Circulation of draft decisions to parties before they are perfected

HM Courts and Tribunals Service did not have the information requested.

Dear Her Majesty's Courts and Tribunals Service,

Please provide the information you hold on the circulation of draft decisions by tribunals/judges to parties prior to their being perfected. I'm particularly interested in information relating to the FTT (GRC).

Yours faithfully,

J Roberts

J Roberts left an annotation ()

Related information is provided in the recently decided, though not yet published, decision EA/2019/0032:

'103. In the normal way, a copy of this decision was sent to the Commissioner and to the PHSO for them to check the draft and make representations as to whether any parts of the decision should not be disclosed. The version of the decision provided to the Appellant and promulgated generally will have been redacted and/or edited if necessary, in the light of such representations.' (see comment 14/5/21)

https://www.whatdotheyknow.com/request/t...

I have no recollection of any other FTT (GRC) decision including similar information. If anyone can point me to one, it would be greatly appreciated.

Information on the circulation of judgments:

'There is much case law where this practice has been discouraged; not least so as to not create uncertainty or disrupt the finality of judgment. Email correspondence sent directly to the judge without being copied to the other side has been heavily criticised as inappropriate and the court was very concerned about the appearance of “closed door justice”.'

https://ouclf.law.ox.ac.uk/paragraph-168...

http://disputeresolutionblog.practicalla...

J Roberts left an annotation ()

" https://www.bailii.org/ew/cases/EWCA/Civ...

In the above link it states in the addendum:

'I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgement has been provided, to ask him to reconsider his conclusions. It is a growing practice...'" (see comment of 17/5/21)

https://www.whatdotheyknow.com/request/t...

J Roberts left an annotation ()

At paragraph 24 of MH v SSWP (ESA)[2021] UKUT 90 (AAC) Judge Wikeley cites Lord Kerr:

"It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side made behind the back of the other."'

https://assets.publishing.service.gov.uk...

GRC, HM Courts and Tribunals Service

1 Attachment

Dear J Roberts,

 

Please see attached acknowledgment letter.

 

Yours Sincerely,

 

GRC

General Regulatory Chamber| HMCTS | Arnhem House | Leicester | LE1 6LR

Web: [1]www.gov.uk/hmcts

 

For information on how HMCTS uses personal data about you please see:
[2]https://www.gov.uk/government/organisati...

 

show quoted sections

M Boyce left an annotation ()

If the judge does ask for representations on the draft decision from the Respondent's, whilst simultaneously excluding the Appellant, the question must be: is this absolutely necessary?

If the answer is no then the decision cannot be fair.

If the answer is yes, then why would it be absolutely necessary to ask the Respondent's to make representations as to what should be disclosed? Why is the judge incapable of deciding what should be disclosed? It should not be down to the Respondent's to say what should be disclosed.

The risk of apparent bias to too great to allow this practice, and most people would deplore it.

I deplore it and I will challenge it.

J Roberts left an annotation ()

M Boyce,

You are right to challenge this secretive and apparently widespread practice. Scarman J takes a dim view of it:

'104. And in Brinkley v Brinkley [1965] P 75, 78 Scarman J said that "for a court to take into consideration evidence which a party to the proceedings has had no opportunity during trial to see or hear, and thus to challenge, explain or comment upon, seems to us to strike at the very root of the judicial process".'

(see para. 24 of MH v SSWP (ESA)[2021] UKUT 90 (AAC))

https://assets.publishing.service.gov.uk...

Link to appeal exposing the FTT (GRC) practice of circulating draft decisions to only the IC and public authorities:

https://www.whatdotheyknow.com/request/t...

J Roberts left an annotation ()

Useful information can be found on the Panopticon blog:

https://panopticonblog.com/2011/07/22/dr...

Link to case referred to on blog:

IICUS v IC and BIS and Ray [2011] UKUT 205 (AAC):

https://www.bailii.org/uk/cases/UKUT/AAC...

J Roberts left an annotation ()

Here is an example from the Queen's Bench Division showing the sort of message included in circulated draft decisions:

Dad v The GDC [2021] EWHC1376 (QB)

https://www.bailii.org/ew/cases/EWHC/QB/...

It concerns a dentist with an 'eventful' regulatory history.

'Judgment Approved by the court for handing down (subject to editorial corrections)

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website.

Draft 21 May 2021 13:17

The date and time for hand-down is deemed to be 10:30 am 25 May 2021.

If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.'

M Boyce left an annotation ()

This appears to only concern 'editorial corrections' - whatever that means.

It appears to have been circulated to all parties. If a draft judgement is circulated to all parties, then that would seem to be fair, but what is not fair is when it is only circulated to the Respondents for them to potentially change the substantive detail of the decision, and the Appellant is left like a lemon in the dark.

The FTT can claim this is fair until they are blue in the face, but no right-minded and fair-minded person would agree.

M Boyce left an annotation ()

https://www.bailii.org/ew/cases/EWCA/Civ...

The above Court of Appeal judgement is important because it shows how the FTT should treat litigants in person fairly when dealing with closed material, and this extends to draft judgements..

In paragraph 35 it discusses how MAXIMUM candour should be employed in such cases.

