R (Evans) v Attorney General
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Pitchford |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] EWCA Civ 253,[2014] EWCA Civ 254 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2014 |
| Docket Number | Case No: C3/2013/1236,Case No: C1/2013/2250 |
[2014] EWCA Civ 253
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Richards
and
Lord Justice Pitchford
Case No: C3/2013/1236
and
Jonathan Swift QC and Julian Milford (instructed by the Treasury Solicitor) for the Appellants
Aidan Eardley (instructed by Guardian News and Media Ltd, Editorial Legal Services) for the First Respondent
Timothy Pitt-Payne QC (instructed by The Information Commissioner) for the Second Respondent
Hearing date: 26 February 2014
At the heart of this appeal is a short point of construction of the written reasons for a decision given by the Upper Tribunal (Administrative Appeals Chamber) ("the UT"). The question is whether by that decision the UT had disposed of a particular issue, so that it fell into legal error in purporting to deal with that issue in a subsequent decision.
The general background to the case is set out in the judgment of this court in R (Evans) v Her Majesty's Attorney General & Another [2014] EWCA Civ 254. The way in which the present appeal arises can be summarised as follows:
(1) Mr Evans made requests to a number of Government Departments for disclosure, pursuant to the Freedom of Information Act 2000 (" FOIA") and the Environmental Information Regulations 2004, of correspondence between The Prince of Wales and Government ministers. The requests were for (a) lists of such correspondence, (b) copies of each piece of correspondence, and (c) schedules of the documents relevant to the requests (with a brief description of the nature of each document, its date and whether it was being released or not).
(2) The Departments refused the disclosure sought. Mr Evans then complained to the Information Commissioner ("the Commissioner"), who concluded that the Departments were entitled to refuse disclosure and issued decision notices to that effect. Mr Evans's appeals against those decision notices were transferred to the UT.
(3) By a decision dated 18 September 2012 ("the September 2012 decision") the UT allowed the appeals: see [2012] UKUT 313 (AAC). The written reasons for the decision made clear that the UT accepted Mr Evans's arguments on the substance of what was described as "advocacy correspondence" falling within the requests and that it would substitute decision notices requiring disclosure of copies of such correspondence, subject to redactions to protect the personal data of third parties. The UT said that in the circumstances "it is not necessary for us to discuss the parties' contentions as regards lists and schedules" (paragraph 243 of the reasons, quoted in full below).
(4) On 16 October 2012 the Attorney General issued a certificate under section 53 of the FOIA, with the statutory consequence that the September 2012 decision ceased to have effect. Mr Evans's challenge to the Attorney General's certificate is the subject of the separate judgment referred to above.
(5) Following the issue of the Attorney General's certificate, Mr Evans wrote to the UT on 1 November 2012 to ask it to rule on his requests for lists and schedules. The Departments and the Commissioner opposed that course, arguing that the September 2012 decision had already disposed of the issue.
(6) By a decision dated 20 February 2013 ("the February 2013 decision") the UT held that (a) the September 2012 decision had not disposed of those parts of the appeals which concerned the requests for lists and schedules, and that it therefore had power to rule on them now; (b) it should exercise that power as a matter of discretion; and (c) it would allow the relevant parts of the appeals and substitute decision notices requiring disclosure of information of the kind requested: see [2013] UKUT 075 (AAC).
The Departments now appeal against the February 2013 decision. There are two grounds of appeal. The first ground is to the effect that the September 2012 decision had already disposed of the appeals in respect of lists and schedules and that the UT therefore erred in law in purporting to deal with that issue in February 2013. The second ground is to the effect that the decision to require disclosure of lists and schedules of the correspondence was inconsistent with the Attorney General's certificate and therefore erroneous in law.
The significance of the present appeal is greatly diminished by this court's decision in R (Evans) v Her Majesty's Attorney General & Another that the Attorney General's certificate was unlawful and should be quashed, thus reinstating the full effect of the UT's September 2012 decision. But it remains appropriate to determine whether the UT erred in imposing, by the February 2013 decision, a separate requirement to disclose lists and schedules.
The legal framework
For the wider legal framework reference can be made to the judgment in R (Evans) v Her Majesty's Attorney General & Another. The statutory provisions and procedural rules relating specifically to the determination of appeals are as follows.
Where the Commissioner has served a "decision notice" under section 50 of the FOIA rejecting a complaint, section 57 gives the complainant a right of appeal to the Tribunal against the notice. Section 58 makes provision for the determination of such appeals:
"58.(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.
…."
