Upper Tribunal Allows Appeal on Refusal to Disclose Internal Communications

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

1

IN THE UPPER TRIBUNAL Case No. GIA/607/2012

ADMINISTRATIVE APPEALS CHAMBER

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Appellant: [redacted]

First respondent: [redacted]

Second respondent: [redacted]

First-tier Tribunal Case No. EA/2011/0147

First-tier Tribunal Decision Date 20 December 2011

DECISION

1. This appeal is from a decision of the First-tier Tribunal (General Regulatory

Chamber) (“the FTT”) given on 20 December 2011. The decision of the FTT

was to strike out the appellant’s appeal to it from the first respondent’s

decision notice given on 22 June 2011 under reference FER0327603. The

appeal was struck out under rule 8(3) of the Tribunal Procedure (First-tier

Tribunal) (General Regulatory Chamber) Rules 2009 (“the FTT Rules”).

2. The appeal is made under section 11(2) of the Tribunals Courts and

Enforcement Act 2007, leave to appeal having been granted by me on 8 July

2014. The question before me is whether the decision of the FTT involved the

making of an error of law.

3. For the reasons I give below, I allow the appeal and I set aside the decision of

the FTT on the basis that its decision involved the making of an error of law.

4. However, I proceed to re-make the decision under section 12(2)(b)(ii) of the

Tribunals Courts and Enforcement Act 2007 to the effect that the second

respondent is entitled to refuse to disclose the information requested on the

basis that the exception to disclosure under regulation 12(4)(e) of the

Environmental Information Regulations 2004 (“the EIR”) applies.

REASONS

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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Background

5. The background circumstances were not disputed, and essentially are that a

number of planning decisions were taken in relation to land in the village of

Waringstown, Co Armagh. These affected the archaeological heritage and

character of the village by permitting the development of dwelling houses on

the site of a ráth – a circular enclosure surrounded by an earthen wall used as

a dwelling in ancient times – and in the orchard garden of a listed building –

the Grange - dating from 1698.

6. Subsequent investigation by a [NAME_2]) Audit Team in 2006

found failure to follow agreed consultation procedures with the Environment

and Heritage Service (EHS), failure to make planning permission subject to

an archaeological condition as recommended by the EHS, further failure to

consult with EHS or place an archaeological condition on the planning

consent, failure to reflect stated EHS concerns in a recommendation to the [NAME_3], and failure to reflect a [NAME_3] decision,

which made consent subject to an archaeological condition, in the approval

actually issued to the [NAME_4].

7. It was subsequently established that the file which included the planning

permission to build on the site of the ráth was inexplicably missing.

Maladministration was established by the investigation of the PS Audit Team.

The Northern Ireland Audit Office was later to say that there was insufficient

evidence to conclude that fraud or deliberate wrongdoing occurred in the

case, but that there was also insufficient assurance to conclude that it did not.

8. The appellant was one of a number of local residents who, along with elected

representatives, sought an explanation for the events detailed above. In the

course of an attempt to obtain information through a Parliamentary question in

2005, it appears that incorrect information was given to a Minister by the

second respondent, causing her to mislead Parliament.

9. At a meeting on 13 October 2006 involving the appellant, an elected

representative and senior officials of Department of the Environment

(Northern Ireland) (“the second respondent”), the second respondent agreed

to seek legal advice on the issue of whether planning permission in relation to

the Grange could be discontinued. The appellant was later informed in

general terms that the advice was to the effect that it could not. A request by

an elected representative for disclosure of the advice received by the second

respondent was refused. In March 2010 the appellant then requested “a copy

of the recorded questions put to the lawyers”. That request was refused by the

second respondent. A complaint to the [NAME_1] (“the first

respondent”) led to a decision notice to the effect that the second respondent

had correctly refused the request on the basis of an exemption afforded by

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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regulation 12(4)(e) of the EIR and alternatively that regulation 12(5)(b)

applied.

10. The appellant appealed to the FTT. On 20 December 2011 the FTT struck out

the appellant’s appeal from a decision notice of the first respondent dated 22

June 2011. The appellant has now appealed to the Upper Tribunal from the

decision striking out his appeal.

11. Following a hearing on 24 June 2015, I granted leave to appeal on the

grounds that it was arguable that:

(i) the FTT had an inquisitorial obligation to look beyond the formal

grounds submitted by the appellant when addressing the issue of

whether an appeal had no reasonable prospects of success;

(ii) the FTT failed to have regard to the overriding objective of dealing with

cases fairly and justly when striking out the appeal;

(iii) the FTT had erred in its approach to regulation 12(5)(b) and/or

regulation 12(4)(e) of the EIR.

The FTT’s decision

12. The FTT’s decision was made on 20 December 2011 and was to strike out

the appellant’s appeal pursuant to rule 8(3) of the Procedure Rules. In its

conclusion, the FTT also used the phrase “Accordingly, the appeal is

dismissed”. Nevertheless, despite the latter expression, it is clear that the FTT

was, by this decision, acceding to an application for striking out made by the

first respondent dated 10 August 2011.

13. The FTT observed that the appellant did not contest that the requested

information amounted to environmental information. The FTT observed that

the appellant did not dispute that the exception at regulation 12(4)(e) of the

EIR was engaged. The FTT summarised the issue in the case as whether the

public interest in maintaining the exception outweighed the public interest in

disclosing the information.

14. The FTT recorded that the appellant had argued that disclosure of the

requested information was necessary to reassure the public that proper

procedures had been followed by the second respondent and that all the

relevant facts had been presented to its legal advisers. The appellant had also

submitted that, as the second respondent had indicated the answer given by

its legal advisers in general terms, the information ought to be disclosed in

full.

