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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Brophy v Information Commissioner [2025] UKFTT 491 (GRC) (02 May 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/491.html Cite as: [2025] UKFTT 491 (GRC)

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First-tier Tribunal
(General Regulatory Chamber)
Information Rights

		Decided without a hearing
		Decision Given On: 02 May 2025

DECISION on rule 4(3) application

I refuse to allow the Notice of Appeal to be admitted out of time.

REASONS

Introduction

1. On 10 April 2025, the Registrar refused to extend time for the Appellant's Notice of Appeal to proceed. The Registrar also did not direct the appeal to be lead case consolidated with other cases brought by the Appellant against the Information Commissioner ("ICO"). By application on form GRC5 dated 23 April 2025, the Applicant has asked for the Registrar's Decision to be considered afresh by a Judge pursuant to Rule 4(3) of the 2009 Rules. I have considered the matter afresh.

Background

2. By application to the Tribunal on 3 February 2025, the Appellant sought to appeal against a Decision Notice (IC-288427-D8T5) of the ICO dated 5 September 2024. The Appellant requested this be the lead case consolidated with three other processes; IC-327971-Q5M9; IC-331895-H3GO and an ICO service complaint of 18 November 2024.
3. The Decision Notice records that the Appellant contacted the ICO on 14 February 2024 to complain about the way his request for information had been handled by the London Borough of Hillingdon ("the Council"). The request related to a definition of anti-social behaviour used by the Council. The Council deemed the request vexatious under section 14(1) of the Freedom of Information Act 2000 ("FOIA"). It refused to provide a further response to the complaint, relying on section 17(6) as the basis for doing so.
4. The ICO decided that the request was vexatious under section 14(1), and that the Council was entitled to rely on section 17(6) of FOIA to decline to issue a further refusal notice. As a result, the ICO did not require the Council to take any steps in relation to the complaint.
5. In the summary of reasons, the ICO stated he was satisfied that the request can be traced back to the Appellant's underlying dispute with the Council, i.e. a Community Protection Warning Notice issued to the Appellant by the Council in 2019.

Preliminary Matters

6. It is appropriate to make clear at the outset that there are no valid applications before the Tribunal in respect of the other ICO case references listed by the Appellant and the letter of 18 November 2024. As such, there is no possibility of this case being designated as 'lead case' or consolidated with any others.
7. The Appellant requests that the appeal and this decision be recorded as made against the Council and Hillingdon Community Multi-Agency Risk Assessment Conference, as well as the ICO. However, the appeal is made against the decision of the ICO to refuse his request. No other party is joined as a co-respondent.
8. By email sent on 21 April 2025, the Appellant further requested the Tribunal to exercise its case management powers to 'adjourn' a hearing to allow the Council opportunity to deliver a compromise proposal. Unless the appeal is admitted, it will not proceed and so the application is premature.
9. There is no need for details of the case to be repeated in requesting a reconsideration of the Registrar's decision. I have taken into account all the submissions including those within and accompanying the GRC5 form.

Consideration

10. Under Rule 22 of the 2009 Rules an appellant must start proceedings before the Tribunal by a notice of appeal that is received within 28 days of the notice or decision being sent to the appellant. The notice of appeal was therefore late. The appeal included an application for an extension of time.
11. I have discretion to extend the time limit to allow an appeal to proceed under Rule 5(3)(a). In exercising my discretion, I am bound to consider the relevant legal principles in Denton v T H White Limited [2014] EWCA Civ 906, as endorsed in BPP v HMRC [2017] UKSC 55.
12. It is appropriate to apply the three-stage approach set out in Denton, as per Martland v HMRC [2018] UKUT 178, where the Upper Tribunal guided at [44] that the First-tier Tribunal should:

(1) establish the length of the delay and whether it is serious and/or significant;

(2) establish the reason or reasons why the delay occurred; and

(3) evaluate all the circumstances of the case, using a balancing exercise to assess the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission, and in doing so take into account "the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected".

13. Applying the recommended approach, I find that the delay of 123 days was a significant period of time. The purpose of the time limit is to ensure that proceedings are conducted in an orderly way and that the principle of finality in litigation may be observed. Even if the ICO took an additional 204 calendar days to complete its investigation and decision-making process, that does not explain the delay in the Appellant's application to the Tribunal.
14. I note that the Appellant has "not been through this process before" and is unfamiliar with Tribunal proceedings. The Appellant says that he has made extra efforts to seek a resolution without the need to take up additional public sector resource, which accounts for his late appeal. He has been waiting for the requested information since 4 March 2023, and says that every delay has been the responsibility of the Council or the ICO. Furthermore, what the Appellant wants is very simple and easy to deliver. That may be so, but the Decision Notice was clearly endorsed with details of the right of appeal to the Tribunal within 28 (calendar) days of the Decision Notice being sent.
15. The ICO's service complaint letter dated 19 December 2024 seeks to respond to the Appellant's complaints over the ICO's handling of his cases, including the Decision Notice. The Appellant explains that it was not until he was able to examine the letter of 19 December 2024 that he realised the ICO had disregarded his case submission of 12 August 2024 and would refuse to share evidence regarding how the ICO reached the decision of 5 September 2024. The Appellant considers it beyond reasonable doubt that the ICO failed to consider his case submission in reaching the decision, despite the information being available.
16. The ICO's letter of 19 December 2024 states:

"I note that you have submitted your service complaint following your dissatisfaction in not receiving copies of communications between Hillingdon and the ICO as part of the investigation of IC-288427-D8T5.

You claim that the fact the ICO did not disclose communication between Hillingdon and the ICO prevented you from appealing DN (IC-288427-D8T5) to the Information Tribunal for two reasons. Firstly, because you did not obtain the necessary evidence, and secondly because the time for appeal to the Tribunal had passed as a result of the time taken for us to respond."

17. The fact that the Appellant made a service complaint to the ICO on 18 November 2024 on the ground that the time to appeal in this case had expired due to the ICO's delay, firmly shows that the Appellant was aware of the timescale to appeal before 19 December 2024. Yet, the Appellant still waited until 3 February 2025 before submitting his appeal.
18. In the 19 December 2024 letter the ICO "consider that the decision notice is very clear as to the evidence we took into account in reaching our decision, our view of it, and why we reached the decision we did." The Appellant disagrees there was sufficient clarity on how the decision was reached, but he plainly did realise he could appeal the decision in November 2024, at the very latest.
19. The Appellant would be prejudiced if his appeal cannot proceed, but so would the ICO if it does proceed in having to deal with the proceedings.
20. Upon weighing up all the circumstances of the case and balancing the merit of the arguments for the delay against the circumstances as a whole, I agree with the Registrar that the time limit to submit the appeal should not be extended under Rule 5(3)(a) of the 2009 Rules. That being so, the Tribunal must not admit the Notice of Appeal by virtue of Rule 22(4)(b).
21. In reaching this view I have considered the overriding objective and taken account of the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with procedural rules.

Signed: Judge Saward

Date: 1 May 2025