence that the FTT judge or the FTT panel as a whole “unduly favoured” the Council. As Mr Justice Rimer once said, this type of argument is in essence “no more than the deployment of the fallacious proposition that (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased” (see London Borough of Hackney v Sagnia [UKEAT0600/03, 0135/04, 6 October 2005] at paragraph 63). The FTT approached the appeal in an even-handed manner and indeed did not draw back from making some serious criticisms of the Council. At paragraph [77] of its decision, the FTT recorded its concerns as follows:

It follows that Mr Shipton suffered no prejudice and his consent was informed.

Was Mr Shipton’s consent unequivocal? There is nothing to suggest Mr Shipton’s agreement was other than unequivocal. In R (on the application of Hill) the accountant’s solicitor at the hearing had requested an assurance that the missing member would have access to a transcript of the session for which he was absent. We do not have a record of the full exchange that took place at the FTT, but Mr Shipton received an assurance in writing that Mr Palmer-Dunk would be privy to the CVP evidence of the hearing. I am satisfied Mr Shipton’s consent was unequivocal.

As to the natural justice argument more generally, Mr White submits in the Commissioner’s response that the Appellant’s “late reliance on this point appears to be cynical and opportunistic – in short, an unfair attempt on his part to get a second bite of the cherry by resiling from a (fairly) agreed position”. Mr Fitzsimons, for the Council, essentially makes the same point, arguing that the appeal is in reality a challenge to the merits of the FTT’s decision “dressed in the cloak of a complaint about an alleged procedural irregularity that was not a concern of the Appellant during the appeal process or indeed at the time the Decision was made”.

For the reasons above, I am bound to agree. Mr Shipton’s consent to the procedural modification was voluntary, informed and unequivocal. As such, and applying the principles set out in R (on the application of Hill), I conclude there was no breach of natural justice.

Finally, I turn to how to dispose of the appeal given the findings above.

Section 12(1) and (2) of the TCEA 2007 provide as follows:

Thus, if the FTT’s decision involved the making of an error on a point of law, I have a discretion to exercise in that the Upper Tribunal “may (but need not) set aside the decision of the First-tier Tribunal” (section 12(2)(a)).

My conclusion, as set out above, is that the FTT’s decision involves an error of law in relation to panel composition. However, my consideration of the natural justice ground of the appeal is that there has been no breach or unfairness. In those circumstances, and given that all the remaining grounds of appeal have been certified as totally without merit, it would be quite unreasonable and indeed wholly disproportionate to set aside the FTT’s decision for the purposes of either remittal or re-making. Accordingly, I exercise the discretion in section 12(2)(a) so as not to set aside the FTT’s decision. The net effect is the FTT’s decision of 28 November 2022 stands.

I conclude that the decision of the First-tier Tribunal dated 28 November 2022 involves an error of law. I therefore allow the Appellant’s appeal. However, for the reasons explained above, I do not set aside the First-tier Tribunal’s decision. (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). My decision is also as set out above.