The Information Commissioner v The Secretary of State for Health and Social Care & Anor

A challenge to an interlocutory case-management direction will justify permission to appeal only where there is a material error of law and a realistic prospect of success. Appellate intervention is confined to a direction that is plainly wrong or unjustifiable, rather than merely different from the direction the appellate tribunal would have made.

The procedural rules do not impose a general duty to give reasons for a direction requiring a party to prepare a hearing bundle. The required extent of reasons for an ancillary procedural decision is context-sensitive. Where an outcome is not aberrant, an absence of express reasons will not be material; reasons may be inferred from the parties’ competing submissions and may in any event be supplied by a review decision. The overriding objective requires a balance of all relevant considerations, not a comparative-resources inquiry in every case.

The Information Commissioner sought permission to appeal against a First-tier Tribunal direction in a Freedom of Information appeal. The direction required the Commissioner to prepare the open hearing bundle and the Department of Health and Social Care, as appellant in the substantive appeal, to prepare the closed bundle.

The Commissioner contended that the direction was unreasonable, contrary to the overriding objective, and unsupported by reasons. The First-tier Tribunal had refused review or permission to appeal, explaining that its direction accorded with the General Regulatory Chamber’s Bundles Guide.

The Upper Tribunal considered whether the proposed appeal disclosed a material and arguable error of law in an interlocutory case-management decision.

1. Permission to appeal was refused. The proposed appeal had no realistic prospect of success on a point of law. The threshold for appellate interference with case-management decisions is high. The appellate tribunal must find the decision plainly wrong or unjustifiable, not simply disagree with it.

2. The First-tier Tribunal’s allocation of responsibility for the open bundle was not arguably unreasonable. The General Regulatory Chamber’s Bundles Guide established a usual, though not immutable, expectation that the regulator prepares the open bundle. The Commissioner’s status as a statutory guardian of freedom of information did not make the allocation irrational. Nor did the Department’s resources, its possession of some documents, its choice to appeal, or an analogy with judicial-review procedure establish that the direction was plainly wrong.

3. The direction was not arguably contrary to rule 2 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Resources are relevant to proportionality, but the overriding objective requires a multi-factorial balance. It did not require a comparative inquiry into the parties’ budgets or compel a different result between a central government department and the Commissioner.

4. There was no general statutory obligation to give reasons for this interlocutory direction. Rules 6 and 38 distinguish between a party’s obligation to state reasons for seeking a direction and the tribunal’s discretionary power to give written reasons for decisions which do not finally dispose of an issue. The required depth of reasons for an ancillary procedural decision is context-dependent. Reasons may be necessary where an interlocutory outcome appears aberrant, but this direction did not.

5. The parties were a tutored audience who knew the competing positions. It was therefore inevitable that the First-tier Tribunal had preferred the Department’s submissions. In any event, if the absence of express reasons had been an error, the review decision of 2 January 2025 cured it. Ground 1 and Ground 2 were both unarguable.

• Upper Tribunal (Administrative Appeals Chamber): refused the Information Commissioner permission to appeal in [2025] UKUT 177 (AAC).
• First-tier Tribunal (General Regulatory Chamber): on 29 November 2024 directed the Information Commissioner to prepare the open bundle and the Department to prepare the closed bundle; on 2 January 2025 refused review or permission to appeal.