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You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Sim v Information Commissioner [2008] UKIT EA_2008_0064 (22 September 2008) URL: http://www.bailii.org/uk/cases/UKIT/2008/EA_2008_0064.html Cite as: [2008] UKIT EA_2008_0064, [2008] UKIT EA_2008_64 |
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Information Tribunal Appeal
Number: EA/2008/0064 Information Commissioner’s Ref:
FS50177327 |
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Determination on papers 22
September 2008 |
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BEFORE
CHAIRMAN Murray
Shanks |
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Between
PROFESSOR JOE
SIM
Appellant
And |
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INFORMATION
COMMISSIONER
Respondent |
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Decision
The Tribunal rules that the
notice of appeal in this case was served out of time under rule 5(1) of
the Information Tribunal (Enforcement Appeals) Rules 2005 and rejects the
Appellant’s application under rule 5(2) to extend time and accordingly
strikes out the appeal. |
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1 |
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Appeal Number:
EA/2008/0064 |
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Reasons for
Decision |
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1. Professor Sim seeks to
appeal against a decision notice issued by the Information Commissioner
under section 50 of the Freedom of Information Act 2000 which is dated 2
July 2008. His notice of appeal states that it is made under section 60 of
the Act but it is clear from the decision notice that there has been no
certificate issued under section 23(2) or 24(3) so that his appeal would
lie, if at all, under section 57.
2. The rules of procedure
governing such appeals are the Information Tribunal (Enforcement Appeals)
Rules 2005 which include the following provision:
5(1) Subject to paragraph
(2) below, a notice of appeal must be served on the Tribunal within 28
days of the date on which the notice relation to the disposal of the
disputed decision was served on or given to the
appellant.
(2) The Tribunal may accept
a notice of appeal served after the expiry of the period permitted by
paragraph (1) above if it is of the opinion that, by reason of special
circumstances, it is just and right to do so.
3. Professor Sim accepts
in his notice of appeal that his appeal is out of time and puts forward
grounds for an extension under rule 5(2). Notwithstanding this I was not
entirely clear that the appeal was out of time and I therefore invited the
parties to clarify certain matters in relation to service of the decision
notice and the notice of appeal and to make any further written
submissions they wished in relation to rule 5(2) to enable the Tribunal to
reach a decision on extending time if necessary. The parties helpfully
responded by email on 19 September 2008.
4. On further consideration I have no doubt
that the notice of appeal was served out of time. The Commissioner’s
decision notice was sent by special delivery post on 2 July 2008 to
Professor Sim’s work address and delivered there in the ordinary course on
3 July 2008: service would therefore be deemed to have been effected on
that day unless the contrary was proved (see section 7 of Interpretation
Act 1978) and it is clear from his own statements that it did in fact come
to his attention |
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2 |
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Appeal Number:
EA/2008/0064 |
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on that day. The last day for
service of the notice of appeal was therefore 1 August 2008 (28 days
later, excluding the specified day: see Zoan v Rouamba [2000] 1 WLR
1509 paras 23 and 24). In fact the notice of appeal was posted by
Professor Sim from Denmark on Saturday 2 August 2008 and was not received
by the Tribunal until Tuesday 5 August 2008.
5. I therefore need to
consider the application under rule 5(2). The factual position is that
Professor Sim is a full time lecturer at Liverpool John Moores University.
He states, and I accept, that he learnt of a family bereavement on 2 July
and consequently, following a brief visit to his office on 3 July, he had
to go to Denmark where he was until 12 July. I accept that this would have
been a difficult and busy time for him. On his return he had to catch up
with various issues at work and attend a conference in London for three
days. He returned to Denmark on 30 July 2008 for his annual leave. He made
contact with the Tribunal in the course of his journey, obtained the
notice of appeal form, completed it in Denmark on 1 August and sent it to
the Tribunal, as I have said, on 2 August.
6. Do these facts amount
to “special circumstances” which make it just and right for me extend
time? I am afraid I do not so regard them. I accept that a family
bereavement may amount to special circumstances and that Professor Sim
could not have been expected to turn his attention to the notice of appeal
until 13 July. However, as at that date he should have been aware that if
he wished to appeal he would have to act before the end of July. Like any
busy professional he of course had many other things to do but that fact
cannot amount to “special circumstances” and I do not see any reason why
he should not have served a notice of appeal before he left for his annual
leave.
7. I therefore reject the
application under rule 5(2). The Commissioner also invites me to take
account of the fact that the appeal is hopeless on its face. Having looked
at Professor Sim’s grounds of appeal it seems to me that the Commissioner
must be right about this because the exemption relied on is section 23
which is an absolute exemption and the only points raised in the grounds
of appeal are that it would be in the public interest for the information
to be disclosed, which is irrelevant in the context of an absolute
exemption. For this reason also I am not of the opinion that any special
circumstances which may have been established could have made
it |
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3 |
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Appeal Number:
EA/2008/0064 |
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just and right to extend time:
whatever the reasons for the late appeal there is no point in extending
time if it is hopeless.
8. In the light of these
conclusions it must follow that the appeal should be struck
out.
Signed
Deputy Chairman
Date 23 September
2008 |
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