NF v FIRST TIER TRIBUNAL AND CICA [2012] UKUT 287
FACTS:-
This case involved two separate applications. In the first case, the Applicant applied to the CICA for compensation arising out of an assault that occurred in Scotland. She herself lived in Scotland. Her claim was rejected by the Authority and so she applied for a review, which again was rejected. She then sought to appeal out of time, and her application to extend the time limit was rejected along with the appeal. That decision was taken by a Tribunal Judge in England. She then applied for judicial review to the Upper Tribunal.
In the second case, the decision of the First Tier Tribunal was to strike out a claim for compensation on the basis that the alleged criminal injury (sexual abuse) was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family. The strike out was therefore based on the pre-1979 para 7(b) “same roof rule”. The alleged injury took place in England. The Applicant in that case claimed that he was abused when he was a child living at his foster home by someone about 12 years older than him who was or had been fostered by the same foster mother. The strike out warning was issued in Scotland and the strike out decision was made in England.
The applications raised jurisdictional issues, which turned on the construction of sections 15 to 21 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). The question was whether the Upper Tribunal or the Scottish Court of Session could exercise jurisdiction over an application for judicial review.
JUDGEMENT:-
The Tribunal consisting of Mr Justice Charles, Lord Brailsford and Judge Levenson said that broadly stated, the jurisdictions of the High Court and the Court of Session to review the decisions of inferior courts and tribunals and other governmental and public bodies exercising powers based on the laws of the relevant country, were founded in the common law. Those jurisdictions were directed to seeing that such courts, tribunals and bodies did not exceed or abuse their powers and in the ordinary course of events, they would be exercised by the superior court over decisions made by such courts, tribunals and bodies in its jurisdiction (in the sense of its territorial reach). However that broad principle had to be handled circumspectly where the issue concerned the jurisdiction (in the sense of the legal powers) of courts of the constituent parts of the United Kingdom (Tehrani v Home Secretary [2007] UKHL 47, [2007] 1 AC 521 at paragraphs 21 and 22).
The Tribunals, Courts and Enforcement Act 2007 Act had created the Upper Tribunal. It had (a) an appellate jurisdiction throughout the United Kingdom, and (b) a judicial review jurisdiction and its equivalent in Scotland, by two routes.
The first route – sections 15 to 19 of the 2007 Act. This judicial review jurisdiction was not based on the common law but on statute. That statutory jurisdiction was conferred in respect of, and only in respect of, “cases arising under the law of England and Wales or under the law of Northern Ireland.” The meaning and application of that condition or trigger was central to the jurisdictional issues raised in this and the other case before the Tribunal, and it would be referred to as the “section 15(1) condition”.
Section 18 of the 2007 Act said that if four conditions were met, the Upper Tribunal would have the function of deciding the application. Condition 3 referred to a class of cases set out by the Lord Chief Justice’s Practice Direction [2009] 1 WLR 327, which included:-
a) any decision of the First-tier Tribunal on an appeal made in the exercise of the rights conferred by the Criminal Injuries Compensation Scheme in compliance with section 5 (1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews); and
(b) any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11 (5) of the 2007 Act.
The second route - sections 20 and 21 of the 2007 Act - Scotland. The Court of Session could exercise its supervisory jurisdiction in both of the present cases before the Tribunal. It followed that, if applications had been, or were to be, made to the Court of Session, rather than to the Upper Tribunal, sections 20 and 21 of the 2007 Act would apply to them.
In the Tribunal’s view, it was correct that applying the case of Tehrani, the Court of Session could exercise its supervisory jurisdiction in both of the cases before the Tribunal and that if applications had been made to it, rather than the Upper Tribunal, sections 20 and 21 of the 2007 Act would apply.
As the condition or trigger to the cases’ transfer to the Upper Tribunal, was the making of an application to the Court of Session challenging a decision of the First Tier Tribunal, that statutory review jurisdiction of the Upper Tribunal flowed from the existence of the common law supervisory jurisdiction that founded such an application, and so from the law of Scotland in that sense, rather than in the sense of the devolved law providing for the payment of compensation for criminal injuries that governed the decisions made by the CICA. The relevance of that applicable law would be whether its application by CICA, as the decision making public body, involved an error of law and, that was its relevance whenever and however the Upper Tribunal, the High Court or the Court of Session was exercising its review or supervisory jurisdiction.
