Kirkham v Information Commissioner (Recusal and Costs)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2018] UKUT 65 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Tribunal procedure,practice,Information rights - Information rights: practice,procedure,practice - costs,practice - fair hearing,Wikeley,N |
| Date | 01 March 2018 |
| Published date | 14 March 2018 |
Kirkham v Information Commissioner (Recusal and Costs) [2018] UKUT 65 (AAC)
RULINGS OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS
CHAMBER) ON APPLICATIONS FOR RECUSAL AND COSTS
1. The application by Dr Kirkham that I recuse myself is dismissed.
2. The application by Dr Kirkham for costs is dismissed.
REASONS FOR RULINGS
Introduction
1. Dr Kirkham has made a number of applications consequential upon my decision
in Kirkham v Information Commissioner [2018] UKUT 6 (AAC) (previously known
under file reference GI/1321/2017, and from now on referred to in these reasons as
Kirkham v IC [2018])). The background was that Dr Kirkham had e-mailed the office
of the Senior President of Tribunals a FOIA request for certain information about
judicial training. He was not satisfied with the response and complained to the
Information Commissioner, who sent Dr Kirkham a letter declining to pursue the
matter on the basis that the Senior President was not a “public authority” under FOIA.
Dr Kirkham argued this letter was a decision notice that gave him the right of appeal
to the First-tier Tribunal. The appeal became the subject of a discretionary transfer to
the Upper Tribunal (Administrative Appeals Chamber); accordingly there was no
actual First-tier Tribunal decision on the purported appeal. In particular Dr Kirkham
has now made applications that:
1. I set aside my decision in Kirkham v IC [2018] “on the basis of persistent and
material inaccuracies and mischaracterisations of the case in hand”;
2. I recuse myself from dealing with his application for costs in Kirkham v IC
[2018];
3. he should be awarded costs in Kirkham v IC [2018] in the light of the
Information Commissioner’s conduct of the appeal when it was before the
First-tier Tribunal.
2. I have dealt with the first application (to set aside my substantive decision) in a
separate ruling dated 16 February 2018. I decided there was no procedural
irregularity in the Upper Tribunal proceedings in Kirkham v IC [2018] within the
meaning of rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI
2008/2698; ‘the 2008 Rules’). As Dr Kirkham was in reality challenging the reasoning
in that decision, I treated his application in parallel (under rule 48) as an application
for permission to appeal to the Court of Appeal (under rules 44 and 45). I refused that
application for the reasons set out in a further ruling also dated 16 February 2018.
3. Before moving to consider the remaining two applications, it is important not to
lose sight of the fact that Dr Kirkham lost the appeal before the Upper Tribunal in
Kirkham v IC [2018]. To be accurate, his purported appeal was struck out. The
Information Commissioner had made an application in those proceedings that the
appeal be struck out for want of jurisdiction under rule 8(2)(a) of the 2008 Rules. I
acceded to that application, essentially as I found that Dr Kirkham’s information
request had indeed been made to the Senior President of Tribunals, who is not a
“public authority” for the purposes of the Freedom of Information Act 2000 (FOIA). In
those circumstances the question of whether the Information Commissioner’s letter of
Kirkham v Information Commissioner (Recusal and Costs) [2018] UKUT 65 (AAC)
12 April 2017 (ref FS50664994) constituted a “decision notice” for the purposes of
sections 50(3)(a) and 57 of FOIA did not fall for decision.
4. I therefore consider the recusal and the costs application in turn. Obviously if I
were to decide to recuse myself then the costs application would have to be
transferred to another Upper Tribunal Judge.
The recusal application
The background to the application for recusal
5. The proceedings in Kirkham v IC [2018] have already spawned a host of satellite
proceedings. The first contact that Dr Kirkham made with the First-tier Tribunal
General Regulatory Chamber office (‘the GRC office’) about his intention to lodge an
appeal seems to have been on 22 April 2017. The GRC office queried the status of
this appeal direct with the Information Commissioner’s office on 24 April 2017,
without copying in Dr Kirkham. In Kirkham v IC [2018] I observed that this was,
putting it mildly, inappropriate. An exchange of e-mail communications followed
between Dr Kirkham and Mr Sowerbutts, a solicitor in the Information
Commissioner’s office. The appeal was formally registered by the GRC office under
reference EA/2017/0083 on either 25 or 26 April 2017.
