July 22nd, 2011

The decision of the Upper Tribunal (UT Judge Wikeley) in IICUS v IC and BIS and Ray [2011] UKUT 205 (AAC) (available here: GIA 0384 2011-01) begins by observing that “the world of cricket is no stranger to the law courts”. It goes on to explain the controversy surrounding the creation of the International Institute of Cricket Umpiring and Scoring (IICUS) by individuals who had been expelled, barred or suspended from the Association of Cricket Umpires and Scorers (now known as the ECB Association of Cricket Officials). Mr Ray, a member of the latter body, raised concerns about IICUS, its status as an “Institute”, its finances and its company accounts. Companies House (falling under the Department for Business, Innovation and Skills for FOIA purposes) investigated the complaint and informed Mr Ray that it was satisfied that the information provided by IICUS was not misleading. He requested the evidence submitted by IICUS in response to his earlier complaint. Companies House refused, relying on sections 41 and 43 FOIA. The Commissioner agreed on section 41.

The Tribunal then considered the matter on the papers. IICUS had not been joined as a party. The Tribunal, however, circulated its draft judgment to the parties (other than the requester) – and also to IICUS, so as to allow it “to make any representations they wish and the Commissioner and DBIS to draw to our attention any factual errors or inappropriate disclosures”.

IICUS asked to be joined and submitted representations. The Tribunal joined it “for the purpose of making representations in relation to the draft decision”. It found for the requester, and ordered disclosure. IICUS’s appeal to the UT was supported by the Commissioner, given the unusual procedural history.

The UT has found that the Tribunal’s decision involved a breach of rule 32(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and of the principles of procedural fairness. That rule, when read with rule 1(3), requires the Tribunal to hold an oral hearing unless each party has consented to the matter being determined without a hearing and the Tribunal is satisfied that it can properly determine the issues without a hearing. Here, the UT found, IICUS had been joined (albeit after the paper hearing) and had not consented to the matter being determined without an oral hearing. On that procedural basis alone, its appeal was allowed and the matter is remitted for a second innings in the Tribunal.

The circulation of judgments in draft form is, of course, not uncommon. Those involved in litigation where such circulation is contemplated may wish to bear in mind UT Judge Wikeley’s counsel of caution (see paragraph 31):

“In this context it is important to take heed of the warnings of the superior courts as to the procedure to be adopted when draft decisions are issued.  As Smith L.J. observed in Egan v Motor Services (Bath) Ltd. [2007] EWCA Civ 1002, “circulation of a draft is not intended to provide counsel with an opportunity to re-argue the issues in the case” (at paragraph 50).  The same point was made by the House of Lords in Edwards v Environment Agency [2008] UKHL 22.  Furthermore, in Robinson v Bird (2004) The Times, January 20, May LJ specifically warned as follows:

“It scarcely needed saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the practice statements if they themselves perceived a risk that they might want to change them materially before they handed them down.”

In May, I posted a summary of a Court of Appeal case – Kennedy v IC and Charity Commission [2011] EWCA Civ 367 – in which submissions following the circulation of the draft judgment had made all the difference. The submission there was that – because the draft judgment described the disputed statutory provision as ambiguous – questions of interpretation in accordance with the Human Rights Act 1998 needed to be considered. Such circumstances, it would seem, provide a legitimate “opportunity to re-argue the issues in the case”.

Robin Hopkins

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