Issues of fact and lawTimes 16 AugustRe [1985] AC 835Re [2006] 1 AC 80Times 20 AprilTimes 19 Augustsee HM Revenue and Customs Commissioners v Fairford Group plcsub nom Commissioners for HM Revenue and Customs Commissioners v Fairford Group plcRe [1966] Ch 236Times 9 DecemberTimes 22 AprilTimes 24 JuneTimes 18 DecemberTimes 10 DecemberTimes 17 AprilRe [1976] Fam 238, [1976] 1 All ER 417Re [1985] AC 835sub nom Secretary of State for the Home Department v Rehman [2003] 1 AC 153, [2002] 1 All ER 122Re [1995] Ch 241Times 24 OctoberRe [2006] 1 AC 80Re [2006] 1 AC 80Times 22 MayTimes 10 NovemberTimes 10 NovemberTimes 27 MarchTimes 29 JuneTimes 20 June
Issues of fact, law and judgment
4.269An appeal is a process of reconsideration of a decision. The scope of the reconsideration that is required or allowed may be limited to particular aspects of the decision under appeal. Legislation may require or allow the appellate tribunal to accord varying degrees of respect to exercises of judgment involved in the decision. A common way of limiting the scope of an appeal is to confine it to issues, points or questions of law or to the ground that the tribunal’s decision was erroneous or wrong in law. These expressions, and variants of them, are synonymous. Issues of law may be contrasted with issues of fact and issues of judgment.
4.270Issues of fact are those that deal with matters such as who did what, when, where, why and how. However, an issue may be classified as one of fact purely for definitional reasons. There is a clear instance of this in section 4 of the Safeguarding Vulnerable Groups Act 2006. Section 4(2) allows for an appeal against a decision to include a person on a list of barred persons on the ground of a mistake of law or of material fact, but section 4(3) provides that ‘the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact’.
4.271Issues of judgment are dealt with separately.
1See para 4.384.4.272A limit on appeals to matters of law is compatible with article 6.
2Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [43]. Even if it were not, the language used will not be susceptible to interpretation under section 3(1) of the Human Rights Act 1998 to turn an appeal on law into an appeal on fact or law.
3[2005] ICR 763 at [43].4.273In
R (Mukarkar) Secretary of State for the Home Department,
4(2006) Times 16 August. the Court of Appeal considered the effect of a change in the permissible grounds of appeal. Previously an appeal lay on any ground, but this was amended to limit appeals to errors of law. Carnwath LJ commented that the Government should show restraint in bringing appeals on issues of fact in the outstanding cases to which the previous law still applied.
4.274As legislation distinguishes between issues of law and fact on appeal, the difference must be respected. But in practice the difference is not of great significance in determining the scope of the tribunal’s jurisdiction.
4.275In practice, an appeal on law covers many grounds that involve or relate to issues of fact and judgment. And an appeal on any ground may be restricted by the respect that is shown on appeal for findings of fact and exercises of judgment, and there may be a restriction on the circumstances in which fresh or further evidence can be adduced.
4.276The practical significance is apparent if permission is required. If an appeal lies on law only, the limitation helps to deter appeals based on a dispute over the facts. Representatives may try to present disputes over facts as issues of law and unrepresented parties may not understand the difference. But the limitation does reduce the number of applications for permission and provides an easy formulation under which those that are made inappropriately can be refused. But if an appeal lies on any ground, more applications are made and the task of operating the permission filter is more difficult. So the significance lies in the size and management of the workload at the application stage.
4.277Of greater significance in practice is the difference between those appeals that involve a complete reconsideration of the issues in the case and those that require an error to be identified in the decision under appeal.
5See above at para 4.27. The latter are more likely to require permission than the former.
4.278The meaning of error of law is not wider when a right under an international convention is involved.
6This argument was put in MT (Algeria) v Secretary of State for the Home Department [2008] QB 533 at [96] and rejected at [113].The disciplined approach to issues of law
4.279Lord Wilberforce set out the line that has to be drawn in
Anisminic v Foreign Compensation Commission7[1969] 2 AC 149 at 208. when he remarked of the function of courts:
… just as their duty is to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart to this autonomy, they must ensure that the limits of that area which have been laid down are observed …
4.280If a tribunal’s jurisdiction is, by statute, limited to issues of law, it is not appropriate for the range of issues of law to be extended. In
Varndell v Kearney & Trecker Marwin Ltd,
8[1983] ICR 683. Eveleigh LJ said:
We must not strive to create a body of judge-made law supplementing the law as laid down in the Employment Protection (Consolidation) Act 1978. The Act itself provides quite enough law in all conscience and it is not part of the judicial function to increase the potential area of appeal, which is given by section 136 and is only on a point of law, by increasing the numbers of points of law governing the determination of a case.
9[1983] ICR 683 at 695.4.281The House of Lords made the same point in relation to issues of judgment in
Piglowska v Piglowski.10[1999] 1 WLR 1360. Lord Hoffmann cautioned that:
An appellate court should resist any temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.
11[1999] 1 WLR 1360 at 1372.4.282And in
Re J (A Child) (Custody Rights: Jurisdiction),
12[2006] 1 AC 80. the House of Lords warned that the extent of interference on appeal must not be such that it effectively removes any element of discretion from the tribunal below. Baroness Hale said:
Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful … in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter.
13[2006] 1 AC 80 at [12].4.283Similarly, issues of fact must not be admitted under the guise of issues of law.
14MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49. In
Krasniqi v Secretary of State for the Home Department,
15[2006] EWCA Civ 391; (2006) Times 20 April. Sedley LJ advised that appellate tribunals should be ‘rigorous in letting only issues of law go through to the second stage’.
16[2006] EWCA Civ 391 at [10]. Chadwick LJ agreed, adding that he wished to ‘endorse his observations as to the need for rigour in identifying, with an appropriate degree of precision, which among the issues an applicant may seek to raise on an appeal are truly issues of law fit for consideration by an appellate tribunal.’
17[2006] EWCA Civ 391 at [41].4.284Despite these warnings, there does appear to be a tendency for appellate tribunals to seek, if not strive, to extend the scope of their jurisdiction, either in individual cases or generally. In this, the tribunals are helped by the element of flexibility in the scope of issues of law and the potential for stating issues in different ways.