The legislative scheme of sections 20 and 21 of the 2007 Act mirrored that of sections 15 to 18, insofar as:
(a) defined applications had to be transferred to the Upper Tribunal
(b) other applications might be transferred to the Upper Tribunal,
(c) on transfer, the Upper Tribunal had the function of deciding them, and so this was also one of its functions referred to in s. 3(2) of the 2007 Act,
(d) in so deciding them, the Upper Tribunal had to apply the principles that would be applied by the Court of Session (Section 20(1) and 21(1) to (4)).
However there were differences. Under sections 20 and 21 of the 2007 Act, the Upper Tribunal was not given defined legal powers for cases that correlated to the powers of the Court of Session when exercising its supervisory jurisdiction. Instead it was given the same powers of review as the Court of Session in respect of the application transferred to it by the Court of Session (section 21(2)) and this part of the legislative scheme did not include a provision that enabled proceedings for the review of decisions to be started in the Upper Tribunal.
The discretionary provisions relating to a transfer to the Upper Tribunal under sections 20 and 21 only applied if the subject matter of the application was not a devolved matter (Condition 3; s. 20(4) of the 2007 Act). However Condition 3 was not one of the conditions mentioned in the mandatory provisions for a transfer to the Upper Tribunal, whereas Condition 2 was (section 20(3) of the 2007 Act).
In addition, pursuant to Condition 2, by Scottish SI 2008 No 357 Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 it had been provided that:-
“2. Paragraph 3 specifies a class of application for the purposes of section 20(3) of the Tribunals, Courts and Enforcement Act 2007.
3. The class of application is an application which challenges a procedural decision or a procedural ruling of the First-tier Tribunal, established under section 3 (1) of the Tribunals, Courts and Enforcement Act 2007.”
Condition 3 provided a link to the law governing the decision which could be challenged under the supervisory jurisdiction of the Court of Session, but did not undermine the point that jurisdiction of the Upper Tribunal under sections 20 and 21 of the 2007 Act was founded on there being an application under that supervisory jurisdiction to the Court of Session.
The question of whether either or both of the cases before the Tribunal fell within the classes of applications that had to be transferred by either or both of the High Court, or the Court of Session, because they challenged, in the case of the High Court, “a decision of the First Tier Tribunal made under Tribunal Procedure Rules” and, in the case of the Court of Session, they challenged “a procedural decision or ruling” was not raised before Tribunal.
Many decisions of the First Tier Tribunal were appealable (LS v LB Lambeth [2011] AACR 27) and so (i) they were expressly excluded from the classes of case specified by the practice direction made by the Lord Chief Justice, and (ii) an appeal would be an alternative remedy. But for the existence of s. 11(5)(a) of the 2007 Act the alternative remedy of an appeal would be available against (i) the decision of the First Tier Tribunal not to extend time in this case, and (ii) the strike out decision of the First Tier in the other case.
However, the Tribunal felt that section 11(5)(a) provided that both of the decisions in these cases were excluded decisions of the First Tier Tribunal because it covered decisions of any type made on a CICA appeal. This view was supported by the approach taken in paragraph 2(b) of the practice direction issued by the Lord Chief Justice to excluded decisions within s. 11(5)(b), (c) or (f).
It followed that the decision of the First Tier Tribunal in the first case, and its strike out decision in the second case, could not be appealed to the Upper Tribunal but could be challenged by judicial review brought in the Upper Tribunal. In the second case, no application to the Court of Session to exercise its supervisory jurisdiction was likely.
It had been the contention of the CICA that the section 15(1) condition referred to the law governing the original decision made by the relevant public body, rather than to the law governing any challenge to it by way of an appeal or review, and so in this case to the law governing the application of the CICA. The Upper Tribunal did not accept this contention. The section 15(1) condition should be construed and applied as referring to cases or applications which sought the review of decisions under the law of England and Wales, as was asserted by the Applicant.
As a matter of the ordinary meaning of the statutory language such applications were within the meaning of the phrase “cases arising under the law of England and Wales” and there was no circularity in so construing it. By way of example, if the Upper Tribunal, as a court of record created by statute, was being given a jurisdiction in contract or tort, an opening condition of the empowering section that it related to cases arising under the law of contract or tort, would be a natural use of language. Also, as a matter of language, the Tribunal’s construction of the phrase fitted in with its use in section 15(5) of the 2007 Act.
