RECENT TRIBUNAL RULINGS - RISKS FOR APPELLANTS

July 15th, 2010 by Anya Proops

The Tribunal has recently issued a ruling highlighting the dangers for a public authority if it submits an inadequately reasoned notice of appeal. In Westminster City Council v IC (EA/2010/0096), the Council had submitted a notice of appeal against the Commissioner’s decision notice within the 28 day time limit allowed for under rule 22 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”). However, the notice of appeal merely asserted that the Commissioner had erred in deciding that the EIR 2004 rather than the FOIA applied to the disputed information. The notice did not contain any grounds for this assertion. Thereafter, the Tribunal ordered the Council to provide grounds for its appeal. The Council was given a week to provide the relevant grounds. The Council missed that deadline. Moreover, it did so in circumstances where it had not notified the Tribunal that it needed an extension of time for lodging the grounds. The Council invited the Tribunal to overlook the three day delay in submitting the grounds. It alleged that the delay was due to staffing difficulties; the need to take legal advice; a failure to understand the tribunal procedures and a failure properly to record the date set by the Tribunal for submission of the grounds. The Tribunal refused to accept these arguments. It held that the Council was a large authority with a specialised in-house FOIA department; that an alleged lack of resources was not a valid excuse and that advice should have been sought at an earlier stage. Accordingly, the Tribunal refused to accept the grounds. There are two lessons to be derived from this ruling. First, an appellant which fails adequately to particularise its case in its notice of appeal or otherwise to follow up the notice promptly with fully reasoned grounds may well end up losing the right of appeal altogether. Second, where there are concerns that a tribunal deadline may be missed, the affected party should always consider notifying the tribunal of that fact and seeking an extension of time.

In a separate development, the Tribunal recently decided in Thackeray v IC (EA/2010/0088) that an appellant would not be allowed to proceed with his appeal in view of his refusal to provide the Tribunal with a postal address. Mr Thackeray had provided an email address in his notice of appeal but refused to provide a postal address, allegedly because he was concerned that he would face harassment if the address was disclosed. Mr Thackeray argued that provision of an email address was sufficient in order to meet the requirements of rule 22(a) and (c) of the Rules. The Tribunal decided that the notice of appeal would be invalid in the absence of the provision of a postal address. The Tribunal took the view that a postal address was a pre-requisite not least in view of: (a) the fact that parties may want, for reasons of security, to deliver documents directly rather than by email; and (b) a postal address would be required to protect the position of the other parties in the event that costs were awarded against the appellant. Unfortunately, neither of these rulings can at present be found on the Tribunal website.

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PREPARATION OF WITNESS STATEMENTS - SOME DOs AND DONTs

July 12th, 2010 by Anya Proops

In a paper which I delivered at the 11KBW Information Law seminar in May 2010, I identified a number of tips designed to assist parties in preparing for hearings before the information tribunal – the paper can be found here. Very recently, the tribunal has handed down a decision which highlights the dangers to a public authority if it fails to ensure that any witness statements generated for the purposes of the tribunal hearing are sufficiently full and illuminating: Metropolitan Police Service v IC (EA/2010/0006).

The MPS case involved a request made to the MPS for disclosure of information as to how much money Croydon Police had spent on paying informants in the preceding three years. The MPS refused disclosure of the requested information relying on a range of exemptions, including s. 30 (criminal investigations) and s. 31 (law enforcement). The Commissioner upheld the applicant’s complaint against the refusal notice. In the course of the appeal to the tribunal, the MPS produced witness statements in support of its case on appeal. However, as it happened, the significant evidence given by these witnesses was only obtained through the process of cross-examination. The tribunal voiced serious concerns about the fact that the MPS had not included such evidence in its witness statements (which had been exchanged some time before the hearing) but had, instead, effectively ambushed the Commissioner by giving such evidence orally at the hearing. The tribunal noted that this was not the first time the MPS had adopted such a course in proceedings before the tribunal and that ‘there may be cost consequences for the MPS in future cases’ (see paragraphs 16-17). What this judgment highlights is the importance of generating witness statements which contain, so far as possible, the core evidential points upon which the authority wishes to rely in advancing its case. If parts of the evidence are highly sensitive, this does not justify withholding the evidence. Instead, it merely means that the authority should structure the witness statements so that any sensitive, confidential elements are dealt with in the closed statements (which are then considered in closed session.

The tribunal went on to hold that the disputed information was in fact exempt from disclosure under s 24 (the national security exemption – as to which see my earlier post below). The point to be noted here is that the case may never have come before the tribunal had the MPS: (a) identified that s. 24 was in issue at a much earlier stage; and (b) been full and frank with the Commissioner as to the reasons why the information was exempt under s. 24. 11KBW’s Ben Hooper was instructed on behalf of the Commissioner.

