Evans v the Information Commissioner

A tribunal’s decision must be construed objectively by reading its operative terms and written reasons together, in their procedural context. Where the tribunal has allowed an appeal and its reasons show that a particular issue required no separate decision because another claim succeeded, that issue has been disposed of. The tribunal cannot later reopen it merely because consequential decision notices remain to be issued. An appellate court may decide an appeal on one ground and leave another unresolved where the first ground disposes of the appeal as a whole.

Mr Evans appealed to the Upper Tribunal against Information Commissioner decision notices concerning requests for correspondence between The Prince of Wales and Government ministers, together with lists and schedules of the relevant documents. The Upper Tribunal’s September 2012 decision allowed the appeals and gave reasons addressing the correspondence, stating that it was unnecessary to discuss the lists and schedules because Mr Evans had indicated that those requests need not be considered if disclosure of the correspondence was ordered: [2012] UKUT 313 (AAC).

After the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000, Mr Evans asked the Upper Tribunal to determine the lists and schedules requests. In its February 2013 decision, the Upper Tribunal held that the September decision had not disposed of them and ordered disclosure: [2013] UKUT 075 (AAC). The Departments appealed, raising the effect of the September decision and the consistency of the later order with the certificate.

1. Appeal allowed. The February 2013 decision was set aside.
2. The September 2012 decision had to be read with its written reasons and assessed objectively, by reference to the language used in context. It was a legally effective and appealable determination of the appeals, although redaction of third-party personal data and the formal substituted decision notices remained outstanding.
3. Paragraph 243 of the September reasons disposed of the lists and schedules issue. Mr Evans had indicated that the issue need not be considered if the Upper Tribunal accepted his arguments on disclosure of the correspondence, and the tribunal had reached those conclusions. The reference to possible consideration after a successful further appeal and remittal did not reserve the issue for later separate determination.
4. The Upper Tribunal’s contrary reasoning was unsustainable. If substituted decision notices did not prevent the correspondence issue from being determined, they did not prevent determination of the lists and schedules issue. Subject to immaterial powers under the Rules to set aside or review a decision, the Upper Tribunal had no power to reopen the September determination and make a fresh decision on the lists and schedules.
5. The second ground, concerning whether disclosure would constitute a digest or summary under section 11(1)(c) of the Freedom of Information Act 2000, was not decided. It was unnecessary after the first ground succeeded, and the Attorney General’s certificate had in any event been held unlawful and quashed in the related judgment.

• Court of Appeal (Civil Division) — allowed the appeal from the Upper Tribunal’s February 2013 decision and set that decision aside: [2014] EWCA Civ 253.
• Upper Tribunal (Administrative Appeals Chamber) — in September 2012 allowed Mr Evans’s appeals, then in February 2013 held that the lists and schedules issue remained undecided and ordered disclosure: [2012] UKUT 313 (AAC); [2013] UKUT 075 (AAC).