The 2007 Act did not provide for mutually exclusive review jurisdictions in England and Wales on the one hand and Scotland on the other, and the neatness and attractiveness, of such a clear divide, based on CICA’s contention disappeared, leaving forum non conveniens points to determine which of the High Court (and the Upper Tribunal) and the Court of Session should determine a review of a decision, when they both had jurisdiction to do so.
The CICA’s argument did not mirror the approach of (i) section 31A of the Senior Courts Act 1981, as introduced by section 19 of the 2007 Act, and (ii) sections 20 and 21 of the 2007 Act which were clearly triggered by applications made under the law of the respective jurisdictions that governed the exercise of their review or supervisory jurisdiction. As to those jurisdictions, the place of the alleged injury would not be determinative and so they could extend to cases in which (i) the injury took place in the geographical area of the other jurisdiction, or (ii) the applicable law for determining whether compensation should be paid for the injury was the law of the other jurisdiction.
In the wider application of s. 15(1) of the 2007 Act, to cases where the underlying decision was based on the application of (i) UK wide schemes or laws, (ii) devolved matters where the applicable law was, for the time being the same throughout the UK (for example the Criminal Injuries Compensation Scheme, and (iii) the procedure of the First Tier Tribunal, a simple divide between the law applicable to the underlying decision of England and Wales on the one hand, and Scotland on the other, did not exist or was not obvious. The Tribunal gave a number of examples. Looked at as a whole, the scheme of the relevant provisions of the 2007 Act (i) was to create the Upper Tribunal as a court of record in all parts of the United Kingdom, to give it a judicial review jurisdiction, and to allocate the review or supervisory jurisdictions in respectively England and Wales and Scotland as between the courts and tribunals of those jurisdictions (in the geographical sense), and (ii) indicated that the driving feature or starting points for the different allocations and regimes was the existence of a case in which the Applicant sought relief pursuant to the powers of review and supervision in the two jurisdictions.
The Applicant in the first case wanted to make an application to the Court of Session under its supervisory jurisdiction to set aside the decision of the First Tier Tribunal not to extend time for bringing her appeal and so admit it for hearing. It was understandably pointed out that before she did so, she wished to investigate what funding and representation was available to her. She wanted to take this course because her case was that the natural or convenient forum for this challenge was Scotland, and the approach taken by the Court of Session to the time in which such proceedings for review had to be brought was different to that taken by the High Court (and thus the Upper Tribunal).
The Tribunal had been invited to bring an end to the proceedings before it on forum non conveniens grounds even though as yet no proceedings had been issued in the Court of Session. The Tribunal declined to do so because it was of the view that the better course was to adjourn the present proceedings to allow the Applicant a reasonable time to investigate funding and representation in respect of, and to start, her intended proceedings in the Court of Session. If such proceedings were started in a reasonable time, these proceedings would then be brought to an end by a stay, withdrawal or dismissal (by consent), but if they were not then, subject to further directions, they would be set down for hearing before an Upper Tribunal judge for disposal or further directions.
It had occurred to the Upper Tribunal that it might be arguable that the Scottish SI 2008 No 357 Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 cited above, had the result that the Court of Session was obliged to transfer to the Upper Tribunal the Applicant’s intended application to it because (i) conditions 1, 2 and 4 (as defined in section 20 of the 2007 Act) would be satisfied, and (ii) condition 3 did not apply to mandatory transfers. This point was not raised in argument before the Upper Tribunal, and it was a point for the Court of Session. If there was such a mandatory transfer, the problem that would then arise is that the Upper Tribunal would have a judicial review jurisdiction by two routes which would lead to it exercising those jurisdictions (and functions) on different principles. It would therefore have to choose which set of principles to apply. In this case, the forum non conveniens reasons that founded the conclusion that the Applicant should be able to pursue her challenge in the Court of Session also founded the conclusion that, if the Upper Tribunal had the function (jurisdiction) of deciding the Applicant’s challenge (i) in the present proceedings (and thus by the sections 15 to 18 route), and (ii) on a transfer from the Court of Session (the sections 20 and 21 route), it should do so by the latter route and so by applying the principles that the Court of Session would apply.
The Upper Tribunal’s conclusion on the jurisdictional issues meant that the guidance notes on the forms sent out in this and other CICA cases by the First Tier Tribunal concerning the availability of judicial review were incorrect and needed to be altered.
