Christian Herman v The Information Commissioner & Anor

Where a tribunal appeal was heard in a party’s absence because the tribunal was misled about the reason for non-attendance, that circumstance is a significant factor in deciding whether it is in the interests of justice to set aside the decision. The fact that absence is also a condition for setting aside does not prevent it being considered under the interests of justice test.

After a late application has been admitted, delay may remain relevant, but general concerns about resources or the administration of justice are insufficient without particularised prejudice. The Upper Tribunal may set aside the decision and remit the substantive appeal where its determination requires the specialist constitution of the First-tier Tribunal.

Mr Herman appealed decisions of the First-tier Tribunal concerning requests made under the Freedom of Information Act 2000 for the service and disciplinary records of three Kent police officers. The First-tier Tribunal dismissed the original appeal in 2017 while Mr Herman was absent, having been wrongly informed that he had refused to attend.

In 2022, the First-tier Tribunal admitted Mr Herman’s late application but refused to set aside the 2017 decision. The issue before the Upper Tribunal was whether that refusal involved material errors of law and, if so, whether the 2017 decision should be set aside under rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

1. The appeal was allowed. The First-tier Tribunal’s decision of 31 August 2022 involved material errors of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

2. The First-tier Tribunal had failed to give proper weight to the central importance of an appellant being able to attend an oral hearing. The appellant was entitled to attend under rule 33(1)(a), and that entitlement had been removed through no fault of his. His absence remained relevant to the rule 41(1)(a) interests of justice test, notwithstanding that absence was separately identified as a condition in rule 42(2)(c).

3. The First-tier Tribunal had wrongly concentrated on the underlying merits. It had failed to consider the tribunal’s broad power to admit evidence under rule 15, the appellant’s circumstances as a serving prisoner, and the fact that the criminal trial transcript had not been before the tribunal in 2017.

4. The First-tier Tribunal had also failed properly to consider whether the appellant’s attendance would inevitably have made no difference to the outcome. The tribunal had not received all the evidence, had described itself as having no indication in the papers of the claimed necessity for disclosure, and had only doubted that disclosure was necessary. The nature of the original three-person specialist tribunal was also relevant.

5. On remaking the decision, the Upper Tribunal held that the admitted delay did not justify refusing relief. Delay could be relevant where it caused actual prejudice, such as the loss of witnesses or information, but no such prejudice had been established. The unchallenged decision admitting the late application was binding and could not be reopened indirectly by relying on the time limit.

6. The 2017 decision was set aside under rule 41. The substantive appeal was not remade because, consistently with Natural England v Warren, it should be determined by the specialist three-person constitution of the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber) — The appeal was allowed. The First-tier Tribunal’s refusal dated 31 August 2022 and its substantive decision dated 17 October 2017 were set aside.
• First-tier Tribunal (General Regulatory Chamber) — The tribunal dismissed the appeal against the Information Commissioner’s decision notice on 17 October 2017. On 31 August 2022 it admitted the late application but refused to set aside the earlier decision.