18On the flexibility of the standard for adequacy of reasons see below at para 4.495 onwards.4.285The reality is that a judge is usually able to find an error of law in any case, sometimes easily, sometimes only with difficulty. The issue may seem to be not so much whether the decision involves an error of law, as whether the judge believes that something should be done about it. Judges do not articulate the factors that motivate them and may not even be conscious of them. This is significant for the way that applications for permission to appeal are presented. They may be more effective in cases where an error of law is not readily apparent if they try to influence the judge’s instinct in favour of identifying an error on which to give permission.
A general definition of an issue of law?
4.286It is impossible to categorise, let alone list, every form that an issue of law may take. Any attempt at a comprehensive list or all embracing formula is doomed to failure by reason of its generality.
4.287In
Mountview Court Properties Ltd v Devlin,19(1970) 21 P & CR 689. Bridge J commented that an appeal on a point of law only lay if ‘the decision … is itself vitiated by reason of the fact that it has been reached by an erroneous process of legal reasoning’:
20(1970) 21 P & CR 689 at 695 and 696.But this begs the question of where the line is drawn between legal and factual reasoning. It is also inadequate to account for those procedural matters that are issues of law, such as the adequacy of a tribunal’s reasoning.
4.288An issue, error or point of law is widely defined for the purposes of an appeal that involves a decision of a public body. In
Nipa Begum v Tower Hamlets London Borough Council,21[2000] 1 WLR 306. Auld LJ considered the meaning of ‘point of law’ ‘as a matter of the plain meaning’
22[2000] 1 WLR 306 at 312. His lordship dealt with the issue later as a matter of the policy of the legislation (s204 of the Housing Act 1996) at 314–315. of the words and concluded that it:
… includes not only matters of legal interpretation, but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires,
23Whether a provision in subordinate legislation is authorised by primary legislation. to which I add, also of irrationality and (in)adequacy of reasons.
24[2000] 1 WLR 306 at 313. See also: Lord Denning MR in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326; Lord Templeman in Re Preston [1985] AC 835 at 862; Lord Hope in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at [216].4.289It is also possible to rely on judicial review grounds by way of challenge to the validity of a decision by a public body in defence of a private law action by that body.
25See the Court of Appeal in Cannock Chase District Council v Kelly [1978] 1 WLR 1 and the House of Lords in Wandsworth London Borough Council v Winder [1985] AC 461.4.290Although it is impossible to list every form in which an issue of law can arise, Brooke LJ gave a useful list in
R (Iran) v Secretary of State for the Home Department,26[2005] EWCA Civ 982 at [9]–[10]. where he set out the most common ways in which a tribunal may make an error of law:
When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:
i)Making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
ii)Failing to give reasons or any adequate reasons for findings on material matters;
iii)Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv)Giving weight to immaterial matters;
v)Making a material misdirection of law on any material matter;
vi)Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii)Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
Each of these grounds for detecting an error of law contain the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.
The different strategies available if a mistake is not material are discussed at para 4.246 onwards.
4.291The Inner House of the Court of Session gave a shorter list in
Advocate General for Scotland v Murray Group Holdings Ltd:
27[2015] CSIH 77 at [42] – [43]. (i) an error of general law, such as the content of the law it applies; (ii) an error in the application of the law to the facts: (iii) making findings without support in the evidence; (iv) taking a wrong approach to the case (such as asking the wrong question, taking account of irrelevant considerations, or making a decision that no reasonable decision could make). If this was intended to be comprehensive, procedural errors could only fall into (iv).
4.292Perhaps a better way than listing the grounds of error of law is to define those matters that are not issues of law. One way of describing those issues is that they are those issues of judgment relating to facts or procedure over which it is permissible to differ. But even this requires a judgment on what is permissible in a particular case, on which appellate judges may properly differ. It is at best descriptive of which issues are treated as ones of law rather than prescriptive of what those issues should be. The approach of Lord Carnwath in
R (Jones) v First-tier Tribunal (Social Entitlement Chamber)28[2013] 2 AC 48 at [41]–[47]. See also Davis LJ’s approach to issues of evaluation in R (Evans) v Her Majesty’s Attorney-General and the Information Commissioner [2013] 3 WLR 1631 at [107]–[109]. allows a court or tribunal to decide as a matter of policy the issues in respect of which a difference of view is legitimate.
29In Commissioners for Her Majesty’s Revenue and Customs v Fairford Group plc [2014] UKUT 0329 (TCC) at [28] considered that this did not apply to appeals against case management decisions.4.293The following is an attempt at a systematic and classified list of the main issues of law that are likely to arise. Inevitably, there is some overlap.
Issues of mixed fact and law
4.294These are issues in which matters of fact and law are entwined. They must first be disentangled, as only the matters of law may be subject to the right of appeal.
30MT (Algeria) v Secretary of State for the Home Department [2008] QB 533 at [97].Power to hear the case
4.295The tribunal must have power to hear the case. This involves considering the jurisdiction of the tribunal itself, the appointment or ticketing of its members, and whether the individual case has been properly brought before the tribunal.
4.296A tribunal makes an error of law if it acts outside its jurisdiction in the sense of the scope of its authority over issues, parties or remedies. This is covered in chapter 2.
4.297A tribunal may make an error of law if it is not properly constituted. For example: the tribunal may not be properly constituted according to the relevant practice statement.
31De Haney v Brent MIND [2004] ICR 348. Or one of its members may not be authorised to sit at all or to hear the particular case or type of case.
32Lord Hope in Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at [6].4.298Finally, a tribunal makes an error of law if the individual case has not been properly brought before the tribunal.
33See chapter 2. This includes issues of notice and whether the case has been correctly listed for oral or paper hearing.
4.299For the purposes of founding jurisdiction, an appeal against a decision is valid even though that decision was one which a decision-maker or a tribunal was not allowed by law to make.
34See London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 and Re Gale dec’d [1966] Ch 236. See also the decision of the Tribunal of Commissioners in R(I) 9/63 at [20]–[22]. Otherwise, the validity of the decision could only be determined on judicial review.
