Paul John Calvert v Information Commissioner & Anor

A tribunal must ensure that an unrepresented party has a fair opportunity to answer material evidence introduced after that party’s response. It is procedurally unfair to treat such evidence as unchallenged merely because the party did not seek permission to respond or ask for an oral hearing, particularly where the party may have health difficulties.

Where that unfairness materially influenced the decision, the decision must be set aside. A fresh hearing is ordinarily required because the outcome of a procedurally unfair trial cannot safely be reconstructed. Remittal is appropriate where resolving the appeal requires findings on disputed evidence and specialist fact-finding expertise.

The appellant sought information from Northumbria Police. The police relied on section 12(1) of the Freedom of Information Act 2000, maintaining that compliance would exceed the appropriate cost limit. The Information Commissioner upheld that position.

The First-tier Tribunal, in decision EA/2022/0201, dismissed the appellant’s appeal. It accepted evidence in a second witness statement from the police and treated it as unchallenged.

The appellant appealed to the Upper Tribunal. The central issue was whether the First-tier Tribunal had acted fairly in treating the later evidence as unchallenged and in deciding the case without an oral hearing.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. It was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

2. The First-tier Tribunal acted unfairly by treating the police witness’s second statement as unchallenged. The appellant was unrepresented and appeared to have health difficulties. The procedural directions did not clearly give him a further right of reply after that statement, and he could not fairly be treated as having accepted it merely because he did not apply to respond or alter his earlier preference for a paper determination.

3. The error was material. The First-tier Tribunal’s treatment of the evidence as unchallenged influenced its rejection of the appellant’s claimed expertise and its conclusion that the police estimate was reasonable. As explained in Serafin v Malkiewicz [2020] UKSC 23, a result reached through an unfair trial cannot safely be treated as reliable. The fair remedy was a fresh determination.

4. The case was remitted to a freshly constituted First-tier Tribunal panel for reconsideration in all respects. The disputed evidence about extracting information from the police computer system required fact-finding and assessment of inconsistent evidence. The remitted tribunal was directed to consider submissions on an oral hearing and reasonable adjustments, consistently with the overriding objective.

• Upper Tribunal (Administrative Appeals Chamber) Allowed the appeal, set aside the First-tier Tribunal decision, and remitted the case to a freshly constituted panel.
• First-tier Tribunal (General Regulatory Chamber) In decision EA/2022/0201, issued on 22 June 2023, dismissed the appellant’s appeal against the Information Commissioner’s decision notice.