Why did the First-tier Tribunal (information rights) take over 2 years to decide on a permission to appeal request?
This recent judicial decision has a bit of a backstory to it by way of explanation.
On the 14th June 2015 I made an information request to Merseyside Fire and Rescue Authority for copies of two reports (CFO/101/14 and CFO/003/15). Both reports related to the costs of a new fire station (first at Greasby, then later at Saughall Massie) which included projected sale prices for fire stations at Upton and West Kirby. The two parts of the request were refused both initially by MFRA and then on a reconsideration by MFRA and I appealed that refusal decision to the regulator for information requests the Information Commissioners Office for a decision notice. A decision notice was issued on 16th February 2016 that was decision notice FER0592270.
The decision notice decided that it was an EIR request about environmental information (due to the land element of it), that MFRA had been wrong to categorise it as a freedom of information request and the Monitoring Officer Janet Henshaw (a solicitor working for MFRA) had been wrong to refuse on s.44(1)(a) FOIA. However the decision notice did allow MFRA to withhold the information (giving regulation 12(5)(e) as a reason).
I then appealed that decision to the First-tier Tribunal (Information Rights). Although not a party initially, MFRA were added later as a Second Respondent.
The matter went to a hearing on the morning of Wednesday 21st September 2016. At that hearing a consent order ending the matter was agreed by the parties present (who were myself and MFRA represented by Janet Henshaw) and costs directions were agreed. The consent order ending the matter was agreed in part because MFRA handed me at the hearing some of the information I requested and informed the judiciary at the hearing parts of the remaining information had been published on its website during the course of the appeal in late August 2016 and before the appeal started in early September 2015.
Janet Henshaw on behalf of MFRA then following the hearing submitted a costs application and schedule of costs in late September 2016. This was for £1,261.50 which related to 20 hours and 6 minutes of work by Janet Henshaw (at £59.12 an hour) and 24 minutes of typing by Suzanne Thomas (at £9.80 an hour).
£260.13 of the costs application related to 4 hours and 24 minutes of Janet Henshaw’s time in preparing the costs application.
After MFRA submitted their costs application I made representations on it.
The First-tier Tribunal (not just the First-tier Tribunal Judge but the whole three person Tribunal as per the directions) considered MFRA’s costs application and sent their decision to parties on the 6th November 2016.
The First-tier Tribunal only regarded (on a 2:1 majority decision) that only £967.57 of MFRA’s costs application had been reasonable as MFRA had been asking for their costs prior to some of the information being published on MFRA’s website.
Having regard to my means and income which were deemed modest by the First-tier Tribunal, this was further reduced to £500.
However the costs order had the wrong case number on (EA/2016/0117 as opposed to EA/2016/0054 (although EA/2016/0117 may have been a typo on a numeric keypad for EA/2015/0244 which was another costs decision being decided by the same Judge)) and also asked for costs to be payable to a body that wasn’t even a party (Merseyside Fire and Rescue Service rather than Merseyside Fire and Rescue Authority).
I then asked the First-tier Tribunal to correct the costs decision to the correct party and case number. This amended ruling was then sent to parties on the 21st November 2016.
On the 15th December 2016 Janet Henshaw addressed councillors at a public meeting of Merseyside Fire and Rescue Authority’s Policy and Resources Committee about the earlier costs decision and the judicial decision made when I submitted a costs application. You can watch video of the two minutes where it was discussed and considered below.
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On the 19th December 2016 I requested permission from the First-tier Tribunal to appeal this decision. I wasn’t expecting a decision in 2016 due to the Christmas holidays.
At some point after this First-tier Tribunal Judge Farrer QC (who normally would determine it) retired (I believe this is because he reached the mandatory retirement age of 75 at some point in 2018).
After asking for directions from the Tribunal President on who would determine the permission to appeal as the Judge had since retired, I then received a permission to appeal decision by the Judge Alison McKenna (who is also the President) on the 28th January 2019.
Although permission to appeal was refused these were the reasons given (which included an apology for the delay) and I’ve linked the case referred to:
3. The Applicant has written to me complaining that his application for permission to appeal a Decision in these proceedings (application dated 19 December 2016) was never formally determined. I have belatedly seen a copy of that application. I have not been able to find a judicial determination of it.
4. I am sorry that the Applicant did not receive a formal judicial response at the relevant time (over two years ago). It appears that it was overlooked in the context of a continuing correspondence between the Applicant and the Tribunal and a second application for permission to appeal in February 2017. I am now providing the Applicant with a Ruling on his extant application.
5. The application for permission to appeal was written in response to Judge David Farrer QC’s costs order dated 21 November 2016. The grounds of appeal make clear that the Applicant disagrees with the costs order. He alleges an error of law in the Judge’s alleged failure to consider his protected characteristics in considering his conduct in the proceedings to which the costs order relates.
6. I have considered whether the grounds of appeal are arguable. This means that there must be a realistic (as opposed to fanciful) prospect of success – see Lord Woolf MR in Smith v Cosworth Casting Processes Ltd  1 WLR 1538. I have concluded that the grounds do not have a reasonable prospect of success. Accordingly, permission to appeal is hereby refused.
This decision concludes (after nearly 3 years as it started in early 2016) the First-tier Tribunal case. However a request for permission to appeal can be renewed to the Upper Tribunal (Administrative Appeals Chamber) within 1 month.
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