15. The tribunal further recorded that the second respondent had argued that

there was a strong public interest in protecting the ability of [NAME_5]

to consult legal advisers in confidence, that the legal advice was relatively

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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recent and not confined to a particular case and that disclosure could

therefore prejudice the second respondent in future cases.

16. The tribunal found that the first respondent had performed the balancing

exercise between the public interest in maintaining the exemption, as against

the public interest in disclosing the information, fairly and reasonably. For that

reason the tribunal held that “there is no reasonable prospect of the

appellant’s case, or part of it, succeeding.”

Relevant legislation

17. It is accepted by the parties that the information requested is environmental

information and, therefore, that the legislative regime governing the request

for information in this case is that contained within the EIR. Of particular

relevance is regulation 12, which reads as follows:

Exceptions to the duty to disclose environmental information

12. (1) Subject to paragraphs (2), (3) and (9), a public authority may

refuse to disclose environmental information requested if—

(a) an exception to disclosure applies under paragraphs (4) or (5);

and

(b) in all the circumstances of the case, the public interest in

maintaining the exception outweighs the public interest in

disclosing the information.

(2) A public authority shall apply a presumption in favour of disclosure.

(3) To the extent that the information requested includes personal data of

which the appellant is not the data subject, the personal data shall not be

disclosed otherwise than in accordance with regulation 13.

(4) For the purposes of paragraph (1)(a), a public authority may refuse to

disclose information to the extent that—

(a) it does not hold that information when an appellant’s request is

received;

(b) the request for information is manifestly unreasonable;

(c) the request for information is formulated in too general a

manner and the public authority has complied with regulation

9;

(d) the request relates to material which is still in the course of

completion, to unfinished documents or to incomplete data; or

(e) the request involves the disclosure of internal communications.

(5) For the purposes of paragraph (1)(a), a public authority may refuse to

disclose information to the extent that its disclosure would adversely

affect—

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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(a) international relations, defence, national security or public

safety;

(b) the course of justice, the ability of a person to receive a fair

trial or the ability of a public authority to conduct an inquiry of a

criminal or disciplinary nature;

(c) intellectual property rights;

(d) the confidentiality of the proceedings of that or any other public

authority where such confidentiality is provided by law;

(e) the confidentiality of commercial or industrial information

where such confidentiality is provided by law to protect a

legitimate economic interest;

(f) the interests of the person who provided the information where

[NAME_6]—

(g) was not under, and could not have been put under, any legal

obligation to supply it to that or any other public authority;

(i) did not supply it in circumstances such that that or any

other public authority is entitled apart from these

Regulations to disclose it; and

(ii) has not consented to its disclosure; or

(h) the protection of the environment to which the information

relates.

(6) For the purposes of paragraph (1), a public authority may

respond to a request by neither confirming nor denying whether

such information exists and is held by the public authority, whether

or not it holds such information, if that confirmation or denial would

involve the disclosure of information which would adversely affect

any of the interests referred to in paragraph (5)(a) and would not be

in the public interest under paragraph (1)(b).

(7) For the purposes of a response under paragraph (6), whether

information exists and is held by the public authority is itself the

disclosure of information.

(8) For the purposes of paragraph (4)(e), internal communications

includes communications between government departments.

(9) To the extent that the environmental information to be disclosed

relates to information on emissions, a public authority shall not be

entitled to refuse to disclose that information under an exception

referred to in paragraphs (5)(d) to (g).

(10) For the purposes of paragraphs (5)(b), (d) and (f), references

to a public authority shall include references to a Scottish public

authority.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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(11) Nothing in these Regulations shall authorise a refusal to make

available any environmental information contained in or otherwise

held with other information which is withheld by virtue of these

Regulations unless it is not reasonably capable of being separated

from the other information for the purpose of making available that

information.

18. The right of appeal in EIR cases derives from regulation 18 of the EIR

Regulations and Parts IV and V of the FOIA. The powers of a tribunal on

appeal are given by section 57 of the FOIA which provides:

(iv) 58 Determination of appeals.

(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in

accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion

by the Commissioner, that he ought to have exercised his

discretion differently,

the Tribunal shall allow the appeal or substitute such other notice

as could have been served by the Commissioner; and in any other

case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact

on which the notice in question was based.

19. The procedural rules governing the procedure before the FTT are the Tribunal

Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009

(“the FTT Rules”). In the present case, the following procedural rules are

relevant.

Overriding objective and parties’ obligation to co-operate with

the tribunal

2.—(1) The overriding objective of these Rules is to enable the

Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes–

(a) dealing with the case in ways which are proportionate to the

importance of

(b) the case, the complexity of the issues, the anticipated costs

and the resources of the parties;

(c) avoiding unnecessary formality and seeking flexibility in the

proceedings;

(d) ensuring, so far as practicable, that the parties are able to

participate fully in the proceedings;

(e) using any special expertise of the Tribunal effectively; and

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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(f) avoiding delay, so far as compatible with proper consideration

of the issues.

(3) The Tribunal must seek to give effect to the overriding objective

when it–

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

Striking out a party’s case

8.—(1) The proceedings, or the appropriate part of them, will

automatically be struck out if the appellant has failed to comply with

a direction that stated that failure by the appellant to comply with

the direction would lead to the striking out of the proceedings or

that part of them.

