Permission to appeal refused – interests of justice?

Set aside or judicial review aside I do wonder whether the UT have ever considered doing something akin to Tribunal User Groups?

You’ll have to let me know about this.. I am not aware of what you’re referring to?

Does anyone know where I can get hold of CIB/4812/1997 ?

I don’t have it. If no-one else can find it, you can email the Tribunals service directly.

@Edmund Shepherd
Thanks - have done - waiting for their response..

By the way, here is another example where permission to appeal was not granted:
CDLA/2259/2000

Also, does anyone know how ‘realistic prospect of success’ became the test for permission to appeal?

I’m confused by your question.  Can you provide some context and where you find the phrase “realistic prospect of success”?

It is in the UT decision refusing permission - see the link in the opening post (second paragraph of the decison). The same phrasing (with the same reference to Smith v Cosworth Casting Processes Ltd) occurs in my JR case that I referred to earlier (except that we were refused permission initially, failed at JR, succeeded at CoA and are now back at UT where permission has finally been given). The same phrasing isn’t entirely coincidental - it is the same UT Judge.

Oh - and to answer wr4’s substantive question - it is just another way of saying “Do the grounds of appeal have any merit? And do they identify any material error of law?”“

Yes, I think that Judge Jacob’s use of that phrase is unhelpful in this context and that past caring is right in that it appears to be shorthand for “no material error of law”.  The phrase “real prospects of success” (and I don’t think there is much mileage in trying to distinguish between “real” and “realistic”) is found in the civil procedure rules for the purposes of some types of litigation in the civil courts, and requires the claimant or defendant to have a case which is better than merely arguable (for example, see ED & F Mann Liquid Products Ltd v Patel [2003] EWCA and H v G (Adoption Appeal) [2013] EWHC). 
 
That is, arguably, too high a threshold for appeals from first tier social security appeal tribunals and the phrase (or any variant of it) cannot be found in the tribunal rules.  That threshold is lower, and is, that the case is at least arguable (as opposed to fanciful, far-fetched, etc).  I accept that the difference might not be great in a lot of cases but nevertheless those cases in the gap where that difference lies risk failing for want of the benefit of the doubt.  So I think that because this case was clearly unarguable on the facts according to the judge, then the decision is specific to that case and it does not (and I accept that Judge Jacobs was not saying that it does) create a general rule to apply to all permission applications from FTT’s to UT’s.

Sorry I have been away on leave and have only just read the latest comments.  Thanks to everyone for posting. 

I now have the UT decision refusing my application for set aside.  I basically argued that there had been procedural irregularities and that it was in the interest of justice to set aside.  I am disappointed by the decision and somewhat confused.  I am posting here all the documents relating to this case, including my submissions.  If anyone wants to take a look, I would be grateful for any comments and advice to help me in the future.

Original FTT Decision
FTT Statement of Reasons
FTT Record of Proceedings (I also prepared a transcript of the FTT Record of Proceedings, although there were sections I found hard to read, which are in red)
Application for Permission to Appeal to the UT
Permission to Appeal Refused
Application to set aside UT decision
Supplementary submission
Application to set aside refused

This is the key part of the decision:

[…] the Upper Tribunal has not been able to obtain a copy of the papers that were before the First- Tier Tribunal.  In those circumstances, it is impossible to know what evidence was before the tribunal and, therefore, whether it was entitled to make the findings of fact that it did.  It was those findings that dictated the outcome of the appeal.  It is not in the interests of justice to give permission to appeal in this case when the evidence is lacking.  There may be cases in which it is possible to deal with a case fairly on the basis of the judge’s reasons, but this is not one of them.

As for the next stage, Mike Spencer mentioned in a previous post that there may be a right of appeal to the Court of Appeal as the decision is not an excluded decision.  I would appreciate any thoughts on this as the client may wish to take this further..

Thank you very much

To appeal to the Court of Appeal the first step will be to ask the UT for permission to appeal against the latest refusal to set aside.  The time limit seems to be the usual 3 months under rule 44(3).  The UT is bound by Samuda v SSWP EWCA [2014] Civ 1 so is almost certain to refuse permission.  So you will then need to apply directly to the Court of Appeal for permission, arguing that Samuda was wrongly decided for the reasons given in the S&M green book at page 1496.  In case this is wrong, you should probably also make a late application to JR the refusal of permission.  For both your client will be at risk of costs so you will need legal aid.

Once you’ve got over the jurisdiction hurdle, you will need to satisfy the Court of Appeal that Judge Jacobs’ refusal to set aside his own permission decision contained a material error of law.  The key issue here is going to be whether he correctly considered whether it would be in the interests of justice to set aside his permission decision.  Although he has asked himself the correct question, his conclusion does appear slightly perverse: the Upper Tribunal has been unable to get hold of the bundle because the FTT has lost it;  this makes it “impossible” for him to know whether the FTT was entitled to make the findings it did;  his conclusion is that he should refuse permission to appeal.  That hardly seems fair or just on the appellant, who in effect has been denied justice because of the FTT’s administrative mistake. 

On the other hand, the appellant would have been sent a copy of the bundle so presumably has lost it too?  And there is nothing in the rules that says the FTT has to provide a copy of the bundle to the UT in every permission case, merely that the UT can direct it to do so.  It would be an administrative burden if permission had to be granted every time the FTT lost the bundle and there was a possibility that it might be material to the appeal.

Another way of looking at it might be to say Judge Jacobs has confused the question of whether he should set aside his permission decision with whether he should grant permission to appeal.  The former involves first considering whether it is fair and just that the appellant’s permission application should be considered without the Judge having seen the bundle.  It is only then that he should consider whether this unfairness should be rectified by giving the appellant another chance at applying for permission.  One problem is that even if he granted a set aside it is hard to see how you can establish an error of law without access to the bundle, so in effect the procedural defect can never be rectified. 

“Let it go, let it go” - to the tune of that tune from Frozen.

@Mike Spencer
Thanks for your detailed response.  Even if the client cannot take this further I think considering the issues is useful for future reference.  I have a copy of the bundle myself from the client and assumed that the judge would have been aware of this as I made detailed references to it both in my application for permission and in my application to set aside.  Following your comments, I would add that it seems that the UT judge must have chosen to ask for the bundle and presumably this indicates that he thought it would be of use in making his decision.