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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

1st Tier Judge making deciding whether error in law on their own decision

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Patrick Hill
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Now I think, but I might be wrong, that I read something on this worthy site about the legitimacy, or otherwise, of a 1st tier judge deciding whether he or she had erred in point of law in their own decision.  This as a consequence of an application for leave to appeal to an Upper Tribunal.  Does anyone have any memories of, or opinions about this please?

Thank you.

Patrick

NeverSayNo
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Patrick Hill - 22 May 2014 09:06 AM

Now I think, but I might be wrong ..... does anyone have any memories of, or opinions about this please?

Thank you.

Patrick

Was this what you were thinking of?

http://www.rightsnet.org.uk/forums/viewthread/6159/

Patrick Hill
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Tony Bowman - 22 May 2014 10:28 AM

I can’t find anything to suggest a tribunal judge cannot consider an application for leave against his or her own decision. Except in the annotation to reg 39 TP rules which refers to a practice statement saying a salaried judge will consider an application where the presiding judge was fee-paid.

I don’t see that it really matters anyway. Whatever the circumstances, it’s very unusual in my experience for the FTT to grant leave unless there’s a blindingly obvious reason, in which case we tend not to get to UT at all since the decision will be revised or set-aside by the FTT.

Thank you for this.

However, I’m afraid that I must disagree with you with regard to it not really mattering.  In my experience there have been many occasions where permission to appeal to a UT has been refused by a FT judge only to allowed, for the same reasons, by the UT.  In this case, for example, it is argueable that the decision given by the FT appeal failed completely to address the fundemental point at appeal.  The FT judge, as it their right, did not agree and refused leave.  In such a case the error in point of law is not “blindingly obvious”, at least to the FT judge, but it may be to the UT.  I don’t think I’m alone in getting permission for leave to appeal further after a refusal from a first tier judge.  But maybe I’m mistaken.

Patrick Hill
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PAW - 22 May 2014 10:33 AM
Patrick Hill - 22 May 2014 09:06 AM

Now I think, but I might be wrong ..... does anyone have any memories of, or opinions about this please?

Thank you.

Patrick

Was this what you were thinking of?

http://www.rightsnet.org.uk/forums/viewthread/6159/

Thank you for this, it provides the answer to my question.  As I say, a mosty worthy site Rightsnet; what would we do without it?

Patrick

nevip
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“I don’t think I’m alone in getting permission for leave to appeal further after a refusal from a first tier judge. But maybe I’m mistaken”.

It happens all the time.  A salaried judge once told a TUG that FT judges will usually only consider the point(s) raised on the application whereas UT judges will dig far deeper.

Patrick Hill
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Tony Bowman - 22 May 2014 03:09 PM
Patrick Hill - 22 May 2014 10:45 AM
Tony Bowman - 22 May 2014 10:28 AM

I can’t find anything to suggest a tribunal judge cannot consider an application for leave against his or her own decision. Except in the annotation to reg 39 TP rules which refers to a practice statement saying a salaried judge will consider an application where the presiding judge was fee-paid.

I don’t see that it really matters anyway. Whatever the circumstances, it’s very unusual in my experience for the FTT to grant leave unless there’s a blindingly obvious reason, in which case we tend not to get to UT at all since the decision will be revised or set-aside by the FTT.

Thank you for this.

However, I’m afraid that I must disagree with you with regard to it not really mattering.  In my experience there have been many occasions where permission to appeal to a UT has been refused by a FT judge only to allowed, for the same reasons, by the UT.  In this case, for example, it is argueable that the decision given by the FT appeal failed completely to address the fundemental point at appeal.  The FT judge, as it their right, did not agree and refused leave.  In such a case the error in point of law is not “blindingly obvious”, at least to the FT judge, but it may be to the UT.  I don’t think I’m alone in getting permission for leave to appeal further after a refusal from a first tier judge.  But maybe I’m mistaken.


You misunderstood or I didn’t explain myself properly :-

It doesn’t matter (which judge refuses the initial application) because, as you say (I didn’t think it needed saying - we do this all the time), you renew the application direct to the UT anyway. Nevip’s link

I certainly was not suggesting that it just doesn’t matter that your application was refused. Im surprised you read that from my response.

My “blindingly obvious” refers to cases which are overturned by the FTT at the first stage because the error is extremely obvious - such as using the wrong reg, confirmation that evidence was missing, etc.

