Knowing what to overlook

The Upper Tribunal has allowed an appeal by an appellant whose pre-hearing language and allegations had led the First-tier Tribunal to strike out his case.

In a recently handed down judgment Upper Tribunal Judge Jacobs says

Most appellants correspond with the tribunal only when necessary, make moderate criticisms and allegations, and express themselves politely. There is, however, a small body of appellants who are persistent in their correspondence which contains wild allegations that are expressed in an intemperate or aggressive tone…

What gave rise to the proceedings in question was an appeal, by a certain Mr Dransfield, of a decision by the First-tier Tribunal (Information Rights) (FTT) to strike out proceedings remitted to it by a decision of Judge Wikely in the Upper Tribunal (UT). That remittal decision was case reference GIA/1053/2011 – unhelpfully not currently available on the UT website – and is not to be confused with another (leading) decision by Wikely J in relation to an unsuccessful appeal by Mr Dransfield (reference GIA/3037/2011).

The FTT struck out the remitted case using powers conferred by rule 8(3)(b) of Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976) (“the Rules”), which permits a strike-out if

the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly

It appears that Mr Dransfield was warned by the FTT judge by a direction on 11 January 2012 (I think this should say “2013”, but I quote from paragraph 4 of the UT’s judgment) about the unfortunate, although perhaps unintentional “hectoring tone” of his emails, and rule 8(3)(b) was specifically cited to Mr Dransfield, with the observation that

Co-operation, in this context, includes using moderate language and an appropriate tone 

The warning was reinforced orally, and repeated on 29 April 2013.

Despite this, Mr Dransfield then sent an email on 12 May 2013, which the UT declines to quote in full but which is described thus

Mr Dransfield accused the Commissioner and Council of ‘conniving and colluding to pervert the Course of Justice’ and of producing ‘a pack of lies and deception’. He later referred twice to a ‘wider conspiracy to pervert the course of justice’ and said that there was sufficient evidence to justify arresting the Commissioner’s legal representative and Judge Wikeley for conspiracy to pervert the course of justice

Accordingly, the proceedings were struck out, the same day.

Interestingly (and no doubt to the frustration of some of those involved), Mr Dransfield’s appeal of this strike out has succeeded. Jacobs J  follows the words I quote at the start of this piece with

It is usually possible to deal with that small minority of appellants without resorting to the power to strike out proceedings. It is possible to ban a party from using emails and direct that any that are sent will be ignored. Another way is to limit a party to communicating in writing and only when requested, with other letters being filed but ignored. At a hearing, it is possible to limit the time allowed to a party or, if necessary, to require a party to leave the hearing room. In my experience, measures such as this are usually effective

In short, Jacobs J says that case management powers can be properly used to manage a potentially difficult litigant, and should not in this case have led to the “draconian step” of striking out Mr Dransfield’s appeal. The type of allegation made by Mr Dransfield is “regularly made in appeals before this Chamber and just as regularly ignored by the judges”.  The power to strike out and the duty to cooperate are in a “reciprocal relationship” with the overriding objective “to enable the Tribunal to deal with cases fairly and justly” at Rule 2, and specifically those parts of Rule 2 which require flexibility in the proceedings (2(2)(b)) and that the parties are able to participate fully in the proceedings (2(2)(c)).

Jacobs J ends his judgment by noting that the FTT could have employed more flexible responses “without depriving Mr Dransfield of his right of appeal” and observes, by quoting William James

‘the art of being wise is the art of knowing what to overlook.’

Very true, but I think I would just add a general point that – sometimes – some things can be too big to overlook. There will still be some cases where the failure to comply with the duty to cooperate properly merits the striking out of proceedings.

73 Comments

Filed under Freedom of Information, Information Tribunal, Upper Tribunal, vexatiousness

73 responses to “Knowing what to overlook

  1. I can see that some applicants may behave in such an unreasonable and unacceptable manner that their cases should be struck out as a result. However, the line should be drawn to restrict the smallest number of cases. I think it would be regrettable if any case brought by Mr Dransfield or other similar applicants were to be dismissed on anything other than the facts of the case, so I’m glad this was the outcome. As the Upper Tribunal has shown, the merits of the case will usually lead to the right result.

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  3. Alan M Dransfield

    The ONLY decision which Judge Jacobs could make was to STRIKE OUT the Contempt of Court Charges from the FTT/ICO/DCC.
    […potentially defamatory comments removed…]
    It beggars belief that nearly 100 VEXATIOUS decsions have been handed down by ROGUE PA.s based on the Dransfield Case GIA/3037/2013.
    This is STILL ACTIVE under the Court of Appeal C3/2013/1855.
    Tooltime Timmy Turner supporting Dransfield. Whatever next?

  4. I would like to make clear that I do not support Mr Dransfield; I support the Upper Tier Tribunal. The Upper Tier Tribunal was right to say that cases should be dismissed because the appeals are incorrect, not because the appellant is a pain in the neck. The Upper Tier Tribunal was also correct to say that Mr Dransfield’s FOI requests are vexatious.

    • Alan M Dransfield

      It is irrelevant what the the Upper Tribunal said about me being vexatious or a pain in the neck.What matters at this juncture, is SOLEY down to the Court of Appeal ref C3/2013/1855.
      It gives me great pleasure you are watching my case so closely TTT.
      Don’t forget I still need your Legal Credential to Teach Law?!

  5. Wirral In It Together

    May I offer some constructive criticism? That the title of this blog is amended to…

    … “Information Rights, Wrongs and Occasional Buffoonery”?

  6. Alan M Dransfield

    No doubt the “Wirral In It Together “is refering to the Buffoonery by Tim Turner and the DCC/ICO and the FTT???
    Can’t think he would be refering to me as a Buffoon?!

  7. Alan M Dransfield

    I think the GIA/3037/2013 Dransfield v ICO case, which is currently under consideration of the Court of Appeal is paramount for the survival of the FOIA 2000 and in particular, the whimsical vexatious decisions which are handed out like confetti by rogue PA’s ,(unnamed for now).
    Also the recent UT overturn of the Contempt of Court Charges levelled against me by the FTT have renewed my faith (a little bit) in the Bristish Justice System.
    If the transpaency,accountability and security (TAS) systems are not seen to be working at the ICO/FTT/Devon County Council, then ,in all probability,it AINT working.
    TAS MUST be seen to be working in ALL PA’s.

  8. I know Mr Dransfield to be a decent individual with a very strong moral compass, something often lacking in public life. Concerns about safety should always be listened to and, if appropriate, acted upon

  9. Alan M Dransfield

    I note with a wry smile that the Home Office and the MoJ are also using my UT decisionGIA/3037/11.
    Tut tