Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050 (30 July 2014)

Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050 (30 July 2014)

The Tribunal Procedure Rules, properly construed, permit the exclusion of both a party and their legal representative from a closed hearing in FOIA appeals, except where the Tribunal cannot fairly and effectively discharge its investigatory function without the representative's assistance. This approach is justified by the statutory context, the investigatory nature of the Tribunal's function, and the need to protect third-party confidentiality. The FTT and UT were correct to uphold this practice, and the appellant's arguments based on open justice and natural justice do not require a more restrictive interpretation of the Rules.

Citation
[2014] EWCA Civ 1050
Parties
Appellant: Jonathan Browning; 1st Respondent: The Information Commissioner; 2nd Respondent: The Department for Business, Innovation and Skills
Jurisdiction
England and Wales
Judgment Date
30 July 2014
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal
Outcome
Appeal dismissed
Legal Topics
Freedom of Information, Closed Material Procedure, Confidential Information, Tribunal Procedure, Open Justice, Natural Justice
Administrative Law Information Law Freedom of Information Closed Material Procedure Confidential Information Tribunal Procedure Open Justice Natural Justice

Case Brief

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Parties

Jonathan Browning

Appellant

The Information Commissioner

1st Respondent

The Department for Business, Innovation and Skills

2nd Respondent

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal

Legal Issues

  1. 1 Whether the First-tier Tribunal can lawfully adopt a closed material procedure (CMP) excluding a party and their legal representative in FOIA appeals
  2. 2 Whether the Tribunal Procedure Rules permit exclusion of a legal representative willing to give an undertaking as to confidentiality
  3. 3 Whether the FTT and UT correctly interpreted and applied the relevant statutory framework and principles of open justice

Ratio Decidendi

The Tribunal Procedure Rules, properly construed, permit the exclusion of both a party and their legal representative from a closed hearing in FOIA appeals, except where the Tribunal cannot fairly and effectively discharge its investigatory function without the representative's assistance. This approach is justified by the statutory context, the investigatory nature of the Tribunal's function, and the need to protect third-party confidentiality. The FTT and UT were correct to uphold this practice, and the appellant's arguments based on open justice and natural justice do not require a more restrictive interpretation of the Rules.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal on grounds 3, 4, and 5 refused
  • FTT and UT decisions upheld