Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
Permission is given to the Secretary of State for Defence to
appeal against the decision of the First-tier Tribunal (War Pensions and Armed
Forces Compensation Chamber) dated 20 July 2011.
That decision did not involve the making of an error on a
point of law.
Pursuant to rule 5(3)(a) of the Tribunal Procedure (Upper
Tribunal) Rules 2008 (SI No 2698) and with the consent of counsel for both
parties, I shorten the time for applying to the Upper Tribunal for permission
to appeal to the Court of Appeal to 14 days from the date when this decision is
issued.
Reasons
for Decision
A.
the issue and how it arises
1.
These cases concern the case management of 16 war pension appeals
currently before the First-tier Tribunal. The claims are based on exposure to
the nuclear fallout from the tests carried out by the United Kingdom in the Pacific and Australia in the 1950s. Most are brought by the servicemen who
were exposed, but at least one has been brought by a widow. The papers in those
appeals are extensive and raise a number of issues of causation. There is also
civil litigation, which concerns me only by way of background.
2.
Tribunal Judge Stubbs has management of the appeals in the First-tier
Tribunal. In view of the content of some of the material that might be
relevant, the Secretary of State has made arrangements for some of the
representatives to be given clearance to see classified documents. Judge Stubbs
has directed that the claimants’ representatives be allowed to inspect one
document, known as Document 10. This is an index that merely identifies other
documents by title. The Secretary of State has applied for permission to appeal
against that decision.
B.
the oral hearing
3.
Upper Tribunal Judge Mesher directed an oral hearing on that issue. I
took the hearing on 19 September 2011. Mr Adam Heppinstall of counsel
represented the Secretary of State for Defence. Mr Mark James of counsel,
instructed by Rosenblatt Solicitors, represented the claimant. I am grateful to
them both for their written and oral arguments.
C.
What has happened
4.
Judge Stubbs examined a quantity of material held by the Secretary of
State. On 20 December 2010, the First-tier Tribunal wrote (no doubt on his
instruction) inviting the Secretary of State ‘to consider reviewing the documents
identified [which included Document 10] under the following headings to check
whether they have already been disclosed in the High Court proceedings and/or
these Ionising Radiation appeals and if not to consider them for relevance and
subsequent disclosure. It is possible, from your and your Counsel’s knowledge
of the issues in these appeals, that there may be other subject headings which
should also be reviewed.’ The Secretary of State replied on 10 January 2011,
agreeing in principle and suggesting some further headings. The tribunal’s
replied on 14 January 2011 that the judge would not issue a direction until he
heard from the Secretary of State.
5.
On 4 February 2011, the Secretary of State wrote: ‘We have been advised
by AWE [Atomic Weapons Establishment] that there are 283 documents indexed
under the various headings relevant to these appeals found in the cumulative
index – document 10 ...’ The letter explained that these had already been
considered and concluded: ‘We do not therefore propose to undertake any further
work with regard to these documents.’ The tribunal replied on 22 March 2011
that the judge wanted the 283 documents individually inspected for relevance,
explaining that he was not satisfied with the High Court disclosure exercise.
On 9 May 2011, the Secretary of State wrote to say that counsel had now
reviewed the list of documents and identified 31 that might be relevant. The
remainder were ‘mainly of academic or research works which do not address
matters relevant to the facts of the appeals.’ The final reply came on 9 June
2011:
We are pleased to report that
Counsel has now completed his review of documents arising out of Document 10.
We can report that no relevant documents have been identified. As initially
reported by AWE, the Document 10 index is of theoretical scientific papers and
not of documents reporting or discussing what actually happened at the material
tests.
We therefore propose to make no
disclosure arising out of this exercise and now consider this matter closed.
6.
On 8 July 2011, Judge Stubbs gave five directions, including:
Document 10 should be disclosed
to … when they inspect documents on Monday 11 July 2011 so that Rosenblatt can
make reasoned requests for disclosure of individual documents.