(2) The Tribunal must strike out the whole or a part of the

proceedings if the

Tribunal–

(a) does not have jurisdiction in relation to the proceedings or

that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to

another court or tribunal) in relation to the proceedings or that

part of them.

(3) The Tribunal may strike out the whole or a part of the

proceedings if–

(a) the appellant has failed to comply with a direction which

stated that failure by the appellant to comply with the direction

could lead to the striking out of the proceedings or part of them;

(b) the appellant has failed to co-operate with the Tribunal to

such an extent that the Tribunal cannot deal with the

proceedings fairly and justly; or

(c) the Tribunal considers there is no reasonable prospect

of the appellant's case, or part of it, succeeding.

(4) The Tribunal may not strike out the whole or a part of the

proceedings under paragraph (2) or (3)(b) or (c) without first giving

the appellant an opportunity to make representations in relation to

the proposed striking out.

…

The notice of appeal

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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22.—(1) An appellant must start proceedings before the Tribunal by

sending or delivering to the Tribunal a notice of appeal so that it is

received–

(a) if a time for providing the notice of appeal is set out in

paragraph (6), within that time;

(b)otherwise, within 28 days of the date on which notice of the

act or decision to which the proceedings relate was sent to the

appellant.

(1A) …

(2) The notice of appeal must include–

(a) the name and address of the appellant;

(b) the name and address of the appellant’s representative

(if any);

(c) an address where documents for the appellant may be

sent or delivered;

(d) the name and address of any respondent;

(e) details of the decision or act, or failure to decide or act, to

which the proceedings relate;

(f) the result the appellant is seeking;

(g) the grounds on which the appellant relies; and

(h) any further information or documents required by a

practice direction.

…

Leave to appeal

20. It appeared to me that this case demonstrated the tension that can exist

between the formal requirements of the procedural regulations governing

appeals and the ability of unrepresented individuals to pursue their case to a

tribunal.

21. I granted leave to appeal as I considered that it was arguable that the tribunal

had an inquisitorial obligation to look beyond the formal grounds submitted by

the appellant when addressing the issue of whether the appeal had no

reasonable prospects of success. I further considered that it was arguable

that, by exercising the power of striking out in the circumstances of this case,

it had erred by failing to have regard to the overriding objective of dealing with

cases fairly and justly.

22. In its decision the tribunal had made particular reference to the issue of “LPP”

(legal professional privilege) such as could arise from regulation 12(5)(b) of

the EIR. However, the specific exception relied upon by the second

respondent was regulation 12(4)(e), namely communication between

government Departments. I considered that it was arguable that the tribunal

had erred by conflating these issues.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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Hearing

23. I held an oral hearing of the appeal. The appellant appeared in person. The

first respondent was represented by [NAME_7] of counsel. The second

respondent was represented by [NAME_8] of counsel.

24. The appellant set out his case briefly. I am appreciative of the diligence and

efforts made by the appellant throughout this matter. However, I perceive that,

although he is an intelligent man with a professional background as an

engineer, the appellant has struggled to get to grips with the legal basis of the

decisions made in the case. His written submissions – including his grounds

of appeal to the FTT and his response to the first respondent’s application for

his appeal to be struck out – therefore understandably do not focus on the

legal points to be decided in the case. In the course of the hearing I sought to

identify the issues for determination in the appeal and to press the legal

representatives on them, while seeking not to give unfair advantage to the

unrepresented appellant. I am grateful to [NAME_7] and [NAME_8] for their

patience with this approach.

25. In her submissions, [NAME_7] took me to the appellant’s grounds of appeal to

the FTT and the first respondent’s response to these. She submitted that the

appellant did not dispute the application of regulation 12(4)(e) of the EIR,

which was the exception to the requirement of disclosure relied upon in the

case. She observed that the appellant raised matters over which the FTT had

no jurisdiction. She pointed out that one of the appellant’s grounds was

directed at the legal advice received by the second respondent, rather than

the instructions to the lawyers which was the actual information requested. It

was against this background that the first respondent had submitted to the

FTT that no reasonable ground of appeal had been set out by the appellant

26. [NAME_7] took me to the response of the appellant to the application for

striking out. Rather than address the matters raised, this reiterated the

appellant’s complaints of wrongdoing. Taken in the round, and in light of the

appellant not requesting an oral hearing of this appeal, she submitted that the

first respondent’s application and the FTT’s decision in striking out the appeal

was entirely right. She submitted that no error of law arose.

27. [NAME_7] addressed my own enquiry as to whether the FTT was entitled or

required to engage in an inquisitorial exercise of going beyond the grounds of

appeal. If so, in the particular case, did the FTT err in law? In particular, I

asked whether any appeal which involved the balance of public interest test

could properly be said to have no prospect of success on the basis that the

discretion should have been exercised differently.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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28. [NAME_7] submitted that rule 22(2)(g) of the FTT Rules required the notice of

appeal to state the grounds on which the appellant relies – in other words to

state the appellant’s case. Rule 8(3)(c) of the FTT Rules permitted striking out

where the FTT considered that there was no reasonable prospect of the

appellant’s case, or part of it, succeeding. She submitted that the requirement

of rule 22(2)(g) to state grounds “had to have some teeth”.