Evidence
4.300A tribunal cannot make an error of law by failing to consider evidence that was not before it.
35R(S) 1/88 at [3]. However, it may make an error of law in some related way. For example: it may fail to obtain evidence in pursuance of its inquisitorial duty or to grant an adjournment for the evidence to be obtained.
4.301A tribunal makes an error of law if it refuses to hear or to take account of evidence that is admissible on the issues in dispute.
4.302The tribunal may also make an error of law in its assessment of the evidence and making its findings of fact. See below.
Mistakes in the findings of fact
Findings involving an exercise of judgment
4.303The finding of facts usually
36See below for cases in which no exercise of judgment is involved. involves an exercise of judgment by the tribunal.
37See below at para 4.384 onwards. This exercise is accorded the same deference on appeal as other exercises of judgment.
38On which see below. Accordingly, a mistake as to a finding a fact that is in dispute is of itself not an error of law.
39Inland Revenue Commissioners v George (2003) Times 9 December. For mistake by finding a fact that is uncontroverted, see below. In
AJ (Cameroon) v Secretary of State for the Home Department,40[2007] EWCA Civ 373. the Court of Appeal deprecated the ‘misuse of factual arguments, sometimes amounting to little more than nuance, and often points of small detail, as a basis for assaulting the legality of a decision’.
41[2007] EWCA Civ 373 per Laws LJ at [22].4.304However, a tribunal may make an error of law in making its findings in a number of ways.
4.305First, a tribunal may make an error of law if there is no evidence at all to justify a finding of fact.
4.306Second, a tribunal makes an error of law if it does not make its findings in a rational way. It may have approached the exercise incorrectly in principle.
42AA v NA (Appeal: Fact-finding) [2010] 2 FLR 1173 at [15]. For example: it may have decided which evidence it preferred by reference to the number of witnesses called by each party or failed to consider the evidence as a whole.
43See chapter 12. Or the tribunal may have used irrational criteria. For example: it may have rejected evidence because the witness was disrespectful to the tribunal. Finally, it may have misunderstood the evidence.
44Hossack v General Dental Council (1997) Times 22 April. This is likely to lead a tribunal to take account of an irrelevant consideration.
45Hampshire County Council v JP [2009] UKUT 239 (AAC) at [32].4.307Third, a tribunal makes an error of law if a finding cannot be justified rationally on the evidence.
46Southall v General Medical Council [2010] 2 FLR 1550 at [47]. This is sometimes described as a perverse finding. This is a finding that no tribunal acting rationally could have made.
47Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] 4 All ER 418 at [12]. Every finding for which there is no evidence is perverse. In
Re B (A Child) (Care Proceedings: Threshold Criteria),
48[2013] 1 WLR 1911. Lord Neuberger explained that this restrictive approach:
can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).
49[2013] 1 WLR 1911 at [53].4.308The perversity may lie in the tribunal’s overall conclusion, an individual finding of fact, or its assessment of credibility.
50Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [43].4.309There must be an overwhelming case to support a conclusion that a tribunal’s decision was perverse.
51Elmbridge Housing Trust v O’Donoghue (2004) Times 24 June. This is especially so of an argument that a conclusion on credibility is perverse.
52Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [43].4.310Fourth, the tribunal may make an error of law if it acts on information or material that is not put to the parties for comment.
53See chapter 3.4.311Fifth, the tribunal makes an error of law if it does not adequately explain how it made its findings. This is an aspect of adequacy of reasons.
54On which see below at para 4.415 onwards.Inferences
4.312These are covered separately.
55See chapter 11. They always involve an issue of judgment. A tribunal makes an error of law if it draws an inference that was not supported by the evidence. The extent to which an inference is susceptible to appeal depends on the extent to which it depended on the tribunal’s ability to assess the reliability of the evidence on which it is based.
56Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] 4 All ER 418 at [17].Reasonableness
4.313Reasonableness is sometimes said to be an issue of fact. This means that it is treated in the same way as a fact when an appeal is limited to issues of law. Reasonableness is not determined as the objective of a factual enquiry. It may involve such an enquiry, but it always involves the exercise of judgment. It is merely a specific example of an issue of judgment over which it is permissible to differ.
57See above. See also Beldam LJ in Chief Adjudication Officer v Upton unreported 10 March 1997.4.314In
Cresswell v Hodgson,58[1951] 2 KB 92. Singleton LJ said ‘when there has been an appeal to this court on that question of reasonableness it has been said time and again that it is really a question of fact’.
59[1951] 2 KB 92 at 96. See also: R(SB) 6/88 at [15].4.315This means that there are limited grounds on which a conclusion on reasonableness may be challenged:
i)if it is ‘perverse or unreasonable’;
60Brandon LJ in Wall’s Meat Co Ltd v Khan [1979] ICR 52 at 60. ii)if the tribunal misdirected itself ‘by omitting some point of substance or by taking account of something which should not properly have been considered’;
61Sir Raymond Evershed MR in Darnell v Millwood [1951] 1 All ER 88 at 90. and
iii)if the tribunal applies a rigid rule instead of the more open standard of reasonableness.
62See the decision of the Court of Appeal in Marley (UK) Ltd v Anderson [1996] ICR 728 as explained by the Employment Appeal Tribunal in Tyne and Wear Autistic Society v Smith [2005] ICR 663 at [35]. Proportionality
4.316Like reasonableness, proportionality is an issue of fact. This does not mean that it is not subject to scrutiny by the courts, but any challenge to the assessment of proportionality must be brought under a recognised head of error of law.
63As in A v Secretary of State for the Home Department [2005] 2 AC 68 at [44], where Lord Bingham held that the reasons given by the tribunal had not supported its conclusion. Risk and chance
4.317These are matters of fact. In
MT (Algeria) v Secretary of State for the Home Department,
64[2008] QB 533. the Court of Appeal referred to the assessment of the risk that a person might be tortured if removed to another country:
But that process is all part of the fact-finding process. That process of assessment is quite different from, and plays a quite different role from, for instance, the assessment that the court has to make, based on found facts, of whether the defendant acted negligently: which is a matter of legal judgment, and not just a question of what is going to happen in certain circumstances in the future.
65[2008] QB 533 at 109.Foreign law
4.318Foreign law has to be proved by evidence and found as a fact.