FACTS:-
This case involved two separate applications. In the first case, the Applicant applied to the CICA for compensation arising out of an assault that occurred in Scotland. She herself lived in Scotland. Her claim was rejected by the Authority and so she applied for a review, which again was rejected. She then sought to appeal out of time, and her application to extend the time limit was rejected along with the appeal. That decision was taken by a Tribunal Judge in England. She then applied for judicial review to the Upper Tribunal.
In the second case, the decision of the First Tier Tribunal was to strike out a claim for compensation on the basis that the alleged criminal injury (sexual abuse) was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family. The strike out was therefore based on the pre-1979 para 7(b) “same roof rule”. The alleged injury took place in England. The Applicant in that case claimed that he was abused when he was a child living at his foster home by someone about 12 years older than him who was or had been fostered by the same foster mother. The strike out warning was issued in Scotland and the strike out decision was made in England.
The applications raised jurisdictional issues, which turned on the construction of sections 15 to 21 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). The question was whether the Upper Tribunal or the Scottish Court of Session could exercise jurisdiction over an application for judicial review.
JUDGEMENT:-
The Tribunal consisting of Mr Justice Charles, Lord Brailsford and Judge Levenson said that broadly stated, the jurisdictions of the High Court and the Court of Session to review the decisions of inferior courts and tribunals and other governmental and public bodies exercising powers based on the laws of the relevant country, were founded in the common law. Those jurisdictions were directed to seeing that such courts, tribunals and bodies did not exceed or abuse their powers and in the ordinary course of events, they would be exercised by the superior court over decisions made by such courts, tribunals and bodies in its jurisdiction (in the sense of its territorial reach). However that broad principle had to be handled circumspectly where the issue concerned the jurisdiction (in the sense of the legal powers) of courts of the constituent parts of the United Kingdom (Tehrani v Home Secretary [2007] UKHL 47, [2007] 1 AC 521 at paragraphs 21 and 22).
The Tribunals, Courts and Enforcement Act 2007 Act had created the Upper Tribunal. It had (a) an appellate jurisdiction throughout the United Kingdom, and (b) a judicial review jurisdiction and its equivalent in Scotland, by two routes.
The first route – sections 15 to 19 of the 2007 Act. This judicial review jurisdiction was not based on the common law but on statute. That statutory jurisdiction was conferred in respect of, and only in respect of, “cases arising under the law of England and Wales or under the law of Northern Ireland.” The meaning and application of that condition or trigger was central to the jurisdictional issues raised in this and the other case before the Tribunal, and it would be referred to as the “section 15(1) condition”.
Section 18 of the 2007 Act said that if four conditions were met, the Upper Tribunal would have the function of deciding the application. Condition 3 referred to a class of cases set out by the Lord Chief Justice’s Practice Direction [2009] 1 WLR 327, which included:-
a) any decision of the First-tier Tribunal on an appeal made in the exercise of the rights conferred by the Criminal Injuries Compensation Scheme in compliance with section 5 (1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews); and
(b) any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11 (5) of the 2007 Act.
The second route - sections 20 and 21 of the 2007 Act - Scotland. The Court of Session could exercise its supervisory jurisdiction in both of the present cases before the Tribunal. It followed that, if applications had been, or were to be, made to the Court of Session, rather than to the Upper Tribunal, sections 20 and 21 of the 2007 Act would apply to them.
In the Tribunal’s view, it was correct that applying the case of Tehrani, the Court of Session could exercise its supervisory jurisdiction in both of the cases before the Tribunal and that if applications had been made to it, rather than the Upper Tribunal, sections 20 and 21 of the 2007 Act would apply.
As the condition or trigger to the cases’ transfer to the Upper Tribunal, was the making of an application to the Court of Session challenging a decision of the First Tier Tribunal, that statutory review jurisdiction of the Upper Tribunal flowed from the existence of the common law supervisory jurisdiction that founded such an application, and so from the law of Scotland in that sense, rather than in the sense of the devolved law providing for the payment of compensation for criminal injuries that governed the decisions made by the CICA. The relevance of that applicable law would be whether its application by CICA, as the decision making public body, involved an error of law and, that was its relevance whenever and however the Upper Tribunal, the High Court or the Court of Session was exercising its review or supervisory jurisdiction.