29. Nevertheless, [NAME_7] accepted that the FTT is inquisitorial not adversarial,

and that its proceedings should be characterised by informal and flexibility. It

would not be appropriate for a public authority in such proceedings to take

technical pleading points. However, she submitted that an appeal should not

be transmuted into an enquiry. If the tribunal had an obligation to identify

grounds of appeal on behalf of an unrepresented appellant, it could never

strike out an appeal. It was incumbent on an appellant to state exactly what

bits of a decision are being challenged. Opposing parties would otherwise not

know what case they had to answer when making formal response to an

appeal under rule 23 of the FTT Rules. I canvassed the issue of whether there

would be cases where an obvious ground of appeal had been omitted by an

appellant where the FTT could properly strike out the appeal, [NAME_7]

submitted that there was no obligation on a tribunal to decline to strike out a

case if there was an obvious point which the grounds of appeal had omitted.

30. I asked [NAME_7] for submissions about the nature of the obligations arising

from Article 6 of Directive 2003/4/EC on public access to environmental

information. She took me to Article 9 of the Aarhus Convention, to which the

European Union acceded on 25 June 1998. The obligation under Article 9

was to provide for a review procedure before a court of law or another

independent and impartial body established by law, and to provide for access

to challenge the substantive or procedural legality of any decision, act or

omission. Recital 5 of Directive 2003/4/EC indicated that provisions of

Community Law must be consistent with the Aarhus Convention. Article 6 of

the Directive made provision directly equivalent to Article 9 of the Aarhus

Convention, However, there was nothing, [NAME_7] submitted, in the Aarhus

implementation guide or the legislation which addressed procedures.

31. In the present case [NAME_7] submitted that the appellant had been granted

access to a review procedure as was required. Section 58 of the FOIA made

provision for an appeal on merits. A truncated procedure of striking out under

rule 8(3)(c) would not breach the Directive.

32. Turning to the substance of the case in hand, [NAME_7] emphasised that the

decision in issue concerned the discontinuation of consent. It was not about

the grant of planning permission which involved possible wrongdoing. That

factor was not engaged. Rather, the second respondent had agreed to seek

advice to respond to public concern. She accepted that there was an

increased public interest in transparency in such a case, but submitted that

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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that must be balanced against the potential chilling effect in other cases

where a public authority might agree to seek legal advice.

33. She submitted that the appellant had not disputed that 12(4)(e) was engaged.

Even now the statement of the FTT at paragraph 11 of its decision was not

disputed by the appellant. She generally submitted that regulation 12 of the

EIR made no specific provision for legally privileged material. However, she

submitted that any or all of regulations 12(5)(d), 12(5)(f) and 12(4)(e) could

have been engaged. She relied on OFCOM v. Information Commissioner

[2011] EUECJ C-71/10 to submit that it was necessary to consider the

cumulative grounds for refusal in addressing the public interest test where

more than one ground applies.

34. [NAME_8] further emphasised the context in which the advice in question

was sought. He submitted that context affects the public interest test. Even if

the FTT was required to consider obvious points which were not articulated in

the grounds of appeal, he submitted that no obviousness was to be found in

the present case. He submitted that striking out required a balancing exercise

to be carried out and the tribunal had done this. It was not a case of the FTT

striking out on a technical pleading point. He submitted that the FTT

approached the appeal in non-technical and non-formalistic way and made a

correct and lawful decision.

35. The appellant, understandably, did not offer a comprehensive response to the

points made. He relied on the Aarhus Convention, submitting that the first

respondent should have enabled his request for information. He further relied

on the background of maladministration.

Assessment

36. The background to this case reveals maladministration in the planning

system. The inability of the [NAME_5] who have investigated the

circumstances to rule out corruption is troubling. The issue of

maladministration, or possible corruption, in the area of planning is clearly a

matter of considerable public interest.

37. Nevertheless, the subject of the dispute in the present appeal is narrow.

Specifically, against the background of maladministration described, the

second respondent was lobbied by concerned individuals, including the

appellant, to remedy the situation. The second respondent agreed to seek

advice from its lawyers. The request for information specifically related to the

questions directed to those lawyers in seeking advice as to whether the

planning permission granted through maladministration could be discontinued

in the particular circumstances of the case. We know that the answer from the

lawyers was that it could not be discontinued. In the light of this response, the

appellant wants to know exactly what questions were asked.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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38. The first respondent found that an exception to disclosure could be relied

upon by the second respondent – namely the protection of internal

communications between government Departments under regulation 12(4)(e)

of the EIR and alternatively that regulation 12(5)(b) applied. The appellant

brought an appeal from that decision.

39. The appellant could have stated his grounds of appeal from the decision

notice of the [NAME_1] simply and concisely and in line with

the statutory powers of the FTT, saying that he wanted to appeal on the

grounds that:

(a) the notice against which the appeal was brought was not in accordance

with the law; and/or

(b) to the extent that the notice involved an exercise of discretion by the

Commissioner, that he ought to have exercised the discretion differently.

40. However, he did not do that. Conspicuously, he did not even contest the

application of the exception at regulation 12(4)(e) to his case. Rather, he

stated three specific grounds. These were that:

i) as the general conclusion of the lawyers was released, “the information

that allowed them to state it was a soundly based decision” should now be

made available;

ii) the second respondent had acted “illegally” in relation to certain

statutory functions in Waringstown as compared to a nearby village;

iii) the second respondent had taken particular actions in 2003 (i.e.

reiterating the maladministration circumstances).

41. The first ground mischaracterises the nature of the information sought. The

advice requested by the second respondent from its lawyers was to do with

the possibility of discontinuance of the planning permission, not whether the

decision to grant permission had been “soundly based”. The second and third

grounds are addressed to issues over which the tribunal had no jurisdiction at

all. On any view therefore, the appellant’s grounds of appeal were somewhat

wide of the mark.

