Kelway, R (on the application of) v The Upper Tribunal (Administrative Appeals Chamber), Court of Appeal - Administrative Court, August 20, 2013, [2013] EWHC 2575 (Admin)

Issuing Organization:Administrative Court
Actores:Kelway, R (on the application of) v The Upper Tribunal (Administrative Appeals Chamber)
Resolution Date:August 20, 2013

Case Nos: CO/2904/2013



Neutral Citation Number: [2013] EWHC 2575 (Admin)

In the High Court of Justice

Queen's Bench Division

Administrative Court


HH Judge Anthony Thornton QC

sitting as a deputy district judge of the High Court

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In the matter of an application for Judicial Review

The Queen on the application of:

Dr Peter Stuart Kelway Claimant


(1) The Upper Tribunal (Administrative Appeals Chamber)

(2) Northumbria Police Defendants


The Information Commissioner Interested Party

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The Claimant was not represented and did not appear at the hearing

The First Defendant served an acknowledgement of service stating it did not intend to be represented at the hearing

The Second Defendant and the interested party neither served an acknowledgement of service nor were represented at the hearing

And Between:

In the matter of an application for Judicial Review CO/3391/2008

The Queen on the application of:

Dr Peter Stuart Kelway Claimant


Independent Police Complaints Commission Defendant


Northumbria Police Interested Party

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The Claimant was not represented and did not appear at the hearing

The Defendant and the interested party were not represented at the hearing

Hearing 24 May and 18 July 2013



1. This synopsis does not form part of the judgment and is provided to assist the reader in providing a brief summary of the judgment.

2. The judgment is concerned with two issues:

(1) Whether the claimant Dr Kelway (``DK'') was entitled to permission to apply for judicial review of two decisions of the UT refusing him permission to appeal and to set aside that refusal decision. In the judicial review, he sought an order to set aside those two decisions. The application arises in a complex field involving a decision of the FtT (Information Rights) relating to a Freedom of Information Act (``FIOA'') request to Northumbria Police (``NP'') to disclose a statement made by a district judge to the police who were investigating a complaint to NP by DK that that district judge had committed a criminal offence involving an allegation of interfering with the course of justice.

(2) Whether, if permission was refused, DK was entitled to an order from the Administrative Court for disclosure of that document by way of an appeal under the Data Protection Act (``DPA'') from NP's refusal decision to disclose the document or under the Civil Procedure Rules (``CPR'') by way of disclosure in the judicial review proceedings DK had sought to bring against the Independent Police Complaints Commission (``IPCC'') or by way of non-party disclosure. In each basis of application, DK was seeking disclosure from NP.

(3) These applications were made even more complex by virtue of the extremely lengthy and tortuous proceedings that preceded the applications.

3. The case concerned three witness statements and certain redactions in other documents. The predominant purpose of DK's various claims and applications was to obtain disclosure of a particular witness statement of the district judge which had been provided to NP. The synopsis below refers to that statement alone but it applies to all other documents in issue in the case and applications as well.

4. The judgment addresses and decides the following matters:

(1) The time for filing a Cart claim in a claim which arose during the ``transitional period'' - being the period between the claim arising and the provisions in CPR 54.7A coming into effect - was 16 days after the decision of the UT refusing to set aside its earlier decision refusing permission to appeal - R(Sharma) v UT was followed on this point.

(2) The Cart claim was filed almost 5 months after the date it should have been filed. DK's contention that the court had extended time in two separate orders was rejected. Since no other reason, let alone no other good reason, had been provided for the delay, time for filing the claim was not extended. The unusual features of this case were such that the court decided to consider and decide the merits of the application despite dismissing it on time grounds.

5. The claim for permission arose out of DK's contentions that the UT judge had fundamentally misapplied the law in considering the application so that its refusal and setting aside decisions should be set aside and his application for permission should be reconsidered by the UT on the correct basis. This judgment accepts that the UT judge's decisions were both fundamentally flawed and cannot stand. In those circumstances, it is incumbent on the Administrative Court considering the Cart application to consider what decision the UT judge should have reached. If the Administrative Court considers that the UT should have concluded that permission should be granted, it should then address the Cart issue of whether to grant permission to apply for judicial review of the UT refusal decisions.