The legislative scheme of sections 20 and 21 of the 2007 Act mirrored that of sections 15 to 18, insofar as:
(a) defined applications had to be transferred to the Upper Tribunal
(b) other applications might be transferred to the Upper Tribunal,
(c) on transfer, the Upper Tribunal had the function of deciding them, and so this was also one of its functions referred to in s. 3(2) of the 2007 Act,
(d) in so deciding them, the Upper Tribunal had to apply the principles that would be applied by the Court of Session (Section 20(1) and 21(1) to (4)).
However there were differences. Under sections 20 and 21 of the 2007 Act, the Upper Tribunal was not given defined legal powers for cases that correlated to the powers of the Court of Session when exercising its supervisory jurisdiction. Instead it was given the same powers of review as the Court of Session in respect of the application transferred to it by the Court of Session (section 21(2)) and this part of the legislative scheme did not include a provision that enabled proceedings for the review of decisions to be started in the Upper Tribunal.
The discretionary provisions relating to a transfer to the Upper Tribunal under sections 20 and 21 only applied if the subject matter of the application was not a devolved matter (Condition 3; s. 20(4) of the 2007 Act). However Condition 3 was not one of the conditions mentioned in the mandatory provisions for a transfer to the Upper Tribunal, whereas Condition 2 was (section 20(3) of the 2007 Act).
In addition, pursuant to Condition 2, by Scottish SI 2008 No 357 Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 it had been provided that:-
“2. Paragraph 3 specifies a class of application for the purposes of section 20(3) of the Tribunals, Courts and Enforcement Act 2007.
3. The class of application is an application which challenges a procedural decision or a procedural ruling of the First-tier Tribunal, established under section 3 (1) of the Tribunals, Courts and Enforcement Act 2007.”
Condition 3 provided a link to the law governing the decision which could be challenged under the supervisory jurisdiction of the Court of Session, but did not undermine the point that jurisdiction of the Upper Tribunal under sections 20 and 21 of the 2007 Act was founded on there being an application under that supervisory jurisdiction to the Court of Session.
The question of whether either or both of the cases before the Tribunal fell within the classes of applications that had to be transferred by either or both of the High Court, or the Court of Session, because they challenged, in the case of the High Court, “a decision of the First Tier Tribunal made under Tribunal Procedure Rules” and, in the case of the Court of Session, they challenged “a procedural decision or ruling” was not raised before Tribunal.
Many decisions of the First Tier Tribunal were appealable (LS v LB Lambeth [2011] AACR 27) and so (i) they were expressly excluded from the classes of case specified by the practice direction made by the Lord Chief Justice, and (ii) an appeal would be an alternative remedy. But for the existence of s. 11(5)(a) of the 2007 Act the alternative remedy of an appeal would be available against (i) the decision of the First Tier Tribunal not to extend time in this case, and (ii) the strike out decision of the First Tier in the other case.
However, the Tribunal felt that section 11(5)(a) provided that both of the decisions in these cases were excluded decisions of the First Tier Tribunal because it covered decisions of any type made on a CICA appeal. This view was supported by the approach taken in paragraph 2(b) of the practice direction issued by the Lord Chief Justice to excluded decisions within s. 11(5)(b), (c) or (f).
It followed that the decision of the First Tier Tribunal in the first case, and its strike out decision in the second case, could not be appealed to the Upper Tribunal but could be challenged by judicial review brought in the Upper Tribunal. In the second case, no application to the Court of Session to exercise its supervisory jurisdiction was likely.
It had been the contention of the CICA that the section 15(1) condition referred to the law governing the original decision made by the relevant public body, rather than to the law governing any challenge to it by way of an appeal or review, and so in this case to the law governing the application of the CICA. The Upper Tribunal did not accept this contention. The section 15(1) condition should be construed and applied as referring to cases or applications which sought the review of decisions under the law of England and Wales, as was asserted by the Applicant.
As a matter of the ordinary meaning of the statutory language such applications were within the meaning of the phrase “cases arising under the law of England and Wales” and there was no circularity in so construing it. By way of example, if the Upper Tribunal, as a court of record created by statute, was being given a jurisdiction in contract or tort, an opening condition of the empowering section that it related to cases arising under the law of contract or tort, would be a natural use of language. Also, as a matter of language, the Tribunal’s construction of the phrase fitted in with its use in section 15(5) of the 2007 Act.