Findings not involving an exercise of judgment – uncontroverted fact
4.319The circumstances in which a mistake on uncontroverted fact is an error of law were set out by the Court of Appeal in
E and R v Secretary of State for the Home Department.66[2004] QB 1044 at [66]. Speaking for the Court, Carnwath LJ said:
In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result … Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.
4.320This has been treated as an example of a perverse finding rather than as a separate head of error of law.
67Ward LJ in Braintree District Council v Thompson [2005] EWCA Civ 178 at [19]. However, it is accepted as a separate head of error of law, although the Court of Appeal in
MT (Algeria) v Secretary of State for the Home Department68[2008] QB 533 at [69]. warned:
We certainly caution against the use of this principle to turn what is a simple error of fact in to an error of law by asserting some new fact which is itself contentious.
Legislation and case-law
4.321A tribunal makes an error of law if it does not apply the correct law. If the law is found in legislation, the tribunal must interpret it correctly. This may involve an issue of law or an issue of fact.
69On interpretation as an issue of fact or law, see below. If it is found in case-law, it must analyse the decisions properly. This always involves an issue of law.
Validity of secondary legislation
4.322A tribunal makes an error of law if it applies secondary legislation that was not authorised by primary legislation. The House of Lords decided in
Chief Adjudication Officer v Foster70[1993] AC 754. that tribunals and decision-makers have power to decide whether secondary legislation is authorised. In
T-Mobile (UK) Ltd and Telefónica 02 UK Ltd v Office of Communications,71[2009] 1 WLR 1565. Jacob LJ said:
It is not the function of a statutory tribunal to impugn statutory instruments or regulations made pursuant to statutory powers. Challenges to these are classically matters for JR …
72[2009] 1 WLR 1565 at [51].However, that must be read in its context. As a general proposition, it is contrary to
Foster and
Mathieson v Secretary of State for Work and Pensions.
73[2015] 1 WLR 3250.4.323A decision is also erroneous in law if it violates a party’s Convention right under the Human Rights Act 1998.
Law not drawn to the parties’ attention
4.324A tribunal may make an error of law if it relies on legislation or authorities that were not cited by the parties and not drawn to the parties’ attention so that they could make submissions on them. Ward LJ explained the test to be applied in
Stanley Cole (Wainfleet) Ltd v Sheridan.74[2003] ICR 1449. There are two requirements, both of which must be satisfied in order to render the proceedings unfair.
4.325The first requirement is that the provision or authority must be significant to the outcome of the proceedings. There will not be a mistake in law:
… simply because a judge (and for present purposes that includes the tribunal) cites in his or her judgment decided cases which had not been referred to in the course of the hearing. Judicial research would be stultified if that were so and if the parties had to be given the opportunity to address each and every case eventually set out in the judgment.
75[2003] ICR 1449 at [29].… the authority must be shown to be central to the decision and not peripheral to it. It must play an influential part in shaping the judgment. If it is of little or no importance and serves only to underline, amplify or give greater emphasis to a point that was explicitly or implicitly addressed in the course of the hearing, then no complaint can be made. If the point of the authority was so clear that a party could not make any useful comment in explanation, then it matters not that the authority was not mentioned.
Thus it seems to me, the authority must alter or affect the way the issues have been addressed to a significant extent so that it truly can be said by a fair-minded observer that the case was decided in a way which could not have been anticipated by a party fixed with such knowledge of the law and procedure as it would be reasonable to attribute to him in all the circumstances. There is, however, an important caveat. This is not intended to be an all-encompassing test. It is, in my judgment, impossible to lay down a rigid rule as to where the boundaries of procedural irregularity lie, or when the principles of natural justice are to apply, or what makes a hearing unfair. Everything depends on the subject matter and the facts and circumstances of each case.
76[2003] ICR 1449 at [31]–[33].4.326The second requirement is that the way in which the proceedings were conducted must have produced ‘substantial prejudice’ or ‘material injustice’.
77[2003] ICR 1449 at [34].Interpretation
4.327The interpretation of documents is an issue of law. This applies to statutes,
78And so not the proper subject for a concession: Cherwell District Council v Thames Water Authority [1975] 1 WLR 448 at 452. court orders
79R v Evans (Dorothy) (2004) Times 10 December. and other documents like deeds and contracts.
80Global Plant Ltd v Secretary of State for Health and Social Security [1972] 1 QB 139 at 154. And so it is not the proper subject of a concession: Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 at 1525.4.328In
Brutus v Cozens,
81[1973] AC 854. Lord Reid distinguished between issues of fact and law in the meaning of language:
The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is … It is for the tribunal which decides the case to consider, not as law but fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.
82[1973] AC 854 at 861.Lord Hoffmann explained this passage in
Moyna v Secretary of State for Work and Pensions:
83[2003] 1 WLR 1929.Lord Reid was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator’s meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.
… What this means in practice is that an appellate court with jurisdiction to entertain appeals only on questions of law will not hear an appeal against such a decision unless it falls outside the bounds of reasonable judgment.
84[2003] 1 WLR 1929 at [24]–[25].4.329So, the meaning of individual words is not an issue of law. This is because words in isolation have no legal significance. They take their meaning from their syntax, context and background. The meaning of words in their context is an issue of law. Once the meaning of words has been determined, the application of that meaning to the facts found by a tribunal will only involve an issue of law if the tribunal’s conclusion is outside the bounds of reasonable judgment.
Judgment
4.330The nature of an exercise of judgment, including discretions, is considered separately.
85See below at para 4.384 onwards. The issue here is when an exercise of judgment will be erroneous in law. The case-law has been developed in the courts, where the test for allowing an appeal is whether the decision under appeal is wrong
86CPR r52.11(3)(a). rather than in error of law, which is the test that the Upper Tribunal has to apply.
How an exercise of judgment may be erroneous in law
4.331A tribunal makes an error of law if it fails to exercise a judgment when required. For example: it may fail to consider whether to adjourn when a party fails to attends an oral hearing.
4.332An exercise of judgment will be erroneous in law in three circum-stances: (a) if the tribunal took the wrong approach in law; (b) if the tribunal acted on the wrong material; and (c) if the tribunal went wrong in exercising its judgment.