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LATE EXEMPTIONS - THE LATEST TWIST

June 30th, 2010 by Anya Proops

The question of whether a public authority can seek to rely on exemptions at a late stage in proceedings is one which arises in many tribunal appeals. Certainly, it is not at all unusual for a public authority to argue before the tribunal that it now wants to rely on exemptions which have never previously been identified. Historically, the Tribunal has taken the view that it has a discretion to refuse late reliance on exemptions and, in practice, it has tended to refuse late reliance save where there are exceptional circumstances (see further earlier paper on this issue which you can find here and see also an earlier post here). However, one tribunal has very recently taken a rather different view of the matter. In particular in Home Office v IC (EA/2010/0011), the tribunal held that in fact it had no discretion to refuse late reliance, particularly in view of the way in which the exemptions had been provided for under FOIA. This departure from tribunal orthodoxy is no doubt going result in a significant amount of debate, not least because there are now competing tribunal decisions on the issue of late exemptions. It may be that the matter will be resolved as and when the appeal in the case of DEFRA v IC & Birkett is heard in the Upper Tribunal. However, this remains to be seen. So watch this space.

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COURT OF APPEAL JUDGMENTS ON USE OF CLOSED MATERIAL PROCEDURE IN CIVIL LITIGATION

May 6th, 2010 by Anya Proops

On Tuesday of this week, the Court of Appeal handed down three important judgments on the question of how, in the context of civil litigation, courts should approach cases where the State is seeking to advance part of its case through a closed material procedure. The closed material procedure effectively operates to allow the State to put evidence and arguments before the court in closed session, which is to say in the absence of the other parties and their representatives. The excluded parties and their representatives will not be given access to any closed evidence or arguments. The procedure typically entails arrangements whereby the excluded parties will be represented in the closed session by a special advocate. All three appeals were decided by the same panel of judges, namely: Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ. The following is a summary of the judgments:

HOME OFFICE v TARIQ [2010] EWCA Civ 462 – T had been employed by the Home office as an immigration officer. T’s brother and cousin had been arrested in relation to alleged terrorist offences. The cousin was convicted and the brother released without charge. T was suspended from duty due to national security concerns. T, who was a Muslim of Asian/Pakistani origin, went on to bring claims in the employment tribunal of race and religious discrimination. The tribunal held that it had statutory powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to hear certain evidence relating to the claims in closed session, albeit that T would be represented in that session by a special advocate. The Employment Appeal Tribunal held that the decision to hear evidence in closed session was not unlawful but that T and his representatives should be informed of the gist of the closed material which was to be heard in the closed session. The Secretary of State appealed the decision that T should be told the gist of the closed material. T cross-appealed on the grounds that the convening of a closed session was itself unlawful under the European Directives from which his right to claim discrimination was derived and, further, under Art. 6 ECHR. The Court of Appeal, upholding the EAT’s judgment, held that: (a) the closed materials procedure, which entailed the use of a special advocate to represent T’s interests, did not contravene either the Directives or Art. 6 of the Convention; and (b) following Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2009] 3 WLR 74, T was entitled to know the gist of the closed material so that he could fairly and effectively pursue his claims.

 

BANK MELLAT v HM TREASURY [2010] EWCA Civ 483 – B was a bank which had been made subject to a direction under the Financial Restrictions (Iran) Order 2009. The order had been made pursuant to the Counter-Terrorism Act 2008. The Direction prohibited all persons operating in the financial sector from entering or participating in any transaction or business relationship with B. The basis of the Direction was that M ‘continued to engage in a pattern of conduct which supported and facilitated Iran’s proliferation-sensitive activities, that nuclear-related companies received funds from B, and that a company with alleged connections with other nuclear-related companies conducted business using B’. B sought to challenge the Direction under CPR 79. CPR 79 contains provisions allowing for a closed materials procedure to be adopted. T wished to treat certain evidence as closed evidence under the closed material procedure. B challenged T’s attempt to withhold the closed evidence from it. The High Court held that T was obliged under Art 6 of the Convention to afford B sufficient disclosure to enable it to give effective instructions about the essential allegations made against it. HELD: The Court of Appeal held that, where disclosure of evidence might be contrary to the public interest, Art 6 permitted a balancing exercise to be undertaken. However, in line with Tariq v Home Office, B should be given the gist of the information being withheld so that he could give effective instructions in relation to the case being put against him. The information provided to B had to be sufficient to enable B to give sufficient instructions not merely to deny, but actually to refute the essential allegations relied on by T.

 

BISHER AL RAWI & 5 ORS v SECURITY SERVICE & Ors [2010] EWCA Civ 482 – The appellants (X) appealed against a decision of the High Court that, as a matter of principle, it was open to the court to order a closed material procedure in the context of a civil claim for damages. X were former Guantanamo detainees. They had made various claims against the respondents (Y) including claims for damages for false imprisonment, trespass to the person, torture and negligence. Y invited the court to apply a closed material procedure which would enable them to rely on pleadings and evidence which would not be disclosed to X or their representatives, albeit that it would be disclosed to a special advocate representing X’s interests. Y argued that this approach was necessary in the public interest. X’s position was that it was not open to Y to use a closed material procedure and that its only option was to rely on the public interest immunity (PII) procedure. Under that procedure, any evidence which was subject to PII would be excluded altogether from the litigation process, which meant that neither party could rely upon it. Y argued that the closed material approach was preferable because the court would be more likely to arrive at a fair result if it could see the relevant material. HELD: The Court of Appeal, overturning the High Court’s judgment, held that it was not open to the court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. The Court commented obiter that different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations did not apply in the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no “triangulation of interests” would be involved.

