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Upper Tribunal rejects request for copies of notes made by First-tier Tribunal judge during information rights hearing

The Upper Tribunal (Administrative Appeals Chamber) has refused an applicant permission to appeal a ruling that he was not entitled to receive a copy of the notes made by a First-tier Tribunal judge in an earlier hearing.

On 2 October 2019 an administrative officer of the FTT had told Dr Reuben Kirkham via email that the Chamber President’s (Judge McKenna's) notes were the judge’s private property, Dr Kirkham was not entitled to ‘order’ them and they were absolutely confidential.

She said that the Chamber President referred Dr Kirkham to the decision of the High Court in R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin) in support of her position.

The FTT official said the Chamber President would not issue any ruling on Dr Kirkham’s application and invited him to address all further applications on the matter to the Upper Tribunal.

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Dr Kirkham applied to the Upper Tribunal for permission to appeal in respect of the 2 October 2019 email and Judge Markus QC decided the application on the papers.

In Kirkham v Information Commissioner (Record of Proceedings) (Tribunal procedure and practice - statements of reasons) [2020] UKUT 336 (AAC) Upper Tribunal Judge Thomas Church said: "She [Judge Markus QC] was puzzled (as am I) by the Chamber President’s position that she would not issue a ruling on Dr Kirkham’s application, because the upshot of the email sent by the administrative officer on her behalf, was that she would not provide the notes. The email from the administrative officer amounted, in substance, to the Chamber President’s refusal of Dr Kirkham’s application.”

Judge Markus QC treated it as such and waived the requirement in the UT Rules that Dr Kirkham must first apply to the FTT for permission to appeal before pursuing the application to the UT on the basis that such an application would be pointless given the Chamber President's positon that she had made no ruling which could be appealed.

Judge Markus QC admitted the application but she refused permission to appeal because she decided that Dr Kirkham had no arguable right to the notes of the 5 March 2019 hearing. She said that the notes were not the record of proceedings and that, as set out in McIntyre, they were absolutely confidential.

Dr Kirkham exercised his right to renew his application to the UT for an oral hearing.

Discussing the appeal, Judge Church concluded that while the High Court ruling in the McIntyre case did not bind the tribunal - as it was a separate court - “that doesn’t mean that the Chamber President was wrong to follow it, or that I shouldn’t follow it if I consider it to be correctly decided”.

He said it was not arguable that Judge McKenna erred in law in relying on McIntyre as authority for the proposition that her notes of the hearing were confidential.

Dr Kirkham wanted the notes “to understand what the Chamber President made of the proceedings, the extent to which she was able to follow the proceedings, and what she might have betrayed of her thoughts about him in her notes when she thought that they would remain secret”, Judge Church said.

He said that denying Dr Kirkham access to Judge McKenna’s notes was not - as he had claimed - “analogous to excluding Dr Kirkham from the hearing”.

Dr Kirkham also alleged that the Chamber President was biased against him and expected the notes would substantiate this.

Judge Church said: “He argued that I needed to see the Chamber President’s notes myself before determining this application because unless I knew what was in them I couldn’t decide whether he should see them.

“I don’t accept that…Dr Kirkham has no arguable right to be provided with the Chamber President’s notes because they are absolutely confidential in accordance with the principles laid out in McIntyre, irrespective of what they say and irrespective of the use to which Dr Kirkham intends to put them.”

Mark Smulian

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