Manjit Gill QC: Supreme Court rules in favour of restricted judicial review of the Upper Tribunal

Wed, 22 Jun 2011

The Supreme Court gave judgment in these linked appeals today. The case concerns the new unified Tribunal system brought about by the Tribunals Courts and Enforcement Act 2007. The Court rejected the position of the Divisional Court and of the Court of Appeal which had each held that judicial review of the Upper Tribunal was available but only in two extreme circumstances: pre-Anisminic error of law (i.e. where a Tribunal has acted outside its jurisdiction altogether) or where there has been a wholesale collapse of fair procedure. This made judicial review virtually useless as a remedy. 
In Scotland, the Court of Session had gone the other way and held that judicial review was not so restricted. On this jurisdictional issue, the Supreme Court allowed the appeals of Cart and MR (Pakistan), and rejected the appeal of the Advocate-General for Scotland in Eba. It held that judicial review is available but on a significantly broader basis which is that, before permission for judicial review is granted, the court should be satisfied that the case raises an important point of principle or practice or that there is some other compelling reason for the Administrative Court to hear the case. This is the same as the second-appeals test which appears in s.55 of the Access to Justice Act 1999 governing, for example, certain appeals from the county court to the Court of Appeal. It also appears in s.13(6) of the TCEA 2007 governing appeals from the Upper Tribunal to the Court of Appeal. 
On the particular facts, the Court held that neither Cart nor MR (Pakistan) raised issues which passed that test. The importance of the case lies however in the significant opening up of judicial review which goes materially further than the decisions of the Divisional Court and of the Court of Appeal but which does not permit a a completely unrestricted form of judicial review. 
Manjit Gill QC appeared for the Appellant in MR (Pakistan).

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