Rosenblatt had not until this time had clearance to inspect
restricted documents. As a result, the correspondence between the tribunal and
the Secretary of State and the inspection process undertaken by counsel had
been unknown to them. The judge refused to set aside his direction on 20 July
2011 and ordered disclosure of Document 10 to appropriate representatives of
the claimants. He gave his reasons for his directions on 22 July 2011. In
paragraph 4, he wrote that he had ‘serious concerns about the Secretary of
State’s disclosure of documents.’ In paragraph 5, he explained why his concerns
had continued. I summarise these, as Mr Heppinstall criticised them:
(a) The tribunal had already
rejected the Secretary of State’s assessment of relevance of some documents,
including Document 30.
(b) There might be other
documents that had not been disclosed by the Secretary of State for the reasons
relied on in respect of Document 30.
(c) Mr Heppinstall had not
inspected all 283 documents, only a list of them.
(d) The Secretary of State
had wanted to redact documents in the public domain.
(e) It appeared that
documents were given the highest classification for any of their contents,
despite the fact that they contained material that might be relevant and did
not justify that classification.
(f)-(i) These relate to
the Minor Trials.
7.
For completeness, Judge Bano refused permission to appeal to the Upper
Tribunal.
D.
appeals against case management decisions
8.
In order to succeed, the Secretary of State must satisfy two hurdles.
First, the Secretary of State must show that ‘the making of the decision
concerned involved the making of an error on a point of law’ (section 12(1) of
the Tribunals, Courts and Enforcement Act 2007). Second, the Secretary of State
must additionally show that it is appropriate for the Upper Tribunal to
intervene in the case management decisions of the First-tier Tribunal before
their effect on the outcome of the appeals before that tribunal is known. This
is particularly relevant in these cases, as all that Judge Stubbs ordered was
disclosure so that the claimants’ representatives could consider whether to
apply to inspect any of the documents. It is possible that they might not apply
or that the tribunal might reject their application. Challenges in such
circumstances may turn out to be unnecessary in the light of subsequent
developments.
E.
the First-tier Tribunal rules of procedure
9.
The procedure before the First-tier Tribunal is now governed by the Tribunal
Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation
Scheme Chamber) Rules 2008 (SI No 2686). The relevant provisions are common
across all chambers of the First-tier Tribunal. All but rule 23(4) are common
to both the First-tier Tribunal and the Upper Tribunal. They are:
2 Overriding objective
and parties’ obligation to co-operate with the Tribunal
(1) The
overriding objective of these Rules is to enable the Tribunal to deal with
cases fairly and justly.
(2) Dealing
with a case fairly and justly includes—
(a) dealing
with the case in ways which are proportionate to the importance of the case,
the complexity of the issues, the anticipated costs and the resources of the
parties;
(b) avoiding
unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring,
so far as practicable, that the parties are able to participate fully in the
proceedings;
(d) using
any special expertise of the Tribunal effectively; and
(e) avoiding
delay, so far as compatible with proper consideration of the issues.
(3) The
Tribunal must seek to give effect to the overriding objective when it—
(a) exercises
any power under these Rules; or
(b) interprets
any rule or practice direction.
(4) Parties must—
(a) help
the Tribunal to further the overriding objective; and
(b) co-operate
with the Tribunal generally.
5 Case management powers
(1) Subject
to the provisions of the 2007 Act and any other enactment, the Tribunal may
regulate its own procedure.
(2) The Tribunal may give a
direction in relation to the conduct or disposal of proceedings at any time,
including a direction amending, suspending or setting aside an earlier
direction.
(3) In particular, and
without restricting the general powers in paragraphs (1) and (2), the Tribunal
may—
…
(d) permit
or require a party or another person to provide documents, information,
evidence or submissions to the Tribunal or a party; …
7 Failure to comply with
rules etc.
(1) An
irregularity resulting from a failure to comply with any requirement in these
Rules, a practice direction or a direction, does not of itself render void the
proceedings or any step taken in the proceedings.
(2) If a party has failed to
comply with a requirement in these Rules, a practice direction or a direction,
the Tribunal may take such action as it considers just, which may include—
(a) waiving
the requirement;
(b) requiring
the failure to be remedied;
(c) exercising
its power under rule 8 (striking out a party’s case); or
(d) exercising
its power under paragraph (3).
