Leave.EU Group Ltd v The Information Commissioner
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Lewison,Lady Justice Asplin |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] EWCA Civ 109 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal No: CA-2021-000564 (formerly C3/2021/0758) |
[2022] EWCA Civ 109
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Lewison
and
Lady Justice Asplin
Appeal No: CA-2021-000564 (formerly C3/2021/0758)
Case Nos: GIA/918/2020 & GIA/920/2020
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER
TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
UT JUDGES JACOBS, WIKELEY AND GRAY
Royal Courts of Justice, Strand
London WC2A 2LL
Leave.EU Group Limited (Leave.EU) did not appear and was not represented.
Christopher Knight (instructed by The Information Commissioner's Office) for the respondent, the Information Commissioner
Hearing date: 1 February 2022
Sir Geoffrey Vos, Master of the Rolls:
Introduction
The question before the court is what the court should do when a corporate appellant fails to appear before the Court of Appeal on the date listed for the hearing of the appeal.
In this case, the first appellant, Leave.EU, failed to attend the hearing, whether by counsel, solicitor or in person, at the time and place listed for the substantive hearing of the appeal, namely 10.30am on Tuesday 1 February 2022 in court 71 at the Royal Courts of Justice.
On 12 March 2021, the Upper Tribunal (Administrative Appeals Chamber) (the UT) gave Leave.EU (and the second appellant, Eldon Insurance Services Limited (Eldon)) permission to appeal the UT's decision dated 8 February 2021. It appears from what we were told by counsel for the Information Commissioner, Mr Christopher Knight, that after the UT's decision, Mr Arron Banks, who was apparently then the ultimate owner of both appellant companies, sold Eldon to a third party purchaser. Eldon consented to an order made on 31 January 2022 that its appeal should be dismissed.
The history of Leave.EU's non-attendance at the substantive appeal hearing is briefly as follows. (i) At all material stages of these proceedings until 26 January 2022, Leave.EU and Eldon have been represented by Kingsley Napley LLP and Mr Gerry Facenna QC. Substantive grounds of appeal and a skeleton argument in support of that appeal were duly filed. (ii) Kingsley Napley was, of course, fully aware of the date fixed for the substantive hearing of Leave.EU's appeal. It is to be inferred that Kingsley Napley informed Leave.EU of the date fixed for the substantive hearing of its appeal. (iii) On or about 26 January 2022, I ordered that Kingsley Napley should, on its application, come off the record as acting for Leave.EU. Submissions were first sought from Mr Jacobus Coetzee, who is registered at Companies House as the sole director of Leave.EU, in response to that application, but none was made. (iv) On 31 January 2022 at 14.54, the court notified Mr Jacobus Coetzee by email of the order and asked him who would be appearing for Leave.UK at the hearing listed for 1 February 2022. No response was received. Finally in this connection, the usher called Leave.EU outside court at the start of the hearing with no response, and the court adjourned at 11am for nearly half an hour, but still there was no attendance.
In these circumstances, the court asked Mr Knight for submissions as to what the court should do. Mr Knight submitted that the court should either dismiss the appeal for non-prosecution or proceed on the basis that Leave.EU relied upon its written skeleton argument and deal with the substance of the appeal having heard only Mr Knight's oral submissions. Mr Knight submitted that the Information Commissioner was neutral as to which course the court should adopt, though he emphasised the importance of the issues raised by the appeal.
Mr Knight drew our attention to CPR Part 52.20(1) which gives the Court of Appeal all the powers of the lower court (the UT in this case), and to Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (2008 Rules) which allows the UT to proceed with a hearing if a party fails to attend a hearing if it is satisfied that that party has been notified of it and it considers it to be in the interests of justice to proceed. It is to be noted also that Rule 8(3)(b) of the 2008 Rules also enables the UT to strike out proceedings if an appellant has failed to cooperate with the UT to such an extent that the UT cannot deal with the proceedings fairly and justly (c.f. CPR Part 23.11 for the power in the courts).
In addition, CPR Part 52.21.6 suggests that the Court of Appeal has no express jurisdiction to proceed with an appeal in the absence of one of the parties, but that Lewis J had held in General Medical Council v. Theodoropolous [2017] EWHC 1984 (Admin) that there was an inherent jurisdiction to do so (see also Connelly v. Director of Public Prosecutions [1964] AC 1254 per Lord Morris at page 1301, and General Medical Council v. Adeogba [2016] EWCA Civ 162 per Leveson P at [23] and [58]–[59].
At the end of the hearing, the court indicated its decision as follows: (i) that it did not consider that it would be just or appropriate to hear the substantive appeal in the absence of Leave.EU, (ii) that, in the circumstances, since the court was satisfied that Leave.EU was aware of the appeal hearing and had not attended, the appeal would be dismissed, and (iii) that we would give judgment giving reasons for those decisions (which I am now doing).
I shall first give a very brief summary of the issues in the substantive appeal, then I shall explain how Leave.EU was made aware of the substantive hearing, before explaining why we did not consider it just or appropriate either to proceed with the substantive hearing or to adjourn that hearing.
Brief summary of the issues in the substantive appeal
The UT upheld a decision of the First tier Tribunal (General Regulatory Chamber Information Rights) (the FTT) promulgated on 28 February 2020. So far as Leave UK was concerned, the FTT...
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