R (Cart) v Upper Tribunal (Public Law Project and another intervening)

JurisdictionEngland & Wales
JudgeLord Justice Sedley
Judgment Date23 July 2010
Neutral Citation[2010] EWCA Civ 859
Docket NumberCase No: C1/2010/0239
CourtCourt of Appeal (Civil Division)
Date23 July 2010
The Queen (on The Application Of) Rex Cart
The Upper Tribunal
The Secretary Of State For Justice
Interested Party
Child Maintenance And Enforcement Commission
Second Interested Party
Mrs Wendy Cart
Third Interested Party
The Public Law Project

[2010] EWCA Civ 859

[2009] EWHC 3052 (Admin)

Lord Justice Laws and Mr Justice Owen

Before: Lord Justice Sedley

Lord Justice Richards


Sir Scott Baker

Case No: C1/2010/0239





Mr Richard Drabble QC and Mr Charles Banner (instructed by Messrs David Burrows) for the Appellant

Mr James Eadie QC and Mr Sam Grodzinski (instructed byTreasury Solicitor) for the First and Second Interested Parties

Mr Michael Fordham QC and Mr Tim Buley (instructed by the Public Law Project) for the Intervener by written submissions

Hearing dates: 30 June and 1 July 2010

Lord Justice Sedley

Lord Justice Sedley:

This is the judgment of the court.



The edifice of administrative and adjudicative tribunals created by the Tribunals, Courts and Enforcement Act 2007 (TCEA) is a landmark in the development of the United Kingdom's organic constitution. For the first time, a single structure has been created within which a huge variety of existing tribunals is gathered.


TCEA Section 3 provides:

The First-tier Tribunal and the Upper Tribunal

(1) There is to be a tribunal, known as the First-tier Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act.

(2) There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this Act or an other Act.

(3) Each of the First-tier Tribunal, and the Upper Tribunal, is to consist of its judges and other members.

(4) The Senior President of Tribunals is to preside over both of the First-tier Tribunal and the Upper Tribunal.

(5) The Upper Tribunal is to be a superior court of record.


Not only does s.3(5) declare the Upper Tribunal to be a superior court of record; s.25 gives the UT in the discharge of its adjudicative functions “the same powers, rights and privileges and authority as the High Court”; and by s.1 the guarantee of judicial independence contained in s.3 of the Constitutional Reform Act 2005 is extended to all tribunal members. It is accepted on all hands that tribunals must act judicially, whether adjudicating between citizen and state or between persons, and must abide by their statutory remit.


The question in this appeal is whether, despite its status, the Upper Tribunal is subject to the jurisdiction of the High Court by way of judicial review and, if it is, on what grounds. The Divisional Court (Laws LJ and Owen J) [2009] EWHC 3052 (Admin) concluded that it was amenable to judicial review, but only on grounds of pre-Anisminic jurisdictional error (which we will call outright excess of jurisdiction) or a denial of the right to a fair hearing (which we will call denial of procedural justice). Neither of these described what had happened to Mr Cart before the Upper Tribunal. The court accordingly gave him permission to apply but dismissed his application.


We have reached the view, albeit for reasons which differ in part from those of the Divisional Court, that its conclusion of law was correct. If it was, Mr Drabble concedes that his appeal must fail.


In setting out our reasons for so deciding, we are able gratefully to rely, without reproducing it, upon the exposition of the nature and content of the new tribunal structure and on much else besides contained in the judgment of Laws LJ. The judgment covers not only the present case but a second and distinct pair of applications concerning the Special Immigration Appeals Commission: these resulted in a conclusion, now unchallenged, that full judicial review was available against SIAC. In what follows we shall take the material parts of the judgment as read.