The 2007 Act did not provide for mutually exclusive review jurisdictions in England and Wales on the one hand and Scotland on the other, and the neatness and attractiveness, of such a clear divide, based on CICA’s contention disappeared, leaving forum non conveniens points to determine which of the High Court (and the Upper Tribunal) and the Court of Session should determine a review of a decision, when they both had jurisdiction to do so.
The CICA’s argument did not mirror the approach of (i) section 31A of the Senior Courts Act 1981, as introduced by section 19 of the 2007 Act, and (ii) sections 20 and 21 of the 2007 Act which were clearly triggered by applications made under the law of the respective jurisdictions that governed the exercise of their review or supervisory jurisdiction. As to those jurisdictions, the place of the alleged injury would not be determinative and so they could extend to cases in which (i) the injury took place in the geographical area of the other jurisdiction, or (ii) the applicable law for determining whether compensation should be paid for the injury was the law of the other jurisdiction.
In the wider application of s. 15(1) of the 2007 Act, to cases where the underlying decision was based on the application of (i) UK wide schemes or laws, (ii) devolved matters where the applicable law was, for the time being the same throughout the UK (for example the Criminal Injuries Compensation Scheme, and (iii) the procedure of the First Tier Tribunal, a simple divide between the law applicable to the underlying decision of England and Wales on the one hand, and Scotland on the other, did not exist or was not obvious. The Tribunal gave a number of examples. Looked at as a whole, the scheme of the relevant provisions of the 2007 Act (i) was to create the Upper Tribunal as a court of record in all parts of the United Kingdom, to give it a judicial review jurisdiction, and to allocate the review or supervisory jurisdictions in respectively England and Wales and Scotland as between the courts and tribunals of those jurisdictions (in the geographical sense), and (ii) indicated that the driving feature or starting points for the different allocations and regimes was the existence of a case in which the Applicant sought relief pursuant to the powers of review and supervision in the two jurisdictions.
The Applicant in the first case wanted to make an application to the Court of Session under its supervisory jurisdiction to set aside the decision of the First Tier Tribunal not to extend time for bringing her appeal and so admit it for hearing. It was understandably pointed out that before she did so, she wished to investigate what funding and representation was available to her. She wanted to take this course because her case was that the natural or convenient forum for this challenge was Scotland, and the approach taken by the Court of Session to the time in which such proceedings for review had to be brought was different to that taken by the High Court (and thus the Upper Tribunal).
The Tribunal had been invited to bring an end to the proceedings before it on forum non conveniens grounds even though as yet no proceedings had been issued in the Court of Session. The Tribunal declined to do so because it was of the view that the better course was to adjourn the present proceedings to allow the Applicant a reasonable time to investigate funding and representation in respect of, and to start, her intended proceedings in the Court of Session. If such proceedings were started in a reasonable time, these proceedings would then be brought to an end by a stay, withdrawal or dismissal (by consent), but if they were not then, subject to further directions, they would be set down for hearing before an Upper Tribunal judge for disposal or further directions.
It had occurred to the Upper Tribunal that it might be arguable that the Scottish SI 2008 No 357 Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008 cited above, had the result that the Court of Session was obliged to transfer to the Upper Tribunal the Applicant’s intended application to it because (i) conditions 1, 2 and 4 (as defined in section 20 of the 2007 Act) would be satisfied, and (ii) condition 3 did not apply to mandatory transfers. This point was not raised in argument before the Upper Tribunal, and it was a point for the Court of Session. If there was such a mandatory transfer, the problem that would then arise is that the Upper Tribunal would have a judicial review jurisdiction by two routes which would lead to it exercising those jurisdictions (and functions) on different principles. It would therefore have to choose which set of principles to apply. In this case, the forum non conveniens reasons that founded the conclusion that the Applicant should be able to pursue her challenge in the Court of Session also founded the conclusion that, if the Upper Tribunal had the function (jurisdiction) of deciding the Applicant’s challenge (i) in the present proceedings (and thus by the sections 15 to 18 route), and (ii) on a transfer from the Court of Session (the sections 20 and 21 route), it should do so by the latter route and so by applying the principles that the Court of Session would apply.
The Upper Tribunal’s conclusion on the jurisdictional issues meant that the guidance notes on the forms sent out in this and other CICA cases by the First Tier Tribunal concerning the availability of judicial review were incorrect and needed to be altered.