6. The fundamental issues that the IT had to decide were the following:

(1) Was the Information Commissioner correct in concluding that the witness statement of the district judge was the `personal data' of both DK and, separately, of the district judge whose statement it was.

(2) If the statement was either or both the personal data of DK and the district judge, was the document also disclosable under the FOIA and, if it was, should it have been disclosed under that Act by NP.

(3) If the document was not disclosable under the FOIA, how could DK challenge NP's refusal to disclose the document under the FOIA and under the DPA given that the FOIA route for challenging a refusal decision of a public authority is by way of an appeal to the Information Commissioner (``IC'') followed by a second appeal to the FtT (Information Rights) followed by, if permitted, a third appeal to the UT whereas a challenge to a DPA refusal decision is by way of an application to the court (High Court or county court at the applicant's discretion) with a second appeal, with permission, to the Court of Appeal.

(4) Was the decision of the FtT based on an error of law.

7. Two challenges were made to that decision.

(1) Firstly a procedural decision; and

(2) Secondly a legal challenge based on the correct interpretation of `personal data' where that expression appears in the DPA and, by incorporation of the DPA definition, into the FOIA.

8. The procedural challenge was against the closed procedure adopted by the FtT which prevented DK having access to the document he was seeking, prevented him from attending that part of the hearing during which the FtT heard submissions on whether it fell for disclosure from counsel acting for the IC and NP in the absence of DK and the FtT giving its reasons for dismissing his appeal in an open decision with a closed decision that discussed the particular document. The open but not the closed decision was provided to DK. As a further matter, DK challenged the UT refusal decisions in part because the UT judge did not consider the closed decision of the FtT and did not inspect the document under challenge. Furthermore, the Administrative Court was not supplied with copies of either the closed decision or the document under challenge.

9. The legal challenge to the meaning of `personal data' relied mainly on the definition allegedly provided to that phrase by the Court of Appeal in the Durrant case which it was contended was definitive and which provided a narrow definition which was applicable in this case.

10. This complex series of issues was considered sequentially. In doing so, it could be seen that DK had no reasonable prospects of succeeding in a notional appeal to the UT against the decision of the FtT. This decision was based on the following findings:

(1) The UT's jurisdiction in an appeal from the FtT (Information Rights) was unusual since the FtT had a wider jurisdiction than other FtTs in that it was entitled to review the IC's findings of fact, exercise the IC's exercise of discretion decision afresh and amend the IC's refusal notice. In consequence, the UT's jurisdiction, although limited to issues of law, was entitled to review the FtT's exercise of its jurisdiction to find facts, exercise discretion and amend a refusal notice on Wednesbury grounds.

(2) The FtT's powers to hold closed hearings and issue closed decisions were potentially capable of infringing a litigant's article 6 rights as adumbrated in recent Supreme Court and European Court of Human Rights decisions and, in an appropriate case, will need to be reconsidered as potentially not being compatible with those decisions. However, sufficient is known about the contents of the district judge's statement and as to the background that DK was not unduly or unfairly hampered in presenting his case before the IT and neither the UT nor the Administrative Court were hampered in considering the lawfulness of the IT's decision despite not seeing the closed decision or the document in issue.

(3) The IT was correct, and its decision not challengeable, that the document constituted both DK's personal data and, additionally, the district judge's personal data.

(4) In those circumstances, NP was incorrect in considering the document under the FOIA but it was no longer material to consider whether the NP's decision that the document was nonetheless not disclosable under the FOIA was correct.

(5) The IC was correct in finding that NP, as the public authority holding the document, had the exclusive obligation to determine whether the application for disclosure should be dealt with under the DPA or the FOIA and that DK's decision should be determined under the DPA.

(6) The IC was also correct in finding that the document was personal data of both parties and was not disclosable.

(7) The FtT, correctly applying the statutory definition of personal data to the documents in question, including the applicable EC directive, the applicable guidance and the Durrant decision and the applicable...

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