Nicholas, R (on the application of) v Upper Tribunal (Administrative Appeals Chamber) & Anor

Under the exceptional Taylor v Lawrence jurisdiction in the Civil Procedure Rules 1998, r 52.17, a final appeal determination may be reopened only to avoid real injustice in exceptional circumstances where no effective alternative remedy exists. The jurisdiction addresses a critical undermining of the earlier litigation process, especially corruption of justice, rather than ordinary legal or judicial mistakes. Lawyers’ mistakes, however understandable, are not exceptional merely because they may prevent an appeal from being argued. Passing the second-tier gateway for judicial review of an Upper Tribunal permission decision does not itself justify reopening. The application was refused and the appeal dismissed.

An unrepresented claimant lost Incapacity Benefit after a Personal Capacity Assessment and appealed unsuccessfully to the First-tier Tribunal; the Upper Tribunal refused permission to appeal. The Administrative Court granted permission for judicial review but Haddon-Cave J dismissed the claim, finding no procedural unfairness and, alternatively, no satisfaction of the Cart threshold. Richards LJ refused permission to appeal on the papers. Aikens LJ later granted permission on the issue concerning earlier assessments but refused permission on the argument that the Cart requirement had been spent once judicial review permission had been granted. The claimant applied under CPR 52.17 to reopen that refusal. The central issue was whether the procedural history and lawyers’ mistakes critically undermined the integrity of the litigation process.

Disposition

The Court of Appeal, comprising Longmore LJ, McCombe LJ and Sir Stanley Burnton, unanimously refused the application under CPR 52.17 to reopen Aikens LJ’s refusal of permission on the Cart point. The appeal could therefore no longer proceed and was dismissed. The court did not determine the substantive argument that the Cart requirement had been spent after permission to apply for judicial review had been granted.

1. Reopening test. CPR 52.17(1) requires a final appeal determination to be reopened only where reopening is necessary to avoid real injustice, the circumstances are exceptional and make reopening appropriate, and there is no alternative effective remedy.
2. Exceptional jurisdiction. The Taylor v Lawrence jurisdiction is concerned with the integrity of the earlier litigation process. As explained in Re Uddin [2005] 1 WLR 2398, the relevant circumstances ordinarily involve critical undermining of that process, particularly corruption of justice, rather than merely the possibility that the earlier process produced a wrong result.
3. Ordinary mistakes insufficient. The jurisdiction is not a means of correcting mistakes by lawyers or judges, however reasonable or understandable. Once a decision has become final, it must generally be accepted as final. Mistakes are not exceptional merely because they affect the conduct or prospects of an appeal.
4. Application. The Upper Tribunal had provided a further check and found no error. The case’s passage through the narrow second-tier gateway described in R (Cart) v Upper Tribunal [2001] UKSC 28; [2012] 1 AC 665 did not establish any critical undermining of the legal process. There was no corruption of justice or other exceptional circumstance justifying reopening.

Court of Appeal (Civil Division) — In [2013] EWCA Civ 799, refused to reopen Aikens LJ’s refusal of permission to appeal on the Cart point and dismissed the appeal.

• Administrative Court — Foskett J granted permission for judicial review on 13 March 2012. Haddon-Cave J dismissed the claim on 26 July 2012, finding no unfairness and, alternatively, that the Cart threshold was not met.
• Court of Appeal — Richards LJ refused permission on the papers on 5 December 2012. Aikens LJ granted permission on the issue concerning earlier Personal Capacity Assessments but refused permission on the Cart ground on 1 March 2013.
• First-tier Tribunal — Dismissed the appeal against withdrawal of Incapacity Benefit on 28 May 2009.
• Upper Tribunal — Refused permission to appeal from the First-tier Tribunal decision.