Dear Information Commissioner's Office,

In Kirkham v the Information Commissioner EA/2018/0036, at para. 48, reference is made to costs:

“It seems to me that the Appellant’s conduct of these proceeding may have been such as to engage the Tribunal’s costs jurisdiction under rule 10.”


Paragraph 50 includes this:

“I invite the Respondent to make an application under rule 10(1)(b) or to inform the Tribunal within 14 days that she does not wish to do so.”

1. Please provide the number of applications the Commissioner has been invited to make by the FTT under rule 10(1) for each of the past five years.

2. Please provide the number of applications the Commissioner has made under rule 10(1) for each of the past five years.

3. Please provide the total value of all applications made by the Commissioner under rule 10(1) for each of the past five years.

4. Please provide the total sum recovered in respect of all applications made by the Commissioner under rule 10(1) for each of the past five years.

Yours faithfully,

J Roberts

Information Access Inbox, Swyddfa'r Comisiynydd Gwybodaeth

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

If you have made a request for information held by the ICO we will contact
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answer your request. If we don't need any further information we will
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If you have raised a new information rights concern - we aim to send you
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If you have requested advice - we aim to respond within 14 days. 

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Yours sincerely

The Information Commissioner’s Office

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Gadawodd J Roberts anodiad ()

Dr Kirkham's appeal (GIA/2319/2019):

His research paper on Section 12 and the adequacy of computer searches by public authorities:

"How long is a piece of string? the appropriateness of search time as a measure of ‘burden’ in access to information regimes"

Swyddfa'r Comisiynydd Gwybodaeth

9 March 2020


Case Reference Number IRQ0909379


Dear J Roberts,

We write in response to your recent request for information. We received
your request on 10 February 2020 and we are now in a position to respond.
We have dealt with your request in accordance with your ‘right to know’
under section 1(1) of the Freedom of Information Act 2000 (FOIA).
In your email you asked us to:

 1. Please provide the number of applications the Commissioner has been
invited to make by the FTT under rule 10(1) for each of the past five
 2. Please provide the number of applications the Commissioner has made
under rule 10(1) for each of the past five years.
 3. Please provide the total value of all applications made by the
Commissioner under rule 10(1) for each of the past five years.
 4. Please provide the total sum recovered in respect of all applications
made by the Commissioner under rule 10(1) for each of the past five

As the ICO records First-tier Tribunal casework by calendar year, we have
scoped your request as covering the time period January 2015 – December
Having consulted with the relevant departments of the ICO, we can advise
you that it is likely we hold some information within the scope of your
request, but we don’t hold this information in any meaningful way—it’s not
information we specifically collect or record separately. 
The information you have requested would be held within our Tribunal case
files. Unfortunately, due to amount of cases within the scope of your
request (there were 472 appeals in the 2019 calendar year alone, from
which we have based our estimate) and the way we store our case records,
it would not be a simple or speedy matter to search for and retrieve the
information you have requested. We would need to manually access each case
and identify those documents which would likely hold relevant information.
In respect of your first request, this search would involve reviewing the
same [1]decisions from the First-tier Tribunal (General Regulatory
Chamber) that are already available to be searched by any interested
member of the public.

Section 12 of the FOIA makes it clear that a public authority is not
obliged to comply with an FOIA request if the authority estimates that the
cost of complying with the request would exceed the ‘appropriate limit'. 
The ‘appropriate limit’ for the ICO, as determined in the ‘Freedom of
Information and Data Protection (Appropriate Limit and Fees) Regulations
2004’ is £450.  We have determined that £450 would equate to 18 hours
Working on the basis that it would take at least 5 minutes to check each
case, identify the correct documents, and then export relevant information
in an appropriate fashion for disclosure, it would take us more than 39
hours to comply with your request, even with a reduced timescale of just
one calendar year.
Therefore, it is our position that we are not required to respond to your
information request.
By way of advice and assistance we can advise you that the Regulatory
Legal team have anecdotally advised that applications for costs are rare,
with parties bearing their own costs in most cases before the Tribunal.
Any decision to pursue costs is made on a case by case basis and this
information is not then centrally recorded. Cases where the Tribunal
‘invites’ the Commissioner to consider costs are even rarer—only the case
you referenced in your request ([2]EA/2018/0036) could be recalled. We
have no business need to record where such an invitation is made.
This concludes our response to your request.
Review Procedure
If you are dissatisfied with this response and wish to request a review of
our decision or make a complaint about how your request has been handled
you can write to the Information Access Team at the address below or
e-mail [3][ICO request email].
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response.  Any such request
received after this time will only be considered at the discretion of the
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation. To make such an application, please write
to our Customer Contact Team at the address given or visit our website if
you wish to make a complaint under the Freedom of Information Act.
A copy of our [4]review procedure can be accessed from our website.