87Lord Woolf MR in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 at 1523. The same approach applies to case management issues: Chadwick LJ in Royal & Sun Alliance Insurance plc and Smith v T&N Ltd [2002] EWCA Civ 1964 at [38]; Grupo Torras SA v Al Sabah (No 2) (1997) Times 17 April.4.333A tribunal may take the wrong approach in law in two ways. (i) It may misdirect itself on the law. For example: it may misplace the burden of proof. (ii) It may also go wrong in principle. For example: it may disregard a principle that governs the exercise of a discretion.
88For example: the principles applicable if it sought to raise on appeal a point that was not raised below – Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 at 47. There are no special rules for cases involving the welfare of children.
89Lord Fraser in G v G [1985] 1 WLR 647 at 651.4.334A tribunal may act on the wrong material if it has not taken into account the correct parcel of considerations. It may have (i) overlooked a relevant consideration or (ii) taken account of an irrelevant consideration. This does not mean that a tribunal must set out every factor that it took into consideration in its reasons for decision.
90Tucker LJ Redman v Redman [1948] 1 All ER 333 at 334–335. But the reasons must at least identify the point or points that the tribunal considered decisive.
91Holman J in B v B (Residence Order: Reasons for Decision) [1997] 2 FLR 602 at 606.4.335The application of judgment to the parcel of considerations is known as the ‘balancing exercise’.
92Bridge J in Re F (A minor) (Wardship: Appeal) [1976] Fam 238 at 266. A tribunal makes an error of law if it comes to a conclusion that it is not entitled to reach on the material before it.
93On which see below.4.336Judgment must always be exercised judicially, which limits the factors that may or must be taken into account. In some cases, the legislation sets out factors that must or must not be taken into account.
94For example: reg 21 of the Child Support (Variations) Regulations 2000 lists factors that must be taken into account or disregarded when determining whether it would be just and equitable to agree to a variation in the calculation of a non–resident parent’s liability for child support maintenance.4.337A decision on reasonableness, which is an issue of fact, involves an exercise of judgment and may be erroneous in law on that basis.
95For example: Sir Raymond Evershed MR in Darnell v Millwood [1951] 1 All ER 88 at 90.Deference for the balancing exercise
4.338If an appeal relates to the balancing exercise, the appellate tribunal will show deference
96Sometimes courts speak of respect rather than deference. Neither is really appropriate, as the courts are merely making an allowance for a particular feature of the decision-making below. to the exercise of judgment by the tribunal below. As Lord Radcliffe remarked in
Edwards v Bairstow:
97[1956] AC 14.The court is not a second opinion, where there is reasonable ground for the first.
98[1956] AC 14 at 38.4.339This is not always observed, as Lord Carswell noted in
Director of Public Prosecutions v Collins:
99[2006] 1 WLR 2223 at [18].… the reports of cases before appellate tribunals are strewn with instances in which the courts have reminded themselves of the importance of resisting the temptation to interfere too lightly with the findings of a lower court to which a decision has been entrusted, and have then proceeded to yield to that very temptation … Appellate tribunals should pay more than lip service to that principle and when they do reverse them they should be clear on what basis they do so …
4.340There are two reasons for this deference. The first reason is that it is of the essence of an exercise of judgment that different tribunals may properly reach a different conclusion on the same facts.
100Asquith LJ in Bellenden v Satterthwaite [1948] 1 All ER 343 at 345. The second, and supplementary, reason applies if the tribunal has particular expertise. If it does, an appellate body should take this into account in deciding whether the tribunal made an error of law.
101Sedley LJ in Bromley London Borough Council v Special Educational Needs Tribunal [1999] 3 All ER 587 at 594. However, this consideration has less relevance if the appellate body also has access to the same expertise.
102See Lord Radcliffe’s comments downplaying the value of the knowledge of business matters held by the General Commissioners for Income Tax in Edwards v Bairstow [1956] AC 14 at 38.4.341This deference is not based on a limit to the tribunal’s appellate jurisdiction. In
Secretary of State for the Home Department v Rehman,103[2002] 1 All ER 122. the House of Lords was concerned with a decision of the Special Immigration Appeals Commission. The Commission was given an express power to exercise a discretion differently from the Secretary of State. Nonetheless, deference was appropriate. Lord Hoffmann explained why by reference to the basis of the deference due to the Secretary of State’s judgment:
104[2002] 1 All ER 122 at [58].I emphasise that the need for restraint is not based upon any limit to the commission’s appellate jurisdiction. The amplitude of that jurisdiction is emphasised by the express power to reverse the exercise of a discretion. The need for restraint flows from a commonsense recognition of the nature of the issue and the differences in the decision-making processes and responsibilities of the Home Secretary and the commission.
105[2002] 1 All ER 122 at [57], Lord Hoffmann emphasised that the deference due would vary with the circumstances.4.342The degree of deference varies according to the nature of the standard that is being applied. As Hoffmann LJ explained in
Re Grayan Building Services Ltd:
106[1995] Ch 241. See also Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [27] and Lawson v Serco Ltd [2006] ICR 250 at [34].… the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weight up in deciding whether or not the standard has been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision.
107[1995] Ch 241 at 254.4.343Lord Carnwath, the first Senior President, has said that this flexibility should allow the Upper Tribunal to give guidance on issues of fact in order to bring consistency of approach on the scope of legal categories.
108R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48 at [41]–[47]. And the House of Lords in
Tandon v Trustees of Spurgeons Homes109[1982] AC 755 at 767. held that the issue in that case – the classification of premises as a house – ‘must not, save within narrow limits, be treated by the courts as a question of fact: for the variations of judicial response could well be such as to give rise to unacceptable, even unjust, differences between one case and another.’
4.344The issue on appeal is not how the appellate tribunal would have exercised the judgment,
110Viscount Simon LC in Charles Osenton and Co v Johnson [1942] AC 130 at 138. it is whether the tribunal below made an error of law in its exercise. Accordingly, the appellate tribunal will not consider how it would have exercised the judgment.
111Lord Widgery CJ in Global Plant Ltd v Secretary of State for Health and Social Security [1972] 1 QB 139 at 155. This approach is not affected by the Human Rights Act 1998.
