Appeal number: EAI2018/0018

FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS

Applicant
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- and-

THE INFORMATION COMMISSIONER

.
Respondent

TRIBUNAL: JUDGE ALISON MCKENNA

Sitting in Chambers on 26 February 2018

RULING
on Rule 4 (3) Application

I. The Registrar's Decision of 8 February 2018 stands. I refuse to grant an extension of time in this case.

REASONS
2. The Applicant has by application dated 21 February 2018 asked fora Judge to review the Registrar's
Decision of 8 February 2018, by which she refused his application for an extension of time in which
to file his Notice of Appeal. This I now do.
3. The Applicant's Notice of Appeal was filed on 30 January 2018. He seeks to appeal the Information
Commissioner's Decision Notice dated 22 June 2017, in which she found three requests he had made
to Humberside Police to have been vexatious within the meaning of s. 14 FOIA. The Grounds of
Appeal argue that the Decision Notice contains multiple errors of law.
4. My role as the reviewing Judge under rule 4(3) is to consider the matter "afresh". It follows that this
is not an "appeal" against the Registrar's Decision and it is not my role to determine whether the
Registrar made an error of law in reaching her Decision, but rather to consider the matter afresh.
5. I have considered the Upper Tribunal's decisions in Data Select Limited v HMRC [2012] UKUT 187
(TCC) and Leeds City Council v HMRC [2014] UKUT 0350 (TCC) in respect of the criteria to be
applied by the Tdbunal when deciding whether to allow an appeal to proceed out of time. I have also
considered the Upper Tribunal's decision in BPP University College of Professional Studies v HMRC
[2014] UKUT 496 (TCC) in which the Data Select principles were applied. (BPP was considered
further in the Court of Appeal and the Supreme Court, but on a different point).

6. In Leeds City Council, Judge Bishopp (CP) commented at [19] that:

In my judgment therefore the proper course in this tribunal, until changes to the rules are made,
is to follow the practice which has applied hitherto, as it was described by Morgan J in Data
Select.

7. This is a reference to the following passage in Morgan J's decision in Data Select Limited v HMRC
[2012] UKUT 187 (TCC):

[34] ... Applications for extensions of time limits of various kinds are commonplace and the
approach to be adopted is well established. As a general rule, when a court or tribunal is asked
to extend a relevant time limit, the court or tribunal asks itself the following q~estions: (1) what
is the purpose of the time limit? (2) how long was the delay? (3) is there a good explanationfor
the delay? (4) what will be the consequences for the parties of an extension of time? and (5)
what will be the consequences for the parties of a refusal to extelul time. The court or tribunal
then makes its decision in the light of the answers to those questions.

8. Applying those principles, I have had regard to the following factors. Firstly, I find that the purpose
of the time limit in relation to an application to the Tribunal is to preserve the important principle of
finality. The Information Commissioner was entitled, in view of the absence of an appeal within the
time limits, to regard the matter as closed.

9. Secondly, the period of delay in making this application was 6 months and 10 days. I find this to be a
very significant period of delay.

10. Thirdly, the Applicant's explanation for that delay is as follows. He states that he:
... "was unable to complete an application within the time limits in respect of the 22 June 2017
decision. The complainant was aware that an application for an extension of time could be
made. However, he deemed that the amount of time and effort which would be required was
urifustified weighed against the uncertainty of whether the extension would be granted

Circumstances since have changed and the complainant considers that the pubiic interest value
of the appeal justifies the time and effort that has been put into applying if there is a possibility
of having the matter adjudicated on by the Tribunal".
11. I find that Applicant has not here advanced a good explanation for the delay. He does not say why he
was unable to make an application within 28 days or what circumstances have changed. I find that he
basically describes a change of heart about making an application now which he had previously
decided not to make.

12. Fourthly, the consequences to the parties of granting an extension of time would be the ability for the
Applicant to bring his appeal, but that must be weighed against the not inconsiderable resource
(financial and time) implications of re-opening a matter which was reasonably regarded as concluded.

13. Fifthly, the implications for the parties of not extending the time limit are that the matter remains
closed so far as the Information Commissioner is concerned but that the Applicant would have lost his
opportunity to appeal. I have reviewed his Grounds of Appeal, which I do not consider to be strong,
relying in considerable part as they do on a reiteration of the Applicant's underlying dispute with the
police and CPS.

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14. Having weighed all the relevant considerations into the balance, I have considered the matter afresh
and now conclude that it is fair and just to refuse to grant an extension of time. The factors relied
upon for extending time are in my view insufficiently weighty to justify re-opening the dispute
considerably after the time for appealing has passed.

15. I agree with the Registrar's Decision of8 February 2018, which must stand.

(Signed) Dated: 26 February 2018

Alison McKenna
Principal Judge

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