Dr Reuben Kirkham v The Information Commissioner

I am not at this stage deciding more generally whether to give permission to appeal. Rather, I am deciding the somewhat narrower question as to whether the application for permission to appeal should be struck out as having no reasonable prospects of success.

On 16 August 2023 I issued a strike out warning in the following terms:

As already noted, I subsequently decided to direct an oral hearing to consider the strike out issue alongside the judicial review application.

The key provision is rule 41, which is set out in full in the strike out warning referred to above and so need not be repeated here.

As intimated earlier, Dr Kirkham’s submissions, both on paper and orally at the remote CVP hearing, roamed far and wide. However, his primary and overarching argument was that both the Upper Tribunal and the Information Commissioner had fundamentally misunderstood the nature of his challenge. It was, he said, a mistake to characterise his challenge as being to the FTT’s strike out decisions. Rather, he argued, he had made the application in question within the context of his own open justice proceedings for the disclosure of relevant documents. Dr Kirkham further contended that Judge O’Connor’s decision was a case management decision within his open justice proceedings: “In effect, Judge O’Connor should have given directions on how the interrelated issues (namely the likely set aside or permission to appeal applications made by parties) were to be progressed. He failed to deal with the issue at all. That was an error of law and one which I have jurisdiction to challenge.” If he was wrong about the essential nature of the FTT proceedings in question, Dr Kirkham further submitted that the approach of the Upper Tribunal’s strike out warning to the construction of rule 41 was mistaken. In particular, rule 41 only applied to parties and did not say that other people cannot apply, and no such restriction should be read in. The cases on whether the FTT had a power to set aside of its own motion had been decided in the Social Entitlement Chamber and different policy considerations applied in the arena of information rights.

Mr Davidson’s submissions on behalf of the Information Commissioner were shorter and to the point. In summary, his argument proceeded by way of four stages. First, Dr Kirkham had made an application for certain FTT decisions to be set aside. Second, Judge O’Connor had refused that application. Third, the Upper Tribunal’s strike out warning had identified a jurisdictional point which would have prevented the FTT from considering the set aside application in any event. Fourth, the jurisdictional point relating to rule 41 was sound, meaning that in any event any onward appeal to the Upper Tribunal was bound to fail.

Dr Kirkham’s characterisation as to the nature of his challenge to Judge O’Connor’s ruling is wholly misconceived. Dr Kirkham may well see his application as part and parcel of his open justice proceedings for disclosure of the documents in the appeals in question. However, saying that it is so does not make it so. Nor does labelling the application “In the Matter of Third Party Disclosure in the cases of (etc)” make it so. It is the function of the court or tribunal concerned to identify the true nature of the application before it. In this case, and in any event, paragraph [12] of the application was quite clear that Dr Kirkham was applying, in his own words, “for all of the McKenna strike out rulings on Freedom of Information Act (2000) and/or Environmental Information Regulations (2003) cases where a case was struck out to be set aside.” It would have been positively perverse for Judge O’Connor to have construed Dr Kirkham’s request as anything other than an application for the decisions in the cases in question to be set aside. The Chamber President furthermore recognised the open justice proceedings as a discrete matter continuing on its own track (see paragraph 5 of his ruling).

Indeed, the only apparent uncertainty surrounding the nature of the application was whether it was referring just to the 11 cases specifically cited or whether it referred to all of Judge McKenna’s strike out rulings. Judge O’Connor decided it was the former, and for the reasons he gave in paragraph 4 of his decision. That explanation displays no arguable error of law. Indeed, any other approach would have been simply unworkable. If the application truly related to all Judge McKenna’s strike out rulings, what time limit if any was to apply? In a further ambitious submission at the oral hearing, Dr Kirkham suggested that Judge O’Connor should have directed that all the FTT’s strike out decisions (and not just those of Judge McKenna) should be identified and reviewed for error. The proposition only needs to be stated for its absurdity to be immediately apparent. Indeed, what price finality then?

Having correctly identified the nature and scope of the application before the FTT, Judge O’Connor proceeded to deal with the composite set aside application on its merits. Finding that it lacked any such merits, the application was dismissed. In doing so, Judge O’Connor in effect assumed for the purposes of argument that there was no jurisdictional bar to Dr Kirkham bringing such an application. My conclusion is that Judge O’Connor erred in law in taking that approach, but it was not a material error as the set aside application would have been refused in any event (albeit on the basis of lack of jurisdiction rather than lack of merits).

As to the jurisdictional bar and rule 41, Dr Kirkham advanced several arguments in support of his submission that the FTT in the General Regulatory Chamber has the power of its own motion to set aside one of its earlier decisions (notwithstanding MA v Secretary of State for Work and Pensions (PIP) [2020] UKUT 172 (AAC), a decision on the equivalent rule in the Social Entitlement Chamber). However, the point need not be resolved in the context of the present proceedings. The question at issue here is not whether the FTT can set aside of its own motion. Rather, the critical question is whether a non-party can make an application for a decision in other FTT proceedings to be set aside.

The short answer is that a non-party cannot do so, for the reasons identified in the strike out warning:

Dr Kirkham argued that there would be the risk of serious injustice in the information rights field if a non-party did not have such a right to apply for a FTT decision to be set aside. The answer to that is that under rule 9(3) a non-party always has the option of applying to be made a party (and so then making a set aside application), even after the event (see Razzaq v Charity Commission for England and Wales [2016] UKUT 546 (TCC)), and that is the appropriate way of protecting the interests of all concerned (see generally Information Commissioner v Spiers [2022] UKUT 93 (AAC)).

