AD v The Information Commissioner

A tribunal may strike out an application for permission to appeal under rule 8(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008 where it has no reasonable prospect of success. The power is draconian and must be exercised cautiously, for a legitimate case-management purpose and consistently with the overriding objective. A hearing is not invariably required, provided the applicant has had an opportunity to make representations and the Tribunal has considered the party’s views.

Whether a request is vexatious under section 14(1) of the Freedom of Information Act 2000 requires an objective and balanced assessment of all relevant circumstances. The number, frequency, pattern, tone and apparent value of requests may properly be considered. A request’s novelty does not prevent it from being vexatious.

AD v The Information Commissioner concerned an application for permission to appeal from a First-tier Tribunal decision of 11 December 2014, file reference EA 2014/0149. The First-tier Tribunal had dismissed the appellant’s information-rights appeal after finding that a series of requests made to the Information Commissioner’s Office were vexatious under section 14(1) of the Freedom of Information Act 2000.

After the appellant applied for permission to appeal, the Upper Tribunal stayed the matter pending the Court of Appeal’s judgment in Dransfield v The Information Commissioner & Devon County Council [2015] EWCA Civ 454. Once the stay was lifted, the Tribunal proposed strike-out and invited representations. The central issues were whether the appeal had any reasonable prospect of success and whether it could fairly be struck out without an oral hearing.

1. The application for permission to appeal was struck out in its entirety. Rule 8(3)(c) applied because an application for permission to appeal is not itself an appeal from another tribunal. The appellant had been given the required opportunity to make representations on the proposed strike-out.

2. The power to strike out is a measure of final disposal. It must be used cautiously, for a legitimate case-management purpose, after considering whether another power would produce a more just result, and consistently with the overriding objective. The Tribunal concluded that the appeal’s failure was clear and incontestable, so no alternative case-management measure could confer arguable merit on it ([2013] UKUT 0550 (AAC); [2013] UKUT 030 (AAC)).

3. Rule 34 permitted a decision without a hearing, subject to regard for the appellant’s request. The loss of the usual opportunity to seek oral reconsideration after a paper refusal of permission was material but not decisive. The Tribunal held that a hearing would be disproportionate where the application had no even remote prospect of success, the appellant had already received a merits determination, and he had fully participated by making written representations.

4. The First-tier Tribunal’s finding that the requests were vexatious disclosed no arguable error of law. Applying Dransfield v The Information Commissioner & Devon County Council [2015] EWCA Civ 454, the assessment was objective and rounded. The number and frequency of the requests, their overlap and pattern, their tone, the absence of an evident benefit in many requests, and the appellant’s failure to explain a benefit were legitimate considerations. The fact that requests were new rather than duplicates did not immunise them from a finding of vexatiousness.

5. The remaining grounds were hopeless. There was no plausible evidential basis for the alleged offence under section 77 of the Freedom of Information Act 2000. The First-tier Tribunal was entitled not to stay its hearing pending the Court of Appeal’s judgment, and no possible material effect on the result had been identified.

• Upper Tribunal (Administrative Appeals Chamber): The appellant’s application for permission to appeal was struck out under rule 8(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• First-tier Tribunal: On 11 December 2014, file reference EA 2014/0149, the Tribunal dismissed the appellant’s appeal against the Information Commissioner’s reliance on section 14(1) of the Freedom of Information Act 2000. It subsequently refused permission to appeal.