Leave.EU Group Limited v The Information Commissioner

The Court of Appeal dismissed the appellant Leave.EU's appeal for non-attendance. The court held that it had both the powers under CPR Part 52.20(1) to exercise the Upper Tribunal's powers and an inherent jurisdiction to dismiss an appeal where a corporate appellant fails to appear. The court was satisfied that Leave.EU, through its sole director, had been notified of the hearing and that its solicitors had come off the record prior to the hearing. The court declined to hear the substantive appeal in the appellant's absence because the issues were important and novel and full oral argument from both sides was required; an adjournment was not appropriate for reasons set out in the judgment, including the requirement for finality and the Court's limited time.

This was an appeal from the Upper Tribunal (Administrative Appeals Chamber) ([2021] UKUT 26 (AAC)) against decisions of the First-tier Tribunal upholding decisions of the Information Commissioner dated 1 February 2019. The Commissioner had issued a Monetary Penalty Notice under section 55A of the Data Protection Act 1998 and an Assessment Notice under section 146 of the Data Protection Act 2018 in respect of unsolicited direct marketing emails said to contravene Article 13 of Directive 2002/58/EC and paragraph 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

The appellant Leave.EU pursued three grounds: (i) that paragraph 22 did not prohibit including direct marketing in otherwise solicited political newsletters; (ii) that subscribers had freely consented to receive marketing material from Eldon; and (iii) that the Information Commissioner should have given reasons for her decision. The Upper Tribunal had given Leave.EU permission to appeal. Eldon, the second appellant, consented to dismissal of its appeal after a change of ownership.

Procedurally, Leave.EU's solicitors (Kingsley Napley LLP) came off the record on 26 January 2022. The court emailed the sole director, Mr Jacobus Coetzee, on 31 January 2022 seeking confirmation of representation. No response or attendance occurred on the hearing date. The court considered its powers under CPR Part 52.20(1), CPR Part 1.1, and the Tribunal Procedure (Upper Tribunal) Rules 2008 (notably Rule 38 and Rule 8(3)(b)), and noted authorities addressing inherent jurisdiction to proceed in the absence of a party.

The court concluded it was satisfied Leave.EU had been notified of the hearing and chose not to attend. It exercised its inherent jurisdiction and rule 8(3)(b) (applied via CPR Part 52.20(1)) to dismiss the appeal for non-prosecution. The court explained that the substantive issues were important and novel, that full oral argument from both sides was necessary, and that an adjournment was not appropriate because Leave.EU made no application and finality and court resources militated against it.

Appeal dismissed. The Court of Appeal held that it had the same powers as the Upper Tribunal under the Tribunal Procedure (Upper Tribunal) Rules 2008 and an inherent jurisdiction to dismiss an appeal where a corporate appellant fails to attend; the court was satisfied Leave.EU had been notified of the hearing and that, given the importance and novelty of the issues and the absence of the appellant, it would not be just or appropriate to hear the substantive appeal or to grant an adjournment.

Appeal from the Upper Tribunal (Administrative Appeals Chamber) decision [2021] UKUT 26 (AAC), which upheld the First-tier Tribunal (General Regulatory Chamber Information Rights) decision promulgated 28 February 2020. Permission to appeal was given by the Upper Tribunal on 12 March 2021. The Court of Appeal dismissed the appeal on 8 February 2022 ([2022] EWCA Civ 109).