14 Use of documents and information
(1) The
Tribunal may make an order prohibiting the disclosure or publication of—
(a) specified
documents or information relating to the proceedings; or
(b) any
matter likely to lead members of the public to identify any person whom the
Tribunal considers should not be identified.
(2) The Tribunal may give a
direction prohibiting the disclosure of a document or information to a person
if—
(a) the
Tribunal is satisfied that such disclosure would be likely to cause that person
or some other person serious harm; and
(b) the
Tribunal is satisfied, having regard to the interests of justice, that it is
proportionate to give such a direction.
(3) If a party (“the first
party”) considers that the Tribunal should give a direction under paragraph (2)
prohibiting the disclosure of a document or information to another party (“the
second party”), the first party must—
(a) exclude
the relevant document or information from any documents that will be provided
to the second party; and
(b) provide
to the Tribunal the excluded document or information, and the reason for its
exclusion, so that the Tribunal may decide whether the document or information
should be disclosed to the second party or should be the subject of a direction
under paragraph (2).
(4) The Tribunal must
conduct proceedings as appropriate in order to give effect to a direction given
under paragraph (2).
(5) If the Tribunal gives a
direction under paragraph (2) which prevents disclosure to a party who has
appointed a representative, the Tribunal may give a direction that the
documents or information be disclosed to that representative if the Tribunal is
satisfied that—
(a) disclosure
to the representative would be in the interests of the party; and
(b) the
representative will act in accordance with paragraph (6).
(6) Documents or information
disclosed to a representative in accordance with a direction under paragraph
(5) must not be disclosed either directly or indirectly to any other person
without the Tribunal’s consent.
15 Evidence and submissions
(1) Without
restriction on the general powers in rule 5(1) and (2) (case management
powers), the Tribunal may give directions as to—
(a) issues
on which it requires evidence or submissions;
(b) the
nature of the evidence or submissions it requires; …
(2) The
Tribunal may—
(a) admit
evidence whether or not—
(i) the
evidence would be admissible in a civil trial in England and Wales; or
(ii) the
evidence was available to a previous decision maker; or
(b) exclude
evidence that would otherwise be admissible where—
(i) the
evidence was not provided within the time allowed by a direction or a practice
direction;
(ii) the
evidence was otherwise provided in a manner that did not comply with a
direction or a practice direction; or
(iii) it
would otherwise be unfair to admit the evidence.
(3) The
Tribunal may consent to a witness giving, or require any witness to give,
evidence on oath, and may administer an oath for that purpose.
23 Responses
and replies
…
(4) The
decision maker must provide with the response—
…
(b) copies
of all documents relevant to the case in the decision maker’s possession, unless
a practice direction or direction states otherwise; …
F.
analysis of the rules of procedure
10.
Mr Heppinstall argued that there was a presumption in favour of the
Secretary of State’s disclosure of relevant documents. Any presumption must be
consistent with, and necessary given the terms of, the tribunal’s rules of
procedure. That is why I begin by analysing the provisions I have just set out.
I then turn to the details of Mr Heppinstall’s argument.
11.
Rule 23(4)(b) imposes a duty on the decision-maker (the Secretary of
State) to produce documents. It is framed in terms of possession and relevance.
The decision-maker must provide copies of all relevant documents in his
possession. Both of those components may cause difficulties.
12.
Possession. The decision-maker may not be aware that he possesses
documents. Given the vast amount of documentation in these cases and the
conditions of security under which they are held, it would be surprising if the
decision-maker had even the vaguest inkling of much of the documentation in the
Secretary of State’s possession. If the decision-maker only discovers
particular documents later, they must be copied to the tribunal. The duty is
not expressed as a continuing one, but this additional element must be implied.