42. Against a background of limited resources to defend appeals, it is easy to

understand why the first respondent might apply for the FTT to strike out of

the particular appeal under rule 8(3)(c). However, any exercise of the power

to strike out is subject to the overriding objective of the FTT to deal with cases

fairly and justly, and in particular to avoid unnecessary formality and seek

flexibility in the proceedings (regulation 2(2)(b)) and to ensure that parties are

able to participate fully in the proceedings (regulation 2(2)(c)).

43. The Upper Tribunal has previously considered issues arising from decisions

of the FTT to strike out appeals – notably in AM v The Information

Commissioner [2014] UKUT 239 (AAC) and AW v IC and Blackpool CC

[2013] UKUT 30 (AAC). Judge Wright has considered that the FTT errs in law

if it strikes out an appeal without an oral hearing in circumstances where an

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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oral hearing is legitimately expected. Judge Wikeley has considered that the

FTT errs in law if it strikes out an appeal where the facts are in dispute. I

agree with those judges. However, I consider that the facts in the present

case must be distinguished from those cases. Unlike AM v [NAME_1], an oral hearing has not been sought by the appellant at any

time. Unlike AW v [NAME_1] and [NAME_9], there is no

dispute about the factual circumstances in the present case.

44. The question which caused me to grant leave to appeal in this case is

whether the exercise of the power to strike out appeals should routinely be

exercised by the FTT where the grounds of appeal set out by an

unrepresented appellant are inarticulately expressed and fail to challenge the

reasons stated in the [NAME_1]’s decision which he seeks to

appeal.

45. I am mindful of the approach of the courts in Northern Ireland to cases

involving unrepresented litigants. Gillen LJ in the Court of Appeal recently said

in the case of Moffatt v Moffatt [2014] NICA 68:

“[41] This court recognises that litigants who are represented must

not be prejudiced because the opposition is unrepresented. Indeed,

we take this opportunity to endorse the views expressed by Kay LJ in

Tinkler and Another v Elliott [2012] EWCA Civ 1289 where he said at

paragraph 32:

“An opponent of a litigant in person is entitled

to assume finality without expecting excessive

indulgence to be extended to the litigant in

person. It seems to me that, on any view, the

view that the litigant in person “did not really

understand” or “did not appreciate” the

procedural courses open to him … does not

entitle him to extra indulgence … The fact that

if, properly advised, he would or might have

made a different application then cannot avail

him now. That would be to take sensitivity of

the difficulties faced by a litigant in person too

far.”

[42] Moreover a judge is entitled in many circumstances to invite the

parties to stand on their written submissions and the court papers in

circumstances where he has accorded a real opportunity to the parties

to augment the written material with oral argument.

[43] On the other hand, courts dealing with personal litigants are

well advised to identify key issues in the case wherever possible at

review stages or the trial itself and thus focus the mind of a personal

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

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litigant. The absence of any informed reference to this matter in the

appellant’s skeleton argument, the lack of any substantive oral hearing,

and the uncertain nature of the court’s determination, all persuade this

court that the issue requires further consideration before there is a

decision shutting out the appellant from the relief sought.”

46. The “matter” referred to was the application of the personal litigant for

proceedings to be admitted out of time under article 6 of the Inheritance

(Provision for Family and Dependants) Order (NI) 1979. I understand the

Court of Appeal to be saying that personal litigants are not entitled to

advantageous treatment in the face of ignorance of procedures, but that

courts can properly make some allowance for personal litigants to help them

understand relevant procedural requirements.

47. The culture of tribunals is different to courts. Generally speaking, employment

tribunals aside, tribunals are inquisitorial in their nature as opposed to

adversarial. Generally speaking, appellants who appear before tribunals do

not have the benefit of representation by lawyers. Whereas courts dealing

with personal litigants might be “well advised” to help focus their minds on key

issues, I consider that there is a greater onus on tribunals to make allowances

which will enable appellants to participate fully in their proceedings.

48. Furthermore, the specialist nature of some tribunals has led to the

development of particular practices in different jurisdictions. For example, in

cases before the special adjudicator (the equivalent of what is now the FTT

(Immigration and Asylum Chamber) dealing with asylum and human rights

appeals), the Court of Appeal in England and Wales accepted in R v

Secretary of State for the Home Department, ex parte Robinson [1997] EWCA

Civ 3090 that it was the duty of the appellate authorities to apply their

knowledge of convention jurisprudence to the facts and that they are not

limited in their consideration by the arguments actually advanced by the

appellant. Otherwise there would be a danger that the United Kingdom would

be in breach of its obligations under the UN Convention on the Status of

Refugees.

49. [ADDRESS] of Appeal qualified its approach stating at paragraph 39 that:

“… The appellate authorities should of course focus primarily on the

arguments adduced before them, whether these are to be found in the

oral argument before the special adjudicator or, so far as the Tribunal

is concerned, in the written grounds of appeal on which leave to appeal

is sought. They are not required to engage in a search for new points.

If there is readily discernible an obvious point of Convention law which

favours the applicant although he has not taken it, then the special

adjudicator should apply it in his favour, but he should feel under no

obligation to prolong the hearing by asking the parties for submissions

on points which they have not taken but which could be properly

categorised as merely "arguable" as opposed to "obvious".