6. On 4 May 2017 the case was transferred from the First-tier Tribunal to the Upper
Tribunal, with the concurrence of both Chamber Presidents, under rule 19(3) of the
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
(SI 2009/1976; ‘the 2009 Rules’). Judge Lane’s ruling expressly recorded that “it is in
the interests of the overriding objective to direct that the case be transferred to and
determined by the Upper Tribunal”.
7. On 5 May 2017 Dr Kirkham applied to the First-tier Tribunal for an extension of
time to make a costs application against the Information Commissioner. I put to one
side the plainly arguable point that, as the case had by then been transferred to the
Upper Tribunal, there were no extant proceedings before the First-tier Tribunal in
which to make any such application.
8. On 5 May 2017 the GRC registrar refused Dr Kirkham’s application to extend
time to make a costs application. Dr Kirkham asked for that ruling to be reconsidered
by a judge.
9. On 10 May 2017 Judge Peter Lane (as he then was) in effect refused to
reconsider that ruling by the GRC registrar. His ruling, communicated to Dr Kirkham
by the GRC office by e-mail, was admirably short and to the point: “The case has
been transferred to the Upper Tribunal. You should address any matters to that
Tribunal.”
10. Dr Kirkham then applied for judicial review in the Upper Tribunal of both the
GRC registrar’s ruling and the ruling by Judge Lane. Those proceedings were issued
under the Upper Tribunal reference numbers JR/1615/2017 and JR/1617/2017
respectively. On 8 June 2017 I issued a stay in both proceedings pending the
outcome of the substantive appeal in Kirkham v IC [2018].
11. With the benefit of hindsight, it might have been better if I had treated both those
applications as applications for permission to appeal the two rulings in question and
then issued a stay. I say that as, in principle, First-tier Tribunal case management
decisions are plainly appealable so long as they are not by statute “excluded
decisions” (see LS v LB of Lambeth [2010] UKUT 461 (AAC); [2011] AACR 27). As
Dr Kirkham had a right of appeal to the Upper Tribunal against the decisions of 5 and
To continue reading
Request your trial
5 cases
-
Leighton v The Information Commissioner (No.2)
...City Estates Ltd [2005] 1 All ER 723, and see further the discussion in Kirkham v Information Commissioner (Recusal and Costs) [2018] UKUT 65 (AAC)). The rationale for a robust judicial approach was explained clearly by Chadwick L.J. in Dobbs v Triodos Bank N.V. [2005] EWCA Civ 468, in whic......
-
Crossland v Information Commissioner (Recusal, Strike Out and Excluded Decisions (Judicial Review)) [2020] UKUT 264 (AAC)
...of a judge is clear. I considered the authorities in my earlier decision in Kirkham v Information Commissioner (recusal and costs) [2018] UKUT 65 (AAC), as ‘The principles governing recusal by a judge 14. The law governing apparent bias is well known. The test is “whether the fair-minded an......
-
CH v Secretary of State for Work and Pensions (JSA) (No.2)
...do so. In doing so I have applied the principles summarised in my decision in Kirkham v Information Commissioner (Recusal and Costs) [2018] UKUT 65 (AAC) at paragraphs 42. By way of context, the claimant appears to have taken great exception to my earlier ruling that he should be listed in ......
-
Moneybrain Limited v The Financial Conduct Authority [2022] UKUT 00269 (TCC)
...It was helpfully summarised by Upper Tribunal Judge Wikeley in Kirkham v Information Commissioner (recusal and costs) [2018] UKUT 65 (AAC) as “14. The law governing apparent bias is well known. The test is “whether the fair-minded and informed observer, having considered the facts, would co......
Request a trial to view additional results