112Biji v General Medical Council (2001) Times 24 October.4.346This appellate deference is limited to the balancing exercise. It does not cover other ways in which an exercise of judgment may be erroneous in law. For example: it does not extend to whether particular considerations were relevant to the exercise of the discretion. As Arden LJ in
Teinaz v Wandsworth London Borough Council:
113[2002] ICR 1471 at [40].… it is for the appellate tribunal to determine what considerations are relevant to the question at issue. It does not defer to the inferior tribunal in the selection or identification of these considerations. Second, unless permission is given for fresh evidence to be adduced on appeal, the appellate tribunal makes this determination on the factual material before the inferior tribunal.
4.347In deciding the circumstances in which a balancing exercise will be wrong, the courts traditionally distinguished between different forms of judgment. They first identified the different nature of the judgment involved. All evaluative judgments involve assessing the overall impact of a range of factors that are open to different assessments.
114Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748 at [16]. Some forms of judgment involve additional unique features. A finding of primary fact is said to depend on the judge’s unique advantage in seeing and hearing the witnesses give evidence.
115Manning v Stylianou [2006] EWCA Civ 1655 at [19] and [20]. And a discretion involves a choice in circumstances that may not provide any criteria by reference to which the choice is to be made.
116Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 1 WLR 1507 at 1523. Having classified the type of judgment, the courts then qualified the basic test of whether the decision was wrong
117By using adjectives such as plainly wrong (Baroness Hale in Re J (A Child) (Custody rights: Jurisdiction) [2006] 1 AC 80 at [12]) or plainly and obviously wrong (Lord Bridge in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 at 816). and identified criteria that limited the circumstances in which an appeal would be allowed by reference to the particular nature of the judgment involved.
4.348In
In re B (A Child) (Care Proceedings: Threshold Criteria)118[2013] 1 WLR 1911. the Supreme Court by a majority set out a different approach. The appellate court should ask whether on review the decision under appeal was wrong rather than to qualify that question with adverbs like ‘plainly’.
119Some judges had already expressed dissatisfaction with such adverbs. In Meadow v General Medical Council [2007] QB 462, Auld LJ said at [125]: ‘I doubt whether the adverbial emphasis of “clearly” adds anything logically or legally to an appellate court’s characterisation of the decision below as “wrong”’. As Lord Reed put it in Jackson v Murray [2015] 2 All ER 805 at [34], such words emphasise rather than modify the standard. The court’s willingness to find that it was wrong should be influenced by the particular features of the exercise of judgment that were appropriate in the particular case rather than depend on the type of judgment that had been exercised.
120This is similar to the view of Richard A Posner that judges only need and use two standards, one where deference is shown, one where it is not, with the latter reflecting the extent of the appellate court’s confidence that the decision is wrong: How Judges Think, Harvard, 2008, pp113-114. In some cases, a particular approach may be appropriate only to one type of judgment. For example: it is only appropriate to allow for ‘a generous ambit within which reasonable disagreement is possible’
121Lord Fraser G v G [1985] 1 WLR 647 at 652. if the decision involved the exercise of a discretion.
122Lord Wilson at [2013] 1 WLR 1911 at [44]. In other cases, the same approach may be applied, perhaps to a different degree, to different types of judgment. For example: the advantages of a judge having seen and heard the witnesses give evidence may be relevant both when considering a challenge to the court’s findings of primary fact and when considering whether a legal standard or threshold had been met, but might be given more significance in the former than the latter.
123Lord Neuberger at [2013] 1 WLR 1911 at [58]. For a similar approach taken by the Inner House of the Court of Session in Scotland, see Advocate General for Scotland v Murray Group Holdings Ltd [2015] CSIH 77 at [44]–[47].4.349This approach is already reflected in the case-law that applies when the exercise of judgment was made on the basis of witnesses seen and heard by the tribunal below
124Bridge LJ in Re F (a minor) (wardship: appeal) [1976] 1 All ER 417 at 439–440. or involved an assessment of credibility.
125Baroness Hale in Re J (A Child) (Custody rights: Jurisdiction) [2006] 1 AC 80 at [10]. And see above on the difficulty of showing perversity in a finding on credibility. These factors may have affected: (i) the findings of primary fact; (ii) the inferences of fact drawn from those facts; or (iii) the application of the legal standard to those facts. The degree of deference shown is greater to (i) than to (ii) and (iii); the courts consider that they are as able as the trial judge to draw inferences or apply standards on the basis of the primary facts found.
126Viscount Simonds and Lord Morton in Benmax v Austin Motor Co Ltd [1955] AC 370 at 373–374 and 374.4.350The approach set out in
In re B (A Child) (Care Proceedings: Threshold Criteria)127[2013] 1 WLR 1911. is a broader test than whether the decision was perverse.
128Sedley LJ in Stuart v Goldberg [2008] 1 WLR 823 at [76]. It also allows greater freedom to overturn the exercise of a discretion than if a court were reviewing the exercise of an administrative discretion.
129Re F (A Minor) (Wardship: Appeal) [1976] Fam 238, in which the majority rejected Stamp LJ’s view at 429–430; Lord Bridge in G v G [1985] 1 WLR 647 at 656. However, the approach is not taken if the judgment involved deciding whether a Convention right applied,
130In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911. although it is not necessary for the Upper Tribunal to assess the issue of proportionality afresh; it is sufficient to review its exercise by the First-tier Tribunal for error of law.
131In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911.Consistency in the balancing exercise
4.351Complete consistency between tribunals in their exercise of the balancing exercise is impossible. However, if there are clear differences of opinion among tribunals on the significance to be given to particular considerations, it is appropriate for an appellate tribunal to provide guidance.
132Lords Diplock and Salmon in Birkett v James [1978] AC 297 at 317 and 326, approving the approach in Ward v James [1966] 1 QB 273.How an error of law may be shown
4.352The error may appear expressly in the tribunal’s reasons or its existence may be inferred from the decision reached.