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

15

50. The FTT (Social Entitlement Chamber) and, in Northern Ireland, the Appeal

Tribunal considers appeals from [NAME_10] decisions. The rules

governing both tribunals require (by regulation 22(3)(f) of the Tribunal

Procedure (First-tier Tribunal) (SEC) Rules 2008 and regulation 33 of the

[NAME_10] and Child Support (Decisions and Appeals) Regulations (NI)

1999 respectively) the appellant to state the grounds on which he relies (in

Northern Ireland “particulars of the grounds”). Nevertheless, it is expressly

stated at section 12(8)(a) of the [NAME_10] Act 1998 and at article

13(8)(a) of the [NAME_10] (NI) Order 1998 a tribunal “need not consider

any issue that is not raised by the appeal”. A clear implication is that a tribunal

is not confined to the issues raised by the formal grounds of appeal. In

[NAME_11] v Department for Social Development [2005] NICA 16 [NAME_12] said:

“[14] The terms of article 13(8)(a) of the 1998 Order make it clear that

issues not raised by an appeal need not be considered by an appeal

tribunal. The use of the phrase “raised by the appeal” should be noted.

The use of these words would tend to suggest that the tribunal would not

be absolved of the duty to consider relevant issues simply because they

have been neglected by the appellant or her legal representatives and that

it has a role to identify what issues are at stake on the appeal even if they

have not been clearly or expressly articulated by the appellant. Such an

approach would chime well with the inquisitorial nature of the proceedings

before the tribunal”.

51. [ADDRESS] of Appeal qualified its decision by accepting that there must be

limits to the tribunal’s responsibility to identify and examine issues that have

not been expressly raised, saying that issues clearly apparent from the

evidence must be considered. This approach was approved in the Court of

Appeal in England and Wales in the case of [NAME_13] v Secretary of State for

Work and Pensions [2007] EWCA Civ 495. At paragraph 28, [NAME_13] LJ said:

“I would endorse the valuable guidance given in [NAME_11]. The essential

question is whether an issue is “clearly apparent from the evidence”

(para 15 in [NAME_11]). Whether an issue is sufficiently apparent will

depend on the particular circumstances of the case. This means that

the tribunal must apply its knowledge of the law to the facts established

by them, and they are not limited in their consideration of the facts by

the arguments advanced by the appellant. I adopt the observations of

this court in R v Secretary of State for the Home Department ex p

Robinson [1998] 1 QB 929 at p 945 E-F in the context of appeals in

asylum cases. But the tribunal is not required to investigate an issue

that has not been the subject of argument by the appellant if,

regardless of what facts are found, the issue would have no prospects

of success.”

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

16

52. The framework of rights governing access to environmental information arises

from Directive 2003/4/EC, which was required to be transposed into United

Kingdom law by 14 February 2005. The EIR came into force from 1 January

2005. Appeals under the EIR to the FTT concerning environmental

information must effectively transpose the rights afforded by the Directive.

Article 6, as outlined above, requires [NAME_14] to provide a

reconsideration or administrative review by an independent and impartial body

established by law, and to ensure that applicants have access to a review

procedure before a court of law or another independent and impartial body

established by law. Specifically Article 6 provides:

Article 6

Access to justice

1) [NAME_14] shall ensure that any applicant who considers that

his request for information has been ignored, wrongfully refused

(whether in full or in part), inadequately answered or otherwise not

dealt with in accordance with the provisions of Articles 3, 4 or 5, has

access to a procedure in which the acts or omissions of the public

authority concerned can be reconsidered by that or another public

authority or reviewed administratively by an independent and impartial

body established by law. Any such procedure shall be expeditious and

either free of charge or inexpensive.

2) In addition to the review procedure referred to in paragraph 1,

[NAME_14] shall ensure that an applicant has access to a review

procedure before a court of law or another independent and impartial

body established by law, in which the acts or omissions of the public

authority concerned can be reviewed and whose decisions may

become final. [NAME_14] may furthermore provide that third

parties incriminated by the disclosure of information may also have

access to legal recourse.

3) Final decisions under paragraph 2 shall be binding on the public

authority holding the information. Reasons shall be stated in writing, at

least where access to information is refused under this Article.

53. [NAME_7] accepted that the inquisitorial nature of tribunals meant that

respondents would not seek to take technical pleading points against

unrepresented appellants. However, she submitted that the Directive would

not be breached by a procedure for striking out. The Directive is silent on

procedure. This is to be expected from a provision which might be

implemented in a variety of ways within the domestic law of the various

[NAME_14] of the European Union. However, procedure should clearly

not be such as to deny access to the basic right of a review.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

17

54. The scope of review within the terms of Article 6 of Directive 2003/4/EC was

considered by the Court of Appeal in England and Wales in [NAME_15] v

Department for the Environment Food and Rural Affairs [2011] EWCA Civ

1606. Sullivan LJ said at paragraph 23:

“Article 6 recognises the potential importance of these issues by providing

for a thorough review process in which the merits, both factual and legal,

of a decision to refuse to release environmental information will be

reconsidered afresh by independent and impartial bodies, both

administrative and legal. [ADDRESS] or other legal body conducting the

review under Article 6(2) is not reviewing the decision made by the

administrative reviewer under Article 6(1), it is reviewing “the acts or

omissions of the public body concerned.” Thus, the body conducting the

review must consider de novo the propriety of releasing the information”.

55. [ADDRESS] of Appeal in [NAME_15] considered the position of the permissibility of

reliance being placed by a public authority on exceptions which had not been

raised in an original refusal to disclose information or in the decision notice of

the [NAME_1]. [ADDRESS] of Appeal held that there was

nothing to prevent a tribunal from considering new grounds for refusing

disclosure which had not been relied upon in the decision under appeal. It

seems to me that the important point is that an appeal to the FTT is not a

reviewing process but a full de novo consideration of the issues. Despite the

procedural requirements at Part 3 Chapter 1 of the FTT Rules, the FTT is not

confined to consideration of the issues raised by the [NAME_1]’s decision, the grounds of appeal, the response to the appeal

or the reply.