Good morning,

Maybe I misunderstood; maybe you didn’t explain yourself properly, but more likely a little bit of both.  Nonetheless, I do see a flaw in a FT judge making error in law decisions about their own cases.  The perception, whether justified or otherwise, might be that an appellant will be left wondering if the refusal of permission has been tainted by the connection. 

Thank you Tony.

Patrick

nevip
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“The perception, whether justified or otherwise, might be that an appellant will be left wondering if the refusal of permission has been tainted by the connection”. 

While that’s true, because the remedy is to apply directly to the UT the procedure will stand.

Patrick Hill
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nevip - 23 May 2014 09:22 AM

“The perception, whether justified or otherwise, might be that an appellant will be left wondering if the refusal of permission has been tainted by the connection”. 

While that’s true, because the remedy is to apply directly to the UT the procedure will stand.

The remedy is as you say.  But wouldn’t that remedy remain the remedy should suspicion occasioned by the connection be removed by a simple change in procedure?

Thank you everyone.

Patrick.

Mike Hughes
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Chairs used to grant leave to appeal, if you had the nerve to ask, immediately after a refusal. Not sure why it would be more of an issue if done in writing.

Certainly recent TUGs suggest that routine refusal of applications for leave to appeal is a far bigger issue than which judge routinely refuses.

Mike Hughes
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Patrick. Think you may need to change your job title on here by the way!

shawn mach
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hi patrick ...

you can re-register in your new job @ http://www.rightsnet.org.uk/register ... only takes a minute or two

cheers - shawn

Patrick Hill
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shawn - 27 May 2014 12:31 PM

hi patrick ...

you can re-register in your new job @ http://www.rightsnet.org.uk/register ... only takes a minute or two

cheers - shawn

Well dear Shawn, it may take a minute or two for some people but, despite having many, many attempts at this, it ain’t happening for me.

Patrick

MNM
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I have yet to come accross a UT/Commissioner decision where the issue of the same Judge refusing permission has been discussed.  If anyone knows of a case please post. 

nevip
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From the Tribunal Benchbook 2006.  I’m not aware that this has been overtaken. 

12. As stated above a District Chairman will deal with most applications for leave to
appeal but if considering an application for leave to appeal against one of your
decisions try to be objective. Do not take it personally but consider judicially whether
a point of law has been raised and if so whether it is arguable. It is not necessary to
consider whether the appeal is likely to succeed or fail, nor is it usually either
necessary or desirable to give reasons for the decision to grant or refuse leave.
There are however exceptions to this, e.g. if the grounds of appeal include
allegations of bias or unfairness of some kind and/or allege some particular incident
at the hearing; in these situations your comments on the allegations could be added
to the decision.

Martin Williams
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This happens in almost every process of appealing where appeal lies on an error of law basis. Here are some examples:


- if you are in the High Court on a JR and you lose then the judge who dealt with the case considers whether to grant permission.

-The Court of Appeal does the same when considering permission to the Supreme Court.

-Similarly it happens on appeal from the UT to the Court of Appeal.

You can always renew the application before the Upper Tribunal….

Ft Judges do often grant permission to appeal against their own decisions as well.

I really don’t think this is an issue worth complaining about- in some ways it makes sense to have the Judge who dealt with the case and is familiar with it be the one who considers permission-

and in social security, we do also have the protection that these decisions are only allowed to be made by the relatively senior members of the FtT Judiciary.

I get worried by these threads as it is important as welfare rights advisers (for when we represent future clients etc) that we are seen to believe that the FtT judiciary are in fact capable of acting…. judicially.

I don’t think we do ourselves as a group any favours (and that means we don’t do our clients any favours) if in a public forum we continually question the ability of any judge to deal fairly with this sort of thing and don’t note that it is an absolutely common practice throughout the legal system…..

Sorry- don’t want to have a go at those who clearly have a different view but I thought it was perhaps helpful to suggest.

Paul_Treloar
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We have had FtT decisions set aside on a fairly routine basis in the past on initial application to HMCTS, for a range of reasons, some procedural, some on the facts and findings etc. Of course, an equally significant number aren’t granted and so the direct application to the Upper Tribunal is then needed.

However, having the initial stage of lodging application for set aside with HMCTS doesn’t, in my experience, cause delays of any real concern, and certainly for the decisions that are set aside, we’ve seen the appeals relisted much more quickly than if we had to deal with Upper Tribunal judge’s directly for each and every application.