Otherwise, the duty to provide ‘copies of all documents relevant to the case in
the decision maker’s possession’ would become a duty to provide ‘copies of all
documents relevant to the case in the decision maker’s possession to his
knowledge’. The decision-maker is under a duty to help further the
overriding objective and to co-operate under rule 2(4). That duty both supports
the implication into rule 23(4)(b) and provides an independent basis for a duty
that continues after the decision-maker has responded to the appeal. If any
issue of breach of duty arises, the tribunal must decide what, if any, action
it is just to take under rule 7. One response might be to use rule 15 in order
to limit the issues or evidence on which the decision-maker could rely.
13.
Relevance. The decision-maker may not realise that a document is
relevant. Relevance is determined by reference to the issues that arise for
decision. In theory, the process is linear: the claimant’s letter of appeal
identifies the issues and the decision-maker can identify the relevant
documents when responding. The practice is more organic: issues may arise,
develop or disappear in the course of the proceedings. Claimants do not, and
may not be able to, state their grounds of appeal precisely and
comprehensively. The tribunal also may identify issues in its inquisitorial
role. The result is that the relevance of documents may change as the proceedings
develop. In this context, the duty must again be a continuing one, for the
reasons I gave in relation to possession.
14.
The tribunal has power by direction under rule 5(3)(d) to order the
decision-maker to produce documents. This power may be used to particularise or
supplement the specific duties under the rules. It is particularly useful as a
way to resolve disputes about possession or relevance. Such disputes are
ultimately for the tribunal to decide. If it were a matter for the parties, the
duty under rule 23(4)(b) would be changed from a duty to provide ‘copies of all
documents relevant to the case in the decision maker’s possession’ to a duty to
provide ‘copies of all documents in the decision maker’s possession that he (reasonably)
believes to be relevant to the case’. A duty in those terms would also be
inconsistent with rule 15, which gives the tribunal power to give directions on
the issues and to admit or refuse to admit evidence.
15.
There are two particular concerns that arise in relation to some of the
material in this case: nationality security and volume. The powers under the
rules allow the tribunal to deal with both. As to nationality security, the
tribunal has power to limit disclosure under rule 14. It does not seem to have
been drafted with security issues in mind. It would be necessary to satisfy the
tribunal that disclosure to specific persons would be likely to cause harm.
That could be difficult to establish. Disclosure generally might put national
security at risk, but would disclosure to the claimants in these cases be
likely to cause serious harm to anyone? Are they likely to misuse the
information? If the rule is not wide enough to deal with such exceptional
cases, the tribunal could use its general power under rule 5(1), read in
conjunction with the overriding objective, to make appropriate directions. As
to volume, the tribunal can use its general management power under rule 5(1)
and its powers under rule 15(1) and (2) to restrict the material that it will
consider. The tribunal has to seek to give effect to the overriding objective whenever
it applies those rules. That requires the tribunal to take account of
proportionality (rule 2(2)(a)) and to avoid delay (rule 2(2)(e)).
G.
the Secretary of State’s argument and why i reject it
16.
Mr Heppinstall did not argue that the CPR should be read into the
tribunal’s rules of procedure. He did, though, argue that there was scope
within the tribunal’s procedure for a presumption on the basis of G.E.
Capital Corporate Finance Group Ltd v Bankers Trust Ltd [1995] 1 WLR 172. In
summary, the presumption is that a party’s expressed view on relevance must be
accepted unless there are grounds to believe from what that party has said in
other documents or from the circumstances of the case that it is incomplete.
17.
I reject the argument that there is such a presumption for the following
reasons.
18.
First, it is unclear when the presumption arises. Mr Heppinstall did not
argue that it arose as a result of the nature of the material involved. He
limited it to cases where there was a large volume of material. No one could
doubt that this is such a case. However, the volume of material in these cases is
unprecedented in my experience. It is not appropriate to introduce special
rules to deal with unique circumstances, especially if they can be dealt with
under the rules. That leaves open the issue of the volume that might give rise
to the presumption in other cases. Mr Heppinstall’s vague formulation leaves
that unclear.
19.