56. In the particular case that I am concerned with, the tribunal acceded to an

application by the first respondent to strike out the appellant’s appeal. The

application was brought by the first respondent on the basis that the first of

the appellant’s grounds did not disclose a reasonable argument and that the

second and third grounds were addressed to the decision of the public

authority which was not within the tribunal’s jurisdiction. [NAME_7] submitted

that a technical pleading point would not be taken in inquisitorial proceedings.

However, it seems to me that the first respondent’s application to strike out

under rule 8(3)(c) was doing precisely that.

57. Rule 8(3)(c) of the FTT Rules permits striking out where the FTT considers

that there is no reasonable prospect of the appellant’s case, or part of it,

succeeding. [NAME_15] makes it clear that the FTT’s role is not to review the

decision of the [NAME_1] but to consider de novo the

propriety of releasing the information. In order to be satisfied that an appeal

had no reasonable prospect of success, in such circumstances, the FTT

would need to be satisfied that on no legitimate view of the facts or the law

could the appeal succeed.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

18

58. I had asked for submission on the question of whether “the appellant’s case”

in rule 8(3)(c) was synonymous with “the grounds on which the appellant

relies” in rule 22(2)(g). [NAME_7] submitted that it was. However, in the light of

[NAME_15], I do not accept that her submission can be correct. It seems to me that

the scope of the appellant’s case is not necessarily limited to the appellant’s

stated grounds.

59. The right of appeal in this case arises under regulation 18(1) of the EIR and

sections 57 and 58 of FOIA. There are two grounds on which an appeal may

be brought under section 58 – namely that the notice against which the

appeal was brought was not in accordance with the law and, to the extent that

the notice involved an exercise of discretion by the Commissioner, that he

ought to have exercised his discretion differently.

60. The particular case involved potential consideration of the application of

regulations 12(4)(e), 12(5)(b), 12(5)(d) and 12(5)(f). The FTT would have to

decide whether, despite the presumption in favour of disclosure under

regulation 12(2), the information requested fell within an exception set out in

regulation 12(4) or 12(5) and in all the circumstances, the public interest in

maintaining the exception outweighed the public interest in disclosing the

information. There was clear scope for argument as to whether, as a matter of

fact and law, the information fell within any or all of the potential exceptions.

More fundamentally, there was clear scope for argument about the

discretionary judgment relating to the balance of public interest in the case. It

could not have been said that on no legitimate view of the facts or law could

the appeal succeed.

61. This does not mean that regulation 8(3)(c) has no applicability. A good recent

example of an appropriate use of the power was cited to me by [NAME_7],

namely the case of [NAME_16] v [NAME_1] (EA/2015/011). This

had involved a request for information which the public authority said that it

did not hold. The prospective appellant made submissions which were

irrelevant to the question of fact as to whether the authority held the

information and submitted considerable documentary evidence which had no

bearing on the issues in the case. The appeal was struck out by the President

of the General Regulatory Chamber of the FTT, noting the overriding objective

and the need to ensure the proportionate use of tribunal resources.

62. However, in this case I observe that the appellant had not requested an oral

hearing. The case was to be determined on the documentary evidence before

the FTT. Furthermore, in the present case, despite all that I have said above,

the manner of the FTT’s disposal of the appeal was somewhat ambiguous.

The tribunal at paragraphs 14-18 set out the respective parties’ arguments. At

paragraphs 19-29 the tribunal has set out a merits-based consideration of the

potential exemptions in the case. The tribunal states, at the introduction and

conclusion of the decision, that it “allows the [NAME_1]’s

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

19

application for the appeal to be struck out pursuant to rule 8(3)(c)”. However,

the FTT further states “Accordingly, the appeal is dismissed”.

63. It seems to me that a tribunal can either strike out an appeal or it can dismiss

an appeal, but it cannot do both. Despite references to the merits of the case,

the FTT at paragraph 29 says “For the above reasons the Tribunal considers

succeeding”. Yet in doing so, it has conducted an exercise which is difficult to

distinguish from a full determination of the appeal. It appears to me that this

has defeated the purpose of striking out in terms of ensuring the proportionate

use of tribunal resources. However, by airing the conflicting arguments – and

particularly those on the balance of public interest – it also seems to me that it

implicitly contradicts its own determination to the effect that the appeal has no

reasonable prospect of succeeding.

64. For the reasons I have given, I consider that the decision of the FTT striking

out the appeal of the appellant under rule 8(3)(c) has involved the making of

an error of law. I therefore set aside the decision of the FTT.

Disposal

65. I asked for submissions on the appropriate way to dispose of the appeal. In

the light of the overriding objective, the passage of time, the fact that an oral

hearing was not requested and the fact that the arguments on the merits of

the case have been aired, I consider that I should re-make the decision of the

FTT.

Findings and conclusions

66. The background to this case involves established maladministration in a

planning decision and an unproven suspicion of fraud. However, the evidence

suggests that a review of counter-fraud arrangements has occurred in the

intervening years. Although I understand that further structural changes may

have taken place since then, the Planning Service at the time of the appeal

had been absorbed back into the Department of the Environment core. The

Office of the Comptroller and Auditor General for Northern Ireland had

commenced a review of counter-fraud strategy and policy and internal control

mechanisms to prevent and detect fraud. This included a review of the role of

the DoE Internal Audit and the Planning Policy Division’s Compliance,

Improvement and Review team, and arrangements for instilling a counterfraud

culture, including whistle-blowing. This all suggested that the issue of

possible fraud was being taken seriously and addressed.