Yours sincerely

Shannon Keith
Senior Information Access Officer, Risk and Governance Department
Corporate Strategy and Planning Service
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 313 1636  F. 01625 524510  [5]  [6]
For information about what we do with personal data see our [7]privacy
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Gadawodd Dr Troy Wortham anodiad ()

Something here if it's of any interest:

Gadawodd J Roberts anodiad ()

UT decision delivers a bloodied nose to the FTT president. The FTT president erred in law by striking out the proceedings:

GIA/2422/2019 [2020] UKUT 93(AAC)

The Commissioner didn't fare any better:

“21. The Commissioner argued that the Chamber President had been entitled to make the decision she did. I do not accept that, for the reasons I have given.”

The Judge observed:

“14. Dr Kirkham cannot be blamed for taking up employment abroad. There is no suggestion that this was a tactic to delay the proceedings on the appeal. Courts and tribunals conduct hearings by telephone or video link and take account of time differences. Just off the top of my head, the Upper Tribunal has conducted hearings with parties in Switzerland, Malta and Canada.”

The appeal on the failure of the FTT President to recuse herself got nowhere (like most, I think).

The Judge cites Dobbs v Triodos Bank NV [2005] EWCA Civ 468 (para. 33) to indicate the high hurdle a litigant must jump if he is to succeed on recusal.

In para. 25 the Judge delivers some profound thoughts on the 'fair-minded and informed observer' who pops up often in the courts.

Here's another example where she popped up (para. 100):

[2019] EWHC 1561(Admin)

Gadawodd J Roberts anodiad ()

'The principles governing recusal' (from para 14):

'19. Thus in Otkritie International Investment Management Limited v Urumov [2014] EWCA Civ 1315 the Court of Appeal held that the fact a trial judge had made adverse findings against a party did not preclude him or her sitting in subsequent proceedings. As Davis LJ further noted in Shaw v Kovac (at [19]), “It is striking that in that case the trial judge was held by the Court of Appeal to have been positively wrong to recuse himself on the application of the defendant in circumstances where, in the same complex commercial proceedings, the judge previously had made findings of actual fraud on the part of the defendant.”'

Gadawodd J Roberts anodiad ()

The Chamber President took another hit in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames[2020] UKUT 174 (AAC):

"38. ...It was, though, wrong to strike out the part of the proceedings relating to his application to certify an offence of contempt, because it had jurisdiction over that issue. To that extent, the tribunal’s decision was in error of law and is set aside. The tribunal will now deal with that issue."

Paragraph 16 of Kirkham states:

"16. The Chamber President’s second ground* related to an application to the Upper Tribunal for permission to appeal to the Upper Tribunal against an interlocutory ruling earlier in this case. This is Upper Tribunal case GIA/0306/2019, which I have mentioned already. Dr Kirkham had asked the Administrative Appeals Chamber not to disclose to the First-tier Tribunal that he was applying for permission to appeal."

* to strike out the application

The Moss decision includes:

"3. The GRC refused Mr Moss permission to appeal against the decision. There is some indication in the GRC’s file that Mr Moss had made an application directly to the Upper Tribunal Administrative Appeals Chamber (‘AAC’) for permission to appeal (which he is able to do). As the GRC and the AAC are separate bodies, the GRC does not have (and does not need to have) full details about the progress of that appeal."

Gadawodd J Roberts anodiad ()

Chamber President's latest invite to Commissioner to apply for costs:

"30. I also agree with the Commissioner that such an approach involves a misuse of FOIA. The Commissioner may wish to refer to the views I have expressed here in making an application for a strike out, or costs, or for a Civil Restraint Order in any future case in which the Appellant seeks to resurrect these issues. I hope the Appellant will now regard this matter as closed."