133Lord Denning MR in Ward v James [1966] 1 QB 273 at 293.4.353On appeal, the tribunal’s exercise of judgment must generally be assessed on the information and evidence before the tribunal. As Arden LJ explained in
Teinaz v Wandsworth London Borough Council,
134[2002] ICR 1471. a case involving a discretion to adjourn, ‘… unless permission is given for fresh evidence to be adduced on appeal, the appellate tribunal makes this determination on the factual material before the inferior tribunal’.
135[2002] ICR 1471 at [40].How an error of law may not be shown
4.354It is not possible to show that an exercise of judgment involved an error of law by reasoning from analogy from other cases, because the nature of the exercise is not compatible with reasoning by analogy.
136Nancollas v Insurance Officer [1985] 1 All ER 833 at 835. See also chapter 13.4.355Nor is it possible to show an error of law by pointing to the possibility of a different decision. Whenever the circumstances are such that a balancing exercise has to be undertaken in order to exercise a judgment, it is inevitable that there will be at least two possible decisions. The fact that a judge could reasonably have exercised the judgment differently merely emphasises the nature of the task and does not of itself show that there may have been an error of law.
137R v B (Judicial discretion) (2008) Times 22 May.4.356In
R (Evans) v Her Majesty’s Attorney-General and the Information Commissioner,
138[2013] 3 WLR 1631. Davis LJ said that a decision involving an evaluation, as opposed to a discretion, did not fit the classic division between issues of fact, law and mixed fact and law.
139[2013] 3 WLR 1631 at [109].Grounds for judicial review
4.357Every ground for judicial review is an issue of law for the purposes of an appeal on a point of law.
140Auld LJ in Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306 at 313; Lord Templeman in Re Preston [1985] AC 835 at 862; and Carnwath LJ in E and R v Secretary of State for the Home Department [2004] QB 1044 at [40]–[43]. However, it is preferable to avoid the language of judicial review. In
John Dee Ltd v Customs and Excise Commissioners,141[1995] STC 941 at 950 and 952. the Court of Appeal recommended that tribunals should not refer to
Wednesbury principles because the context in which they were formulated could lead to confusion.
Procedural matters
Breach of rules of procedure
4.358The significance of breach of rules of procedure is dealt with in chapter 3.
Fairness
4.359This is the subject of the principles of natural justice
142Lord Hope in Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at [6]. and article 6. These are dealt with in chapter 3.
143See para 3.153 onwards.4.360It has been said that this is a right that arises separately from the outcome of the proceedings. Even if the outcome has been upheld on appeal, the parties were nonetheless entitled to fairness in the proceedings which might have come to different findings of fact.
144Stansbury v Datapulse plc [2004] ICR 523. However, this is not easy to reconcile with the modern emphasis on the materiality of an error of law.
Delay
4.361This is additional to the right to a hearing within a reasonable time.
145Lord Hope in Porter v Magill [2002] 2 AC 357 at [108] and Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [2]. Delay may justify a court intervening while the delay is running,
146Sedley LJ in McKee v Secretary of State for Work and Pensions [2004] EWCA Civ 334 at [9] (refusing an application for permission to appeal). imposing some sanction or criticism for the tribunal or its administration,
147Kwamin v Abbey National plc [2004] ICR 841 at [12]. or awarding damages from the State.
148Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [43]. But the issue here is the effect of the delay on the decision as between the parties. The question is: has the delay affected the decision or its reasons? If it has not, there is no reason why one of the parties should bear the consequences. Nor does delay necessarily justify a rehearing, which could of course compound the delay.
149Kwamin v Abbey National plc [2004] ICR 841 at [12].4.362Delay in proceedings
150For delay in commencing proceedings and the legal techniques by which it is minimised, see chapter 2. may arise at three stages.
4.363The first stage at which delay may occur is before the case is heard. At this stage, the issue is whether the evidence was still obtainable and reliable.
151Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1489.4.364The second stage at which delay may occur is between the hearing and the decision. The dangers of delay were set out by Mummery LJ in
Connex South Eastern Ltd v Bangs:
152[2005] ICR 763 at [3]–[4].The likely effects of delayed decision-making, which can be serious, are relevant in determining what is a reasonable time. A tribunal’s delay prolongs legal uncertainty and postpones finality. It increases anxiety in an already stressful situation. It may cause injustice. A claimant in the right is wrongly kept out of his remedy and a defendant in the right has to wait longer than is reasonable for the allegations and claims against him to be rejected. It is self evident that delay may also have a detrimental effect on the quality and soundness of the decision reached.
153See also Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1489. This is more likely to occur where the decision turns less on the interpretation and application of the law than on the resolution of factual disputes, on which the tribunal has heard contradictory oral evidence from witnesses.
154Including the assessment of credibility, on which see Sambasivam v Secretary of State for the Home Department (1999) Times 10 November. Excessive delay may seriously diminish the unique advantage enjoyed by the tribunal in having seen and heard the witnesses give evidence and may impair its ability to make an informed and balanced assessment of the witnesses and their evidence.
4.365Delay can also undermine the loser’s confidence in the decision.
155Sambasivam v Secretary of State for the Home Department (1999) Times 10 November.4.366The significance of delay depends on whether the appeal lies on any grounds or on an issue of law. For appeals on any ground, the issues were considered by the Privy Council in
Cobham v Frett.156[2001] 1 WLR 1775. Lord Scott said:
In their Lordships’ opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge’s evaluation of the evidence and of the witnesses was absent. It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge’s notes, not only of the evidence but also of the parties’ submissions. In the present case the judge’s notes were comprehensive and of high quality. As to demeanour, two things can be said. First, in their Lordships’ collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the rereading. Second, every experienced judge … is likely to make notes as the trial progresses recording his impression being made on him by the witnesses. Notes of this character would not, without the judge’s permission or special request being made to him, form part of the record of an appeal. They might be couched in language quite unsuitable for public record. In the present case delay, with a consequent dimming of the judge’s recollection of the evidence and of the witnesses demeanour, was not a ground of appeal. In these circumstances it is, in their Lordships’ opinion, impermissible to conclude from the fact of a 12-month delay that the judge had a difficult task, let alone an ‘impossible’ one … in remembering the demeanour of witnesses.
In their Lordships’ opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.’
