Rotherham Metropolitan Borough Council v Liam Harron & Anor

The Upper Tribunal has an inherent jurisdiction to determine what open justice requires in relation to access by non-parties to documents held in tribunal proceedings. The open justice principle does not create an automatic right to obtain documents. The applicant must explain how access would advance that principle, and the Tribunal must balance that purpose against harm to the judicial process or others’ legitimate interests. Practicality and proportionality are also relevant. The absence of a confidentiality direction under rule 14(8) of the Tribunal Procedure (Upper Tribunal) Rules 2008 is a factor, but does not require disclosure. The CPR concept of a statement of case has no automatic application in the Upper Tribunal.

After judgment allowing Rotherham Metropolitan Borough Council’s appeal against a First-tier Tribunal certification decision, Derek Moss, a non-party, applied for copies of the parties’ written submissions, statements of case and skeleton arguments. The merits judgment was [2023] UKUT 22 (AAC).

Mr Moss relied on open justice, Article 6 ECHR, rule 14(8) of the Tribunal Procedure (Upper Tribunal) Rules 2008, and analogies with CPR 5.4C. The application raised the extent of the Upper Tribunal’s inherent jurisdiction, the relevance of the absence of a rule 14(8) direction, and whether the requested documents should be disclosed to a non-party.

1. Application refused. The Upper Tribunal exercised its inherent jurisdiction, applying the approach in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38.
2. The open justice principle applies to tribunals and enables the public to understand and scrutinise the justice system. It gives the Tribunal power to permit access, but does not ordinarily give a non-party an entitlement to documents. The applicant must identify a good reason for seeking access and explain how disclosure would advance open justice. The Tribunal must also consider countervailing risks, including harm to an effective judicial process and legitimate privacy or confidentiality interests, together with practicality and proportionality.
3. The absence of an order or direction under rule 14(1), (2) or (8) was relevant but not determinative. Rule 14 addresses circumstances in which disclosure may be prohibited or protected; it does not create a general right for non-parties to obtain documents not subject to a specific prohibition.
4. Aria Technology Ltd v HMRC [2018] UKUT 111 (TCC) had to be read subject to Dring. Its references to an inherent power, common-law duty and a strong presumption in favour of access did not support the proposition that disclosure was merely administrative or automatic.
5. The CPR analogy did not assist. Under CPR 2.3(1), “statement of case” has a defined and limited meaning. The Upper Tribunal Rules contain no equivalent concept, and the written submissions and skeleton arguments sought would not have been statements of case even under the CPR. Article 6 ECHR added nothing in the circumstances.
6. The same fact-sensitive approach applies to documents provided by litigants in person. Lack of representation may be relevant to proportionality in an individual case, but does not create a consent requirement.
7. Mr Moss had not shown a good reason why disclosure would advance open justice. The public judgment already described the parties’ arguments, he had not addressed the earlier disproportionality ruling, and he had not sought the documents directly from the parties. The request was therefore refused.

The application followed the Upper Tribunal’s decision allowing Rotherham Metropolitan Borough Council’s appeal against the First-tier Tribunal (General Regulatory Chamber) decision of 29 June 2021. The merits judgment was [2023] UKUT 22 (AAC). The present decision concerned only a non-party’s request for documents and refused that application.