Although the section states that the Tribunal "shall allow the appeal or substitute such other notice as could have been served by the Commissioner" (emphasis added), it is common ground that where the Tribunal allows an appeal by an applicant for information it must allow the appeal and substitute an appropriate decision notice.
Appeals under FOIA are conducted in the UT in accordance with the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Rules"). References below are to the version of the Rules in force at the material time.
By rule 1(3), the expression "dispose of proceedings" is defined to include, unless indicated otherwise, "disposing of a part of the proceedings". Rule 40 provides:
" 40. Decisions
(1) The Upper Tribunal may give a decision orally at a hearing.
(2) Except where rule 40A (special procedure for providing notice of a decision relating to an asylum case) applies, the Upper Tribunal must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings (except a decision under Part 7 [which relates to correcting, setting aside, reviewing and appealing decisions of the Tribunal] –
(a) a decision notice stating the Tribunal's decision; and
(b) notification of any rights of review or appeal against the decision and the time and manner in which such rights of review or appeal may be exercised.
(3) Subject to rule 14(11) (prevention of disclosure or publication of documents and information), the Upper Tribunal must provide written reasons for its decision with a decision notice provided under paragraph (2)(a) unless –
(a) the decision was made with the consent of the parties; or
(b) the parties have consented to the Upper Tribunal not giving written reasons.
(4) The Upper Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.
…."
It should be noted that the "decision notice" referred to in rule 40 is conceptually distinct from the notice that the Tribunal may substitute under section 58 of FOIA for the decision notice served by the Information Commissioner, though the same document may serve both functions.
By section 13 of the Tribunals, Courts and Enforcement Act 2007 there is a right of appeal to the Court of Appeal on a point of law arising from any decision made by the UT (other than excluded decisions, which are not material here). The right may be exercised only with permission, which must be sought first from the UT. By rule 40(4) of the Rules, time for applying for permission to appeal runs, so far as relevant, from the date on which the UT sent "written reasons for the decision" to the person making the application.
The decisions
The September 2012 decision was in these terms:
"The Upper Tribunal allows the appeals by Mr Evans. A further decision identifying information to be disclosed to Mr Evans, along with the terms of substituted decision notices, will be issued pursuant to the tribunal's directions dated 17 September 2012."
The directions dated 17 September 2012 were a revised version of directions given earlier in September. So far as material, they set out a timetable for submissions relating to the redaction of personal details of individuals other than The Prince of Wales from the documents which would fall for disclosure in accordance with the closed annex to the...
To continue reading
Request your trial
-
The Queen (on the application of David Dillner) v Sheffield City Council Amey Hallam Highways Ltd (Interested Party)
...basis for making a reference to the CJEU on this issue. 81 In his submissions, Mr Jones sought to rely on a different Evans case: R (Evans) v Attorney General [2014] EWCA Civ 254; [2014] QB 855. That case concerned a different directive (Parliament and Council Directive 2003/4/EC regardin......
-
R HS v Secretary of State for the Home Department
...C2.3 Nature of the extended honour obligation 51 C2.4 The court's jailor control role: A (Somalia) 52 C3 Supreme Court decision in Evans v Attorney General 56 C3.1 Evans: HS's reliance on Lord Neuberger's principles 56 C3.2 Evans: the executive reviewability principle 58 C3.3 Evans: the bin......
-
R (TN (Afghanistan)) v Secretary of State for the Home Department MA (Afghanistan) v Same
... ... In the form with which we are concerned, section 82 gives a general right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) from an "immigration ... ...
-
Dianne Smyth v The Secretary of State for Communities and Local Government Ms Elizabeth Archer Arthur and Others (Interested Parties)
...basis for making a reference to the CJEU on this issue. 81 In his submissions, Mr Jones sought to rely on a different Evans case: R (Evans) v Attorney General [2014] EWCA Civ 254; [2014] QB 855. That case concerned a different directive (Parliament and Council Directive 2003/4/EC regardin......
-
A right royal mess: Court of Appeal quashes FOIA veto for first time
...2013 (that decision was discussed in our previous blog on this case). On appeal, in the current case – R (Evans) v HM Attorney General [2014] EWCA Civ 254 – the Court of Appeal overturned the decision of the Divisional Court. The correct approach to section 53(2) FOIA Lord Dyson, the Master......
-
The Curious Tale of the Black Spider Memos
...Information Commissioner 1 1 Regina (On the Application of Evans) v Her Majesty's Attorney General and the Information Commissioner [2014] EWCA Civ 254, [2014] 2 WLR 1334 (henceforth “Evans (Court of the English Court of Appeal quashed a certificate issued by the Attorney General under sect......