 

What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security. They also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.

 

 

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USE OF SECRET EVIDENCE - NEW JOINT COMMITTEE ON HUMAN RIGHTS REPORT

March 26th, 2010 by Anya Proops

In an earlier post this month on the Al Rawi litigation, I reflected upon recent developments concerning the use of secret evidence in civil litigation. Yesterday, the House of Lords and House of Commons Joint Committee on Human Rights published its latest report on the human rights implications of UK counter-terrorism measures: Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In. In its report, the JCHR expressed serious concerns about the growth in the use of secret evidence procedures within the judicial system and the Government’s apparent failure to apply the restrictive principles outlined in the Article 6 cases of A v UK [2009] 49 EHRR and Secretary of State v AF [2009] UKHL 28. The following paragraphs of the report are particularly worthy of note:

62. The Government’s response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board’s procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review.

 

64. We are not satisfied that the Minister’s answer meets the special advocates’ concerns about the difficulty of distilling the relevant principles from closed judgments, or about the necessary accessibility of the law. We recommend that the Government include arrangements for law reporting in the review of the use of secret evidence that we have recommended above.

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Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure

March 9th, 2010 by Anya Proops

On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.

In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.

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The New Information Tribunal - Recent Article

March 5th, 2010 by Anya Proops

Here’s a recent article I wrote for the Local Government Lawyer on the new Information Rights Tribunal: The Right Stuff.

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Hearing Closed evidence in Civil Claims - Al Rawi in the Court of Appeal

March 5th, 2010 by Anya Proops

Next week, the Court of Appeal will hear an appeal by Bisher Al Rawi and other former Guantanamo detainees against Silber J’s decision that the court does have the power, in the context of civil claims for damages, to hear evidence in the absence of the claimant and the public – see Al Rawi v Security Services & Ors and see also my earlier post on Silber J’s judgment. If the Court of Appeal upholds the decision, the High Court will determine at a future hearing whether to adopt a closed process in this case. Karen Steyn appears for the Respondents.

 

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TRIBUNAL RULES - NEW CONSOLIDATED SIs

February 11th, 2010 by Anya Proops

For those of you who were struggling to piece together the various statutory instruments containing the new rules governing the operation of the Information Rights Tribunal, help is now at hand. Consolidated versions of the relevant SIs can now be found on the Tribunal’s website.

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NEWS FLASH: INFORMATION TRIBUNAL RIP

January 15th, 2010 by Anya Proops

Today, we should all pause and reflect on the passing of the much loved Information Tribunal. With effect from this coming Monday (18 January 2010), the Information Tribunal in its existing incarnation will cease to exist and all work which has hitherto been done by the Tribunal will be transferred to the new General Regulatory Chamber. The transfer is to be effected in accordance with the Transfer of Functions Order 2010 (SI 2010/22) (“the Transfer Order”). It is important to be aware of the following systemic changes which will result from the transfer:

 

1.                   from 18 January 2010, all appeals under FOIA will be heard either in the First-tier Tribunal (Information Rights) (“the FTT”) or in the Upper Tribunal (“UT”);

2.                   the question whether particular appeals are to be heard in the FTT or the UT is, in principle, to be determined by the new tribunal rules governing the operation of the FTT and the UT (see paragraph 2(3) of the Transfer Order);

3.                   there are in fact two sets of rules which are relevant in this context:

 (a) the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, SI 2009/1976 (“the FTT Rules”) (as amended very recently by the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43); and

(b) the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008 (“the UT Rules”) (as amended by SI 2009/274, SI 2009/1975 and SI 2010/43);

4.                   as matters currently stand, these Rules say very little as to how FOIA appeals are to be allocated as between the two different tribunals, save that all appeals under s. 60 FOIA (appeals against national security certificate) must be heard in the UT (see paragraph 24 of the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43). It is understood that, apart from appeals brought under s. 60 FOIA, the issue of allocation of appeals as between the two tribunals is likely to be determined on the basis of (forthcoming) practice directions rather than by reference to the Rules per se;

5.                   the FTT Rules and the UT Rules will apply in respect of all new appeals brought under FOIA (i.e. appeals which are commenced on or after 18 Janaury 2010);

6.                   in respect of appeals commenced prior to 18 January 2010, the tribunal will have a discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer Order which contains the relevant transitional provisions);

7.                   the FTT Rules and UT Rules will in due course be supplemented by practice directions – see further the new practice direction on confidentiality and redaction of documents (dated 18 January 2010). 

 

 

 

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