Brown, R (On the Application Of) v Upper Tribunal

Permission to apply for judicial review of an Upper Tribunal refusal to grant permission to appeal should be granted under CPR 54.7A(7) where there is an arguable case, with a reasonable prospect of success, that the tribunal decisions were wrong in law, and the claim raises an important point of principle or practice or there is another compelling reason to hear it.

Constitutional issues concerning open justice and an agreement involving the judiciary about how a class of litigants is dealt with may satisfy both limbs. A claimant’s controversial underlying motives do not necessarily remove the compelling reason to hear such a case.

The claimant sought permission to challenge the Upper Tribunal’s refusal, dated 4 June 2013, to grant permission to appeal against a decision of the First-tier Tribunal (Information Rights) dated 12 July 2011.

The First-tier Tribunal had held that information requested from the Attorney General under the Freedom of Information Act concerning a consensus on sealing Royal Wills had lawfully been withheld. The central issues were whether there was an arguable error of law concerning the public-interest balance, open justice, and the adequacy of reasons for withholding part of the material.

1. Permission granted. Permission to apply for judicial review was granted on limited grounds.
2. Under CPR 54.7A(7), permission required an arguable case with a reasonable prospect of success that both the Upper Tribunal’s refusal of permission to appeal and the First-tier Tribunal’s decision were wrong in law. It also required either an important point of principle or practice, or another compelling reason to hear the claim.
3. The claimant had an arguable case that the tribunals had failed properly to identify or give sufficient weight to open-justice principles engaged by an agreement involving the judiciary concerning the treatment of a class of litigants. It was also arguable that overriding those principles was irrational.
4. There was a further arguable issue concerning the adequacy of the reasons given for refusing disclosure of part of the document, including material identifying court procedures and any agreed test to be applied by the presiding judge.
5. The constitutional features of the case supplied an important point of principle or practice and a compelling reason to hear it. The fact that the claimant’s underlying motives had been criticised by the Court of Appeal did not alter that conclusion. Nor did the possibility that related matters might be determined by the President of the Family Division remove the compelling reason.
6. Permission was refused on other grounds. There was no apparent inconsistency between a document containing procedural practices and containing private views of the Sovereign. The material had also been sufficiently shown to concern communications with the Sovereign for the purposes of section 37 of the Freedom of Information Act.

• First-tier Tribunal (Information Rights): On 12 July 2011, held that information requested from the Attorney General under the Freedom of Information Act had lawfully been withheld.
• Upper Tribunal: On 4 June 2013, refused permission to appeal.
• High Court (Administrative Court): Granted permission to apply for judicial review on limited grounds under CPR 54.7A(7).