Ruth Farnsworth v Information Commissioner

On an application to strike out an appeal for having no reasonable prospect of success, a tribunal must assess a litigant in person’s materials fairly, realistically and in accordance with its enabling role. It must identify the substance of the case reasonably disclosed by those materials, even if the litigant has not expressed it in legal terms.

An appeal should not be struck out where the materials disclose a case with a realistic, rather than fanciful, prospect of showing that an information decision wrongly applied Environmental Information Regulations 2004, regulation 12(4)(d). A report may arguably be complete and self-standing even if it forms part of a wider continuing process.

Mrs Farnsworth sought environmental information from her local council concerning a planning application. She described the requested material as a report prepared by DLP Planning Ltd. The Information Commissioner treated it as a draft of the council’s eventual planning decision and upheld reliance on regulation 12(4)(d) of the Environmental Information Regulations 2004.

The First-tier Tribunal struck out her appeal under rule 8(3)(c), holding that her appeal form did not identify an error of law and sought further disclosure outside its jurisdiction. Mrs Farnsworth appealed to the Upper Tribunal. The central issue was whether the First-tier Tribunal had fairly identified the grounds reasonably apparent from a litigant in person’s appeal materials, and whether those grounds had a realistic prospect of success.

1. Appeal allowed. The First-tier Tribunal made a material error of law in striking out the appeal. Its decision was set aside and remade as a refusal of the strike-out application.

2. The First-tier Tribunal’s jurisdiction was to decide whether the Information Commissioner had wrongly applied the law. A litigant in person will commonly place before the tribunal the reasons why they consider a decision wrong, rather than formulate legal grounds precisely. On a rule 8(3)(c) application, the tribunal must examine those materials reasonably and realistically, with fairness and justice in mind, to determine whether they disclose a realistic case.

3. The tribunal failed to do so here. Although the brief wording in the appeal form did not itself identify a legal error, it incorporated extensive notes. Those notes reasonably disclosed Mrs Farnsworth’s case that the DLP report was a distinct and complete report supplied by an external planning consultant, rather than an unfinished draft of the council’s published decision. Her adoption of the Commissioner’s description of the material as a draft in one email did not amount to a concession on that issue.

4. That case engaged regulation 12(4)(d) of the Environmental Information Regulations 2004. The approach in Highways England Company Ltd v IC and Manisty [2019] AACR 17 showed that the exception may not apply where a piece of work is complete in itself, even though it forms part of further work. The available evidence gave Mrs Farnsworth’s argument sufficient evidential and legal foundation to be realistic rather than fanciful. The First-tier Tribunal would have to determine the competing factual accounts at a full hearing.

5. The error was material. The Upper Tribunal was in as good a position as the First-tier Tribunal to decide the strike-out question, and a remittal was unnecessary. Applying the caution against a mini-trial, it remade the decision and refused to strike out the appeal.

• Upper Tribunal (Administrative Appeals Chamber): allowed Mrs Farnsworth’s appeal, set aside the First-tier Tribunal’s strike-out decision for material error of law, and remade it by refusing to strike out the appeal.
• First-tier Tribunal (General Regulatory Chamber): on 5 July 2023, under reference EA/2023/0045, struck out the appeal against the Information Commissioner’s decision notice as having no reasonable prospect of success.