Steven Edward Burton v Information Commissioner

For a strike-out application, the question is whether the appeal has a realistic, rather than fanciful, prospect of success at a full hearing. The tribunal must avoid conducting a mini-trial. In an appeal concerning whether an information request is vexatious, the assessment under Freedom of Information Act 2000, section 14 is holistic. The burden and cost of compliance may be decisive, but their significance must be assessed alongside the request’s value and purpose. It may also be relevant to consider the cost in the context of the public authority’s resources. A tribunal must fairly understand and, where appropriate, explain the legal implications of a litigant in person’s grounds without improperly expanding or improving them.

The appellant challenged the Information Commissioner’s decision notice concerning his request to the Department of Health and Social Care for information about a public consultation. The First-tier Tribunal struck out his appeal under rule 8(3)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, finding that it had no reasonable prospect of success.

The Upper Tribunal granted permission to appeal. The issues were whether the First-tier Tribunal had misunderstood the appellant’s grounds, particularly his challenge to the weight given to compliance costs in the section 14 assessment, and whether it had adequately performed its enabling and inquisitorial role towards a litigant in person.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material error of law under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. The appellant’s grounds were not confined to an argument under section 12 of the Freedom of Information Act 2000. Read fairly and in context, they included an argument that the Commissioner had applied section 14 wrongly by placing excessive weight on figures derived from section 12 and by failing to consider the cost of compliance relative to the Department’s resources. The First-tier Tribunal therefore mischaracterised the grounds, or failed adequately to explain why that argument was fanciful.
3. Section 14 requires a holistic assessment of all the circumstances. The burden imposed by answering a request must be balanced against its value and purpose. There is no statutory requirement that a request cannot be vexatious because of, or solely because of, compliance costs.
4. On a strike-out application under rule 8(3)(b), the tribunal must ask whether the appeal has a realistic prospect of success at a full hearing. A realistic prospect carries some degree of conviction. The tribunal must avoid a mini-trial and should strike out only a case that is not fit for a full hearing.
5. The Upper Tribunal was able to remake the decision because no significant factual issues required determination and the First-tier Tribunal’s fact-finding specialism was not needed at this stage. The appellant’s argument concerning the proper treatment of compliance costs was sufficiently grounded in law and evidence to warrant consideration at a full hearing. The application to strike out was therefore refused. The appeal was to proceed before the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The First-tier Tribunal decision under reference EA/2022/0243, made on 9 January 2023, was set aside and remade by refusing to strike out the appeal.
• First-tier Tribunal (General Regulatory Chamber): appeal against the Information Commissioner’s decision notice struck out under rule 8(3)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 as having no reasonable prospect of success.