Dr Reuben Kirkham v The Information Commissioner

A non-party may not apply under rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 to set aside a decision disposing of proceedings to which that person was not a party. The rule’s structure, including its written-application and time-limit requirements for parties, precludes a non-party from obtaining a broader and open-ended right. A person seeking to protect an interest may instead apply to be joined as a party.

Judicial review is a remedy of last resort. Permission will ordinarily be refused where the applicant has an adequate statutory appeal remedy, even if that appeal has no prospects of success. A person who is merely interested or curious in other proceedings, without a proper interest in them, also lacks standing.

Dr Reuben Kirkham, who was not a party to 11 information-rights appeals struck out by the First-tier Tribunal, applied for those decisions to be set aside. The First-tier Tribunal dismissed the applications on their merits, while proceeding on an assumption that it could consider an application by a non-party.

Dr Kirkham sought permission to appeal that ruling and, alternatively, permission to apply for judicial review. He contended that his application formed part of separate open-justice disclosure proceedings, rather than a request to set aside the strike-out decisions. The central issues were the true character of his application, whether a non-party could invoke rule 41, and whether judicial review was available despite a statutory appeal route.

1. The application for permission to appeal was struck out as having no reasonable prospects of success, and permission to apply for judicial review was refused.

2. The substance of an application, rather than its label or the applicant’s characterisation, determines its nature. Dr Kirkham had expressly requested that the strike-out rulings be set aside. The First-tier Tribunal was therefore entitled to treat the matter as a rule 41 application, separate from his open-justice disclosure proceedings.

3. Rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 does not permit a non-party to apply to set aside a decision in other proceedings. The rule expressly imposes written-application and time-limit requirements on a party. Construing it to permit a non-party application would give a non-party more generous and potentially open-ended rights than the actual parties. The First-tier Tribunal consequently lacked jurisdiction to entertain Dr Kirkham’s applications concerning the 11 cases.

4. The First-tier Tribunal had erred by assuming, for the purpose of its merits decision, that no jurisdictional bar existed. The error was immaterial. The applications would necessarily have been refused for want of jurisdiction. A non-party concerned to protect an interest may apply under rule 9(3) to be made a party, including after proceedings have concluded, and may then pursue an appropriate remedy.

5. Judicial review was unavailable. A statutory appeal against the First-tier Tribunal’s ruling was an adequate alternative remedy. The fact that the appeal was bound to fail did not alter that conclusion. Independently, Dr Kirkham had no sufficient interest in the underlying appeals: he was neither a party nor representative, and his asserted public interest did not establish a proper interest in those proceedings.

• Upper Tribunal (Administrative Appeals Chamber): The application for permission to appeal against the First-tier Tribunal’s decision of 18 April 2023 was struck out. The alternative application for permission to apply for judicial review of that decision was refused.
• First-tier Tribunal (General Regulatory Chamber): Judge O’Connor dismissed Dr Kirkham’s applications to set aside strike-out decisions in 11 proceedings to which he was not a party.