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IN THE UPPER TRIBUNAL Application No: GIA/34S/2018




Respondent: The Information Commissioner

Tribunal: First-tier Tribunal (Information Rights)

Tribunal Case No: EA/2017/0019
Decision date: 9 June 2017


I refuse Mr C·~_d(1.-rpermission to appeal.


1. Permission to appeal is refused because I do not consider that it is

arguable with a realistic prospect of success that First-tier Tribunal
erred materially in law in its decision of 9 June 2017.

2. Permission to appeal was refused by Judge McKenna, Principal Judge

in the First-tier Tribunal, on 17 January 2018. Mr G::.-- _t renewed his
application for permission to appeal the Upper Tribunal and asked that
it be considered on the papers.

3. It is important to stress the jurisdiction of the Upper Tribunal on this

application. This is limited to whether there is an arguable case with a
realistic prospect of success that the First-tier Tribunal erred in law
in the decision to which it came on 9 June 2017. What that means is if
the First-tier Tribunal got the particular legal test or tests wrong, or if it
failed to consider all the relevant evidence, or if it failed to explain its
decision properly, or it breached the rules of natural justice. But if the
First-tier Tribunal does all of this correctly, it will not have erred in law
simply because that person considers the tribunal made the wrong
decision on the facts. Accordingly, it is not for the Upper Tribunal in
determining whether there was an arguable error of law to decide for
itself whether the relevant requests were vexatious.

4. Mr C-~___ . s arguments are in large part really no more than an

impermissible attempt to have the Upper Tribunal re-evaluate on the
evidence whether the requests were vexatious.

5. In the UT13 form Mr trnr~ t does, however, seek to argue two points of
law. The first is that the First-tier Tribunal was biased against him. The
second is that the First-tier Tribunal's decision, or findings of fact, were
legally irrational. The two grounds are related because Mr ~._
argues that bias is based upon the irrational failure of the First-tier
Tribunal to give equal consideration to his evidence showing that he
was correct. The submission as I see it therefore does come down to the
First-tier Tribunal being biased because it wrongly found against Mr
C"~-~~ notwithstanding the clear evidence showing he was correct.

6. The relevant test for bias is to "ascertain all the circumstances which have a
bearing on the suggestion that the judge was biased....[and] the question is
[then] whether the fair minded and informed observer, having considered the
facts, would conclude that there was a real possibility that the [judge] was
biased": per Lord Hope in Porter -v- Magill [2002] 2 AC 357 at
paragraphs 102 and 103. In this case, the relevant "circumstance", so
Mr C-==-'_~Largues, is the strength of the evidence in his favour.

7. Mr ~ is correct in saying that in an error of law jurisdiction

"[t]here must be a point at which a finding of fact is so unreasonable as to be
irrational and so on that basis the decision should also be considered
challengeable on a point of law". That, it seems to me, is an accurate
statement of the Wednesbury principle of where a revievving court may
take account of evidence in an error of law jurisdiction. However, the
test for "irrationality" is a very high bar to get over. In the context of
specialist tribunals, which the First-tier Tribunal is in the case, the test
to be applied on an application for permission to appeal is whether the
applicant (here Mr G=:"~t)has a realistic prospect of making out an
overwhelming case that no reasonable First-tier Tribunal properly
directing itself on the law and the evidence would have done, or
decided, as this First-tier Tribunal did and decided: see Murrell -v-
Secretary of State for Social Services (appendix to social security
commissioner's decision (R(I)3/84); Yeboah -v- Crofton [2002] ILR
634; BBC -v- Information Commissioner [2009] EWHC 234 (Admin);
and DWP -v- Information and Zola [2016] EWCA Civ 758; [2017] 1
8. In my clear judgment no such overwhelming case is made out by Mr
C~,,· L. His case in truth is no more than that he thinks the evidence is

overwhelmingly in his favour, but that is not the test. The application
for permission to appeal does not identify the objective evidence which
Mr ~-= alleges is so decisively in his favour, nor can I identify what
that evidence is.

9. Contrary to the argument Mr o'..... =xa:LL advances, in my judgment the

First-tier Tribunal directed itself properly as to the applicable law in
Dransfield, it was entitled to make the findings which it did on the
evidence before it, its conclusions are rational and sustainable and it
has explained adequately why the appeal did not succeed. In the result,
based on Mr C~~~u's argument it is simply unarguable that the First-
tier Tribunal was biased against him.

10. For these reasons, I refuse Mr G"-~_"t permissio'n to appeal. I do so on

the papers alone as no hearing of this application was sought. I should
add that the applicant has the right to apply for a reconsideration of
this decision refusing permission to appeal at an oral hearing before the
Upper Tribunal, usually in front of a different judge. Any such
application must be made in writing and within 14 days of the date that
this determination is sent out - see Tribunal Procedure (Upper
Tribunal) Rules 2008, rule 22(3)-(5).

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

26th April 2018