Second, the terms of the presumption are inconsistent with the Secretary
of State’s duty under rule 23(4)(b). As I have said, that duty is defined in
terms of possession and relevance. It is not defined by reference to the
Secretary of State’s knowledge of possession or opinion on relevance. The presumption
proposed would effectively change the rule to require the Secretary of State to
produce documents which the decision-maker was aware of and considered (perhaps
on reasonable grounds) to be irrelevant.
20.
Third, my second ground is exacerbated by the difficulties of rebutting
the presumption. That is difficult at best and especially difficult in cases
where national security affects the information available to the other party.
21.
Fourth, the combined effect of my second and third grounds is inconsistent
with the inquisitorial nature of the First-tier Tribunal proceedings. The
effect of the presumption, as Mr Heppinstall quite openly admitted, was to give
one party to the proceedings (at least presumptive) control over disclosure, as
in civil litigation.
22.
Fifth, the First-tier Tribunal has ample powers to control the conduct
of proceedings without the need for a presumption. I accept that there is the
potential for the effort required of parties to become disproportionate. As
Knight Bruce V-C recognised in Pearse v Pearse (1846) 63 ER 950 at 957:
Truth, like all good things, may
be loved unwisely - may be pursued too keenly - may cost too much.
The First-tier Tribunal has sufficient powers to prevent its
proceedings imposing an excessive burden on one party. In particular, it has
its general case management power in rule 5(1) and its specific powers to limit
the issues under rule 15(1) or to refuse to admit evidence under rule 15(2).
The application of those powers must take account of the overriding objective,
which embodies the Vice-Chancellor’s insight.
23.
Both counsel recognised that it is often simpler to disclose documents
even if they are irrelevant. I accept Mr Heppinstall’s argument that this is
not appropriate given the nature of the material in this case.
H.
judge stubbs’ direction and concerns
24.
I have summarised these reasons above (at [6]). Mr Heppinstall
criticised those reasons at the hearing. He said that: (a) and (b) were just a
difference of view between the Secretary of State and the tribunal; (c) was a
misunderstanding based on a badly drafted letter; (d) arose from an
administrative error; (e) was a misunderstanding; and (f)-(i) were matters for
a future directions hearing. I do not accept those criticisms. The judge was
concerned with a case management direction in circumstances where he was
unwilling to trust the Secretary of State to have made full disclosure. He
formed that view for the reasons he gave. The fact is that the incidents to
which he referred had occurred. Whatever their explanations, he was entitled to
be at least sceptical that similar problems might occur in the future.
25.
It is important not to take those concerns out of context. That context
is set, in part, by rule 2, which requires cases to be dealt with fairly and
justly. That includes the principles of natural justice and the Convention
right to a fair hearing. The claimants had been excluded from the exchanges
between the tribunal and the Secretary of State, as their representatives had
not been cleared to see the documents. It is inconceivable that the judge would
have proceeded as he had if those representatives had been entitled to see the
documents in early 2011. What he was doing was merely adding the essential
element of fairness by allowing the claimants’ representatives the same chance
as the Secretary of State to ask the tribunal to rule on particular items
indexed in Document 10. As I have said, it is the tribunal who is the ultimate
arbiter of whether documents should be disclosed or not.
I.
why i gave permission but dismissed the appeal
26.
For those reasons, I have found no error of law in Judge Stubbs’
decision. Nevertheless, I have given permission to appeal for two reasons.
First, the issue raised was one that was arguable and justified the
consideration of the Upper Tribunal. Second, as Mr Heppinstall himself
submitted, at least some of the cases are longstanding and the sooner they are
decided the better. If I had refused the Secretary of State permission, the
route of challenge would have been by way of judicial review in the Administrative Court followed by an appeal to the Court of Appeal. By giving permission and
dismissing the appeal, the route of challenge is by way of appeal to the Court
of Appeal. That means that my approach should reduce the time before the
appeals are heard by the First-tier Tribunal. That is also why, by consent, I
have shortened the time in which the Secretary of State may apply for
permission to appeal to the Court of Appeal.
|
Signed on original
on 27 September 2011
|
Edward Jacobs
Upper Tribunal Judge
|
