Christopher McCalla v Secretary of State for Defence

Tribunal Procedure (Upper Tribunal) Rules 2008, rule 43 provides a limited procedural safeguard. An applicant must identify a procedural irregularity in the Upper Tribunal proceedings and satisfy the interests-of-justice requirement.

Rule 43 cannot be used to reopen the merits of a refusal of permission to appeal, challenge the First-tier Tribunal’s factual findings, or circumvent statutory restrictions on further appeals. A document relied upon under rule 43(2)(b) must have existed and been capable of being sent before the relevant decision was made. A later-created expert report cannot retrospectively create a procedural irregularity.

The appellant claimed compensation under the War Pensions Scheme for bilateral popliteal artery entrapment syndrome, alleging that it had been caused or aggravated by army service. The respondent rejected the claim, and the First-tier Tribunal dismissed the appeal on 6 September 2023.

The First-tier Tribunal and the Upper Tribunal refused permission to appeal. After obtaining a further medical report, the appellant applied under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the Upper Tribunal’s refusal of permission. The Upper Tribunal rejected that application on 4 December 2023. The central issue was whether a report created after the refusal of permission could constitute a document not sent to the Upper Tribunal at an appropriate time and thereby establish a procedural irregularity.

Appeal dismissed. The court, in the judgment of Lord Justice Holgate agreed with by Lord Justice Males and Lord Justice Peter Jackson, applied the principles in Plescan v Secretary of State for Work and Pensions [2023] EWCA Civ 870.

1. Rule 43 permits the Upper Tribunal to set aside a decision disposing of proceedings, including a refusal of permission to appeal. The applicant must show a procedural error in the Upper Tribunal proceedings and that setting aside is in the interests of justice. The rule does not permit a challenge to the merits or reasons of the refusal of permission, or to the First-tier Tribunal’s decision.
2. Rule 43(2)(b) concerns a document relating to the proceedings disposed of by the decision sought to be set aside. In this case, an appropriate time for sending a document was at least before the application for permission to appeal was determined. A document could not have been sent at that time unless it already existed. The later medical report therefore could not create an ex post facto procedural irregularity.
3. The appellant had not told the Upper Tribunal that a report was expected, asked it to defer consideration, or asked it to admit evidence under rule 15(2)(a). The later report merely challenged the First-tier Tribunal’s factual conclusion on causation. Although factual findings may sometimes raise a point of law under Edwards v Bairstow [1956] AC 14 or E v Secretary of State for the Home Department [2004] EWCA Civ 49, that did not make the challenge permissible under rule 43.
4. Authorities concerning fresh evidence admitted on an appeal to set aside or vary a lower decision, including Kyriakos Karoulla t/a Brockley’s Rock v HMRC [2018] UKUT 0255 (TCC), Atkins v Co-operative Group Limited [2016] EWHC 80 (QB) and MM v Secretary of State for the Home Department [2014] UKUT 00105 (IAC), did not assist because they did not concern the restricted rule 43 jurisdiction.

The court did not need to determine the separate interests-of-justice ground. It observed obiter that later-created evidence might in an appropriate case be relevant to a procedural-unfairness allegation under rule 43(2)(d), but that issue did not arise. The appeal was dismissed.

• Court of Appeal (Civil Division) — On 2 December 2024, dismissed the appeal from the Upper Tribunal’s refusal to set aside its refusal of permission to appeal: [2024] EWCA Civ 1467.
• Upper Tribunal (Administrative Appeals Chamber) — Refused permission to appeal on 14 November 2023. On 4 December 2023, refused the rule 43 application to set aside that refusal and refused permission to appeal to the Court of Appeal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) — Dismissed the appellant’s appeal against the respondent’s decision on 6 September 2023.
• Secretary of State for Defence — Rejected the compensation claim on 2 March 2023.