TCEA is a statute of nationwide application – necessarily, since many chambers of the FTT and UT have absorbed tribunals common to all four parts of the United Kingdom. The Outer House (Lord Glennie) on 31 March 2010 decided a petition in the case of Eba raising questions similar to those in the present proceedings. Lord Glennie had regard to the decision of the Divisional Court in the present case and came to a similar conclusion without adopting the entirety of its reasoning. The Inner House (Lord Hamilton, Lord Kingarth and Lord Brodie) heard Eba on appeal a few days before we sat to hear the appeal in Cart. Since their decision is not yet known, it has seemed appropriate to counsel and to this court, without intending the least discourtesy to Lord Glennie's cogently reasoned decision, not to embark on analysis of it but to leave this to the Inner House. It may well be that the two cases will meet in another place, but for the present they are running on parallel but separate rails.

This appeal


Before this court, in addition to hearing Richard Drabble QC on Mr Cart's behalf, we have heard James Eadie QC on behalf of the Child Maintenance and Enforcement Commission as respondent and of the Secretary of State for Justice as an interested party. The Upper Tribunal itself, properly, has taken no part. We have also read and been much assisted by the submission prepared pro bono by Michael Fordham QC and Tim Buley for the Public Law Project, which has intervened by permission of the Master of the Rolls.


Mr Eadie's argument has been that the Divisional Court was wrong to hold that judicial review of any kind lay to the UT, but that, if it was right, the power of review is as restricted as the Divisional Court held it to be. Mr Drabble, here as below, has argued principally for a continuing power of judicial review in relation to statutory functions, including adjudications on child maintenance, which in the pre-Leggatt system were judicially reviewable. It has therefore been of considerable assistance to have the Public Law Project's submissions in support of the larger proposition, which Mr Drabble supports, that the entirety of the UT's functions is reviewable by the High Court either on ordinary principles or on the principles governing second appeals.


Mr Eadie's foundational argument is that, if Laws LJ was right to describe the UT as an alter ego of the High Court, but equally if that was an overstatement of the UT's status, he was wrong to hold that the UT was in any measure subject to the supervisory jurisdiction of the High Court. Mr Fordham's answer is that, far from being an alter ego of the High Court, the UT is simply an orderly restructuring of a multiplicity of inferior tribunals which remain subject to judicial review as before.


Mr Eadie, founding principally on s.3 and s.25, as well as on its appellate and judicial functions submits that these make the UT a body of equal power and standing to the High Court, placing it logically and necessarily beyond the latter's supervisory jurisdiction. Mr Fordham submits that they do the opposite: to be a superior court of record is, on authority, not – or not necessarily – to cease to be a tribunal inferior to the High Court; and to be explicitly given a number of powers and privileges derived from those of the High Court is, he submits, to underscore that the recipient would otherwise not possess them.


But it does not follow from this that everything which is justiciable by way of judicial review of other bodies is justiciable in relation to the UT. Mr Drabble, perfectly properly, has confined his argument to the proposition that, whatever the law may be in relation to other chambers of the UT, a jurisdiction which has historically been open, with beneficial results, to judicial review ought not to lose that characteristic simply because it has been transposed into a new structure. If Mr Cart can establish this, he is not concerned about other jurisdictions within the FTT and UT structure. But, with respect, we are, because any such decision will have indeterminate effects on a considerable range of tribunal functions. For this reason we are as much, if not more, concerned with Mr Eadie's argument that judicial review of the UT as a whole can run no wider than the Divisional Court held it to do, and with Mr Fordham's counter-argument that, once reviewability is established, there is no principled basis for restricting its ambit.

The status of the Upper Tribunal


In addition to its constitutionally salient features described earlier in this judgment, the UT is in certain classes of case given a jurisdiction which replicates the judicial review jurisdiction of the High Court. Laws LJ describes these powers of the UT in detail at §14–15. It is sufficient for us to say that, in our judgment, if the structural aspects of the UT's status which are relied on by Mr Eadie cannot place it beyond the judicial review power of the High Court, this adjectival aspect cannot help. Far from investing the UT with a status equivalent to that of the High Court, it recognises that the UT lacks it and that ad hoc statutory authority is needed if it is to exercise any such powers. The same has been true for a number of years of the county court, which by s.204 of the Housing Act 1996 is given a jurisdiction which is “in substance the same as that of the High Court in judicial review” (per Lord Bingham in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, §7) without its ever having been suggested that the...

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