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R (Cart) v. Upper Tribunal [2011] 3 W.L.R. 107 (Supreme Ct); [2011] Q.B. 120 (CA & Div Ct)

DATE: 21 Jun 2011

This was a test case concerning the circumstances in which the unappealable decisions of the Upper Tribunal (principally the refusal by the Upper Tribunal to grant permission to appeal against a decision of the First-tier Tribunal) are amenable to judicial review in the High Court.

The Divisional Court and the Court of Appeal had accepted the Government's submission that, whilst inferior tribunals were historically amenable to judicial review, following the establishment of the Upper Tribunal by the Tribunals Courts and Enforcement Act 2007 judicial review was only available in the wholly exceptional circumstances of an outright excess of jurisdiction or a procedural irregularity which denied the right to a fair hearing.

Mr Cart appealed to the Supreme Court, arguing that in the absence of an express ouster clause in the 2007 Act judicial review should remain available on ordinary grounds, or alternatively that the same approach should be taken as in the case of second appeals, namely that permission to bring the claim should be granted if it raises an important point of principle or practice or there is some other compelling reason for the High Court to hear the claim. This followed a suggestion of Dyson LJ (as he then was) in R (Wiles) v Social Security Commissioner [2010] EWCA Civ 258, heard between the judgment of the Divisional Court and Court of Appeal in Cart.

At the heart of the debate were fundamental constitutional questions as to the relationship between the courts and tribunals, the principles underpinning the High Court's judicial review jurisdiction and whether the scope of judicial review could be restricted absent an express statutory provision to that effect.

The Supreme Court (L Phillips PSC, L Hope DPSC and L Rodger, L Hale, L Brown, L Clarke & L Dyson JJSC) rejected the Court of Appeal's approach and, accepting Mr Cart's alternative submission, held that the same test as for second appeals should be applied by the High Court in considering applications for permission to bring a judicial review claim against an unappealable decision of the Upper Tribunal.

Richard Drabble QC and Charles Banner appeared for Mr Cart, instructed by David Burrows Solicitors and Advocates.

Tim Buley (led by Michael Fordham QC) appeared for the Public Law Project, who were granted permission to intervene in support of the Appellants.