In my Appeal EA/2019/0032 the judge went for MINIMUM candour:

She only asked for and only received largely irrelevant legal advice from the PHSO;

She did not hold a hearing because neither the PHSO or the ICO would attend or answer any questions;

She allowed both the PHSO and the ICO to redact almost everything that I was sent;

She decided the case on the basis of this largely irrelevant legal advice;

She allowed the PHSO and the ICO to make representations as to what the final decision should actually say.

Where is the fairness and maximum candour in any of this?

Our justice system is a thoroughly rotten joke.

J Roberts left an annotation ()

M Boyce,

You make some very good points.

I have great difficulty in seeing how the judge thought she dealt justly with your appeal:

'1.1—(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable—

(a) ensuring that the parties are on an equal footing;'

https://www.legislation.gov.uk/uksi/1998...

You seem to have had a foot broken!

And there is also this:

'Duty of the parties

1.3 The parties are required to help the court to further the overriding objective.'

https://www.legislation.gov.uk/uksi/1998...

M Boyce left an annotation ()

Anyone reading the judge's decision can make their own mind up about whether she acted fairly and justly.

Any notion of justice for ordinary folks in this country is just an illusion cooked up by the Establishment to keep people quiet. If religion is the opiate of the people, 'justice' is the magic mushroom - it will make your head spin and you will feel rotten afterwards.

The overriding objective of the PHSO and the ICO is win at any cost. The law is not going to stand in their way.

The FTT have today acknowledged receipt of my Appeal to the UTT, so the PHSO and the ICO will soon be racing into action.

The Establishment has always and will always cover-up its wrongdoings. i would defy anyone to show me an example of where this has NOT happened.

GRC, HM Courts and Tribunals Service

1 Attachment

 

Dear J Roberts,

 

Please see attached letter.

 

Yours Sincerely,

 

GRC

General Regulatory Chamber| HMCTS | Arnhem House | Leicester | LE1 6LR

Web: [1]www.gov.uk/hmcts

 

For information on how HMCTS uses personal data about you please see:
[2]https://www.gov.uk/government/organisati...

 

show quoted sections

M Boyce left an annotation ()

This is interesting.

So the MoJ state they hold no information on the circulation of draft judgements. I don't believe a word of it.

They also state that this is because there is no legal requirement to do so. This is remarkable, given that what the MoJ is doing is not legal.

They also say that the circulation of drafts is 'most likely be something SPECIFIC from the Judge.'

Something specific? The judge in my case described the circulation as the NORMAL way. This appears to be contradictory.

This gets more and more dodgy by the day. We need to get to the truth about what is going on here.

M Boyce left an annotation ()

Two other important points to mention.

Firstly, why is the circulation of drafts not mentioned in the GRC Rules?

These are the legal rules that the FTT must follow; if it then does things like the circulation of draft decisions it is acting ultra vires.

Secondly, why is the FTT doing something which appears to be not legally allowed, especially as it is not even necessary? Why is an FTT judge so unable to decide for themselves what information should or should not be disclosed in their decision? Why do they have to rely on the PHSO to decide what should or should not be disclosed when this organisation is thoroughly incompetent and is itself doing something that it fully admits is illegal?

Why don't we just give prisoners the keys to their own cell doors and they can decide whether they should go free? Would this be 'specific' or would it be the 'normal way'?

Don't ask the MoJ because they know nothing.

J Roberts left an annotation ()

Request to ICO:

'1. Please provide what information you hold on the circulation of draft decisions by tribunals to parties prior to their being perfected.

2. Please provide the number of draft decisions circulated to you by tribunals in 2019/20.

3. Please provide the number of draft decisions circulated to you by tribunals in 2019/19 on which you commented.'

ICO response:

'I can tell you that we do hold some information in scope of your request, but providing it to you is likely to breach the cost limit set out in section 12 of the FOIA. However, I am still having internal discussions about this and I hope to provide you with a full response in the week
commencing 7 June 2021.'

https://www.whatdotheyknow.com/request/c...

The ICO holds information but the HMCTS holds nothing. The plot thickens!

M Boyce left an annotation ()

The ICO may hold information on the circulation of draft judgements, but as they have already suggested, they will not provide it because they will cook-up some exemption.

Then of course if you make an appeal to the FTT they will then ask the MoJ to change their draft judgement to their liking, and Bob's your uncle - you lose and the Establishment wins!

What a wonderful justice system we have. The envy of the world, we are told???

M Boyce left an annotation ()

J Roberts

Your request, and the GRC's response, is likely to prove very useful for my direct appeal to the UTT (the FTT will of course refuse permission).

The GRC Rules say nothing on the subject of the circulation of draft decisions, and now the GRC has confirmed that they do not hold any information on this subject.

This means that what the FTT is doing is not legal. It is ultra vires (beyond their legal powers).

This is going to be crucial in my direct appeal to the UTT.

There can be no doubt that what the FTT is doing is not fair, and there can now be no doubt that what it is doing is not legal. This represents an error of law and therefore ipso facto the FTT's decision in my appeal must be overthrown and my appeal heard again by a differently constituted tribunal.

J Roberts left an annotation ()

You were right about the judge refusing you permission.

Thanks for posting her reasons and for continuing to shine a light on the FOI regime:

https://www.whatdotheyknow.com/request/t...