It follows that the FTT had no jurisdiction to entertain Dr Kirkham’s application to have the decisions in the 11 cited cases set aside. That being so, his proposed onward appeal to the Upper Tribunal has no reasonable prospects of success and must be struck out.

In the alternative, and if his application for permission to appeal to the Upper Tribunal was struck out, Dr Kirkham’s backstop position was that he should be granted permission to apply for judicial review of the FTT’s decision dated 18 April 2023.

Section 15(1) of the Tribunals, Courts and Enforcement Act 2007 vests the Upper Tribunal with a judicial review jurisdiction. By virtue of section 15(2)(a), these powers can only be exercised if four specific conditions are met, as stipulated in section 18.

Section 18 in turn materially provides as follows:

So far as Condition 3 (see section 18(6)) is concerned, paragraph 2 of the Lord Chief Justice’s Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327 provides as follows:

Plainly Dr Kirkham’s challenge to Judge O’Connor’s ruling does not fall within paragraph 2(a) of the Practice Direction. The question then is whether the challenge falls within the category of case identified by paragraph 2(b). If it does, then the Upper Tribunal has jurisdiction to hear and determine his application for permission to apply for judicial review. If it does not, the Upper Tribunal necessarily lacks jurisdiction and must by order transfer the application to the High Court (section 18(3)).

Dr Kirkham placed most emphasis in his submissions on his application for permission to appeal. He acknowledged that his application for permission to apply for judicial review was very much a fall-back position. As to this, his principal submission, drawing on R (on the application of Good Law Project Ltd v Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), was that standing was not properly a matter for the permission stage at all but rather should be addressed at a later stage in the proceedings. Dr Kirkham further argued that the approach to standing was typically liberal and that what he characterised as “the general dysfunction” (his words) of the FTT (General Regulatory Chamber) was a matter of “considerable public interest”. He further contended that the Upper Tribunal had jurisdiction to decide his application for judicial review.

Mr Davidson submitted that there were three compelling reasons why Dr Kirkham’s application for permission to apply for judicial review should be refused. The first and primary reason was that as a matter of principle permission should not be granted where there was an adequate alternative remedy, here in the form of a statutory right of appeal under the 2007 Act. The second reason was that Dr Kirkham lacked standing, in the sense of a sufficient interest, to apply for a set aside of any of the 11 specified FTT strike out rulings. The third reason, which Mr Davidson argued he need not rely on given the strength of his first two reasons, was that it was in any event questionable whether Condition 3 in section 18 of the 2007 Act was met so as to confer jurisdiction on the Upper Tribunal.

Dr Kirkham did not have a persuasive answer to any of Mr Davidson’s three reasons.

As to the first reason, it is axiomatic that judicial review is a remedy of last resort and as such permission to apply for judicial review will usually be refused where there is an adequate alternative remedy (MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) at [18]). As Lord Templeman once put it, the default position is that "Judicial review process should not be allowed to supplant the normal statutory appeal procedure” (R v Inland Revenue Commissioners ex p Preston [1985] AC 835 at 862). The general principles governing alternative remedies to judicial review were helpfully summarised by the Court of Appeal in R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 at [19]:

I interpose here that it is important to be clear about the nature of the adequate alternative remedy with which we are concerned. In this context it is not about whether Dr Kirkham has an alternative route to securing a set aside of the FTT decisions in the 11 cases. Rather, the question is whether, other than an application for judicial review, he has an adequate alternative remedy to challenging the decision of Judge O’Connor dated 18 April 2023. The short point is that Judge O’Connor made a decision with respect to which Dr Kirkham had the right of appeal to the Upper Tribunal, subject to permission being granted in the normal way (and subject to the possibility of the proceedings being struck out).

As to the second reason for refusing permission to apply for judicial review, relating to standing, Mr Davidson was careful to eschew the language of the “meddlesome busybody” (R v Monopolies and Mergers Commission ex p Argyll Group plc [1986] 1 WLR 763 at 773H). However, I accept the central thrust of his submission, namely that while Dr Kirkham may well be interested in (in the sense of curious about) the 11 cited cases, he does not have an interest properly so-called in the underlying cases. Put very simply, he has nothing to do with them and they have nothing to do with him. Dr Kirkham’s repeated protestations that he was not a “meddlesome busybody” but rather had been ”dragged into” (his words) the proceedings at the request of other litigants lacked evidential coherence and cannot disguise the absence of any such proper interest. Dr Kirkham also seeks to argue that standing should be determined at trial of the substantive application for judicial review. However, that submission is to overlook the two-stage approach to standing in judicial review proceedings as identified in R v Monopolies and Mergers Commission ex p Argyll Group plc. It also fails to recognise that the presence of an adequate alternative remedy by way of a statutory appeal means that arguments about standing do not and cannot take Dr Kirkham any further forward.

As to the third reason, Dr Kirkham argued that Mr Davidson’s approach involved an “unnatural reading” of the Practice Direction. If I understood Dr Kirkham correctly, his submission was that Mr Davidson’s reading meant that if somebody somewhere could appeal the disputed decision, then nobody else could bring proceedings for judicial review “which makes no sense at all”. I need not resolve the Practice Direction point given the strength of Mr Davidson’s first two reasons. In particular, the fact of the matter is that Dr Kirkham has an alternative remedy, namely his right of appeal against the FTT’s decision of 18 April 2023. The fact that that application for permission to appeal has no prospects of success is neither here nor there. It follows that the application for permission to apply for judicial review must be refused.

In conclusion, Dr Kirkham’s application for permission to appeal against the First-tier Tribunal’s decision of 18 April 2023 is struck out as having no reasonable prospects of success. The parallel application for permission to apply for judicial review of the same decision is refused.