67. Whatever steps were being taken to ameliorate these general problems, the

matter that most concerned the appellant was the local environmental impact

of the particular decision which affected his village. At a meeting on 13

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

20

October 2006 between the appellant, a local member of the [NAME_22] (MLA) and senior civil servants, the second respondent had

accepted that the findings of the PS Audit Team report were a significant

embarrassment, that checks would be carried out to assess if established

procedures had been followed, and that legal advice would be taken as to

whether the planning permission could be discontinued. The permanent

secretary of the second respondent confirmed in writing on 27 October 2006

the undertaking that advice would be sought as to whether it would be

possible to discontinue the particular grant of planning permission.

68. Having in February 2007 received the gist of the advice that planning

permission could not be discontinued, the appellant requested “a copy of the

recorded questions put to the lawyers” in March 2010.

69. The primary exemption claimed by the second respondent arises under

regulation 12(4)(e) – namely that the request involves the disclosure of

internal communications. The first and second respondents submit that this

exemption can encompass legal advice from in-house lawyers. In that

context, it is submitted that public interest arguments may be directed to the

potential for harm to internal deliberation and decision-making processes, to

providing a safe space to seek and consider legal advice and to avoiding any

chilling effect which might deter the public authority from obtaining proper

legal advice in appropriate cases.

70. The second respondent submits that regulation 12(5)(b) – that disclosure

would affect the course of justice - would have applied in any event, relying on

Department for Communities and Local Government v Information

Commissioner & WR [2012] UKUT 103 and on [COMPANY_20] & others v Babcock & Brown Global Partners [2010] EWHC 2176

at paragraph 48.

71. I accept the submission that the circumstances of the case engage regulation

12(4)(e) of the EIR. This has to be read in the light of regulation 12(8) which

provides that internal communications includes communications between

government departments. I am satisfied that internal communications include

communications between the second respondent and its legal advisers in the

[NAME_17] of the Department of Finance and Personnel.

72. Having found that the exception under regulation 12(4)(e) potentially applies,

the next question is whether, despite the presumption in favour of disclosure,

in all the circumstances of the case, the public interest in maintaining the

exception outweighs the public interest in disclosing the information.

73. It seems to me that the public benefit of disclosure of the particular request for

advice would be narrow. As submitted by the first respondent, whereas

wrongdoing or maladministration would increase the public interest in

disclosure, it cannot be accorded significant weight in this instance. Here the

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

21

maladministration concerned the decision to grant planning permission.

However, that was past. The particular request addressed the process which

led to advice about discontinuing the permission. There was no evidence of

any wrongdoing in connection with those procedures. There is no particular

reason for the public in general to doubt that the second respondent would

have acted in good faith when making the request for advice.

74. I can understand that public confidence in the second respondent may be

diminished by the circumstances of the grant of the planning permission. In

the context of addressing the possibility of discontinuing that planning

permission, disclosure might confirm to the public that the “right question” was

asked by the second respondent, and that the relevant facts were fully set out

for the lawyers, thus increasing public confidence in the second respondent.

However, the appellant himself has characterised the request for advice as

concerning whether the original decision was “soundly based”. This is a quite

different issue to the possible discontinuance of the planning permission.

Such potential confusion around the advice requested suggests that the

benefit to the public from disclosure of the questions put to the lawyers may

be restricted.

75. Alternatively, disclosure might confirm that the “wrong question” was asked

and that the relevant facts were not fully set out. This would further diminish

public confidence in the second respondent. It might prove embarrassing to

the second respondent and raise questions about the competence of officials.

In neither case would disclosure of the questions directed to the lawyers

achieve the discontinuance of the planning permission.

76. I do not accept that there is a particularly strong public benefit from disclosure.

77. On the other hand, the second respondent submits that there is a strong

public interest in protecting the ability of [NAME_5] to consult advisers

in confidence, to be able to share information fully and frankly and to seek and

obtain advice.

78. I accept that a consequence of releasing the information requested would be

that [NAME_5] might be less ready in future to offer to seek legal

advice in cases where maladministration is identified. This is because the

questions asked of the lawyers would need to candidly and fully set out all the

information the public authority held about the background to the

maladministration. I consider that if there was not protection of the

confidentiality of the information, the public authority would be inhibited from

communicating with its lawyers with absolute candour. I consider there is

significant public interest in [NAME_5] being able to seek legal advice

with the objective of correcting the consequences of maladministration. It did

not have practical benefit in the present case, but could be of practical benefit

in future.

[NAME_1] v (1) The [NAME_1], (2) Department of Environment

Northern Ireland)

[2016] UKUT 0082 (AAC)

22

79. On balance, I accept the submission that the public interest in maintaining the

80. The [NAME_18] rely upon the exception in regulation

12(5)(b). I have reservations about the potential application of regulation

12(5)(b) to this case, but I do not state a concluded view on whether that

exception applies. It is sufficient for me to consider the exception at regulation

12(4)(e) in order to determine the appeal.

81. As I have concluded that the public interest in maintaining the exception

outweighs the public interest in disclosing the information, it follows that I must

disallow the appellant’s appeal from the decision of the first respondent.

(Signed on the original) [NAME_19]

Judge of the Upper Tribunal

(Dated) 7th December 2015