157[2001] 1 WLR 1775 at 1783–1784.4.367For appeals on an issue of law, the position is different. In
Connex South Eastern Ltd v Bangs,
158[2005] ICR 763 at [42]. Mummery LJ explained:
There are serious objections to transplanting the ‘wrong/unsafe decision’ approach from an ordinary civil appeal to an appeal from the decision of an employment tribunal, where the right to appeal is confined by statute to questions of law. To do so would, in my view, enable appellants to challenge facts found by a tribunal, whose decision on the facts or on the claims could not be characterised as perverse. This would circumvent the policy of s 21(1) of the 1996 Act to confine tribunal appeals to questions of law. As I shall explain, this result is not justified by the 1998 Act or by article 6 of the Convention.
4.368The basic position is that a delay at this stage is a matter of fact, not law.
159[2005] ICR 763 at [43]. Accordingly, it cannot found an appeal on a matter of law. However, there are two circumstances in which the delay or its effect may involve an issue of law.
160Outside the context of a statutory appeal, delay may give rise to a right to damages from the state for delay: [2005] ICR 763 at [43]. First, it may cause the decision to be perverse, either in its overall conclusion, on specific matters of material fact, or on its assessment of credibility.
161[2005] ICR 763 at [43]. Second, it may involve a serious procedural error or material irregularity. This will involve an issue of law if it deprived a party to the proceedings of the substance of that party’s right to fairness in the proceedings and if it would be unfair or unjust to allow the decision to stand.
162[2005] ICR 763 at [43].4.369The third stage at which delay may occur is between the decision and the giving of reasons. The delay may call into question whether the reasons could be reconstructed.
163Nash v Chelsea College [2001] EWHC 538 (Admin). However, it is appropriate to allow the author of the reasons the opportunity to explain how the reasons were reconstructed.
Record of proceedings
4.370An inaccuracy or uncertainty in the record of evidence may make the tribunal’s decision erroneous in law. Whether or not it does so is determined on the circumstances as a whole. In
De Silva v Social Security Commissioner,164[2001] EWCA Civ 539. the tribunal’s chairman was under a duty to make a record of proceedings. The appellant argued that the chairman’s record was wrong and that this had led the tribunal into error. Latham LJ analysed the evidence and the tribunal’s reasons and concluded that the record was not inaccurate as alleged. He said:
… although I accept that a failure to make a proper record of the hearing could result in sufficient prejudice for it to amount to an error of law, that is not this case. The wording of the answer supports the assertion in the written decision as to the provenance of the answer. I am quite satisfied that there is therefore no uncertainty prejudicial to the appellant.
165[2001] EWCA Civ 539 at [13].4.371In
R(DLA) 3/08, a Tribunal of Commissioners decided that there was an error of law if the absence of a record of proceedings resulted in a real possibility of unfairness or injustice.
166R(DLA) 3/08 at [27]–[28]. This may depend on the extent to which evidence of what took place at the tribunal can be obtained from other sources.
Decision
4.372A tribunal must act within its jurisdiction, and its decision must be expressed in terms that are capable of being implemented, based on the correct law, and not perverse.
Jurisdiction
4.373This is covered in chapter 2.
4.374A tribunal must not act outside its jurisdiction or purport to exercise powers within its jurisdiction that it does not have.
4.375It should be obvious that a tribunal must not make a decision which it knows is outside its powers, even with the intention of forcing an uncooperative party to participate in the proceedings.
167Hall v Hall [2008] 2 FLR 575.4.376A tribunal must not refuse to exercise its jurisdiction. In
MS (Ivory Coast) v Secretary of State for the Home Department,168[2007] EWCA Civ 133; (2007) Times 27 March. the claimant appealed to the Asylum and Immigration Tribunal against the refusal of leave to remain. She relied on article 8 of the European Convention on the basis that she had an outstanding application for contact with her children. The Secretary of State argued that no removal directions had been given and would not be given pending the determination of the application for contact. Relying on that concession, the tribunal decided that the claimant’s article 8 rights were sufficiently protected and dismissed her appeal. The Court of Appeal decided that the tribunal should have decided whether, on the facts at the time of the hearing, her removal would have violated her rights. If so, the tribunal should have decided that she be given leave to remain.
4.377If a tribunal acts in part outside its jurisdiction, it may be possible to severe and disregard that part of its decision.
169R(M) 1/98 at [3]. However, the decision remains valid until set aside.
170R(I) 9/63 at [20]–[22].Implementation
4.378In order to be implemented, a decision must be complete, comprehen-sible, and not self-contradictory.
4.379What is necessary to make a decision complete depends on the subject matter of the decision. It includes matters like the date from which it becomes effective, the period for which it is operative, any amounts of money involved, and precisely what has to be done in order to implement or comply with the decision. It may be permissible to leave arithmetical matters to the decision-maker, subject to a liberty to restore in the event of a dispute.
4.380A decision may also be incomplete if it fails to deal with every issue is in dispute, within its jurisdiction, and essential to its decision. As a matter of good practice, the decision should deal with every issue, however hopeless. But as a matter of law, a decision is not erroneous in law merely because it fails to refer to those hopeless points.
171Srimanoharan v Secretary of State for the Home Department (2000) Times 29 June.Perversity
4.381A decision is perverse if it one that no tribunal, properly instructed on the law, was entitled to make. This may be because there was only one decision that the tribunal was entitled to make on its findings of fact and the law. Or it may be because this was not one of a number of decisions that it was entitled to make on those facts and the law. An argument on this ground must be particularised, so that the other party can deal with it, and be overwhelming in order to be successful.
172Mummery LJ in Yeboah v Crofton (2002) Times 20 June. This is especially so in respect of challenges to a tribunal’s assessment of credibility.
173Mummery LJ in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [43].Alternative dispute resolution
4.382The rules of procedure provide that tribunals should inform the parties about appropriate alternative methods for the resolution of their dispute and, if the parties wish and it is compatible with the overriding objective, facilitate their use.
174See chapter 6. The rules of procedure are worded as an exhortation, not a command. A failure to comply is not an error of law.
Adequate reasons
4.383This may be treated as an example of a procedural matter. But the range of issues involved justifies separate coverage. The adequacy of reasons, the consequences of inadequacy and the effects of delay in providing reasons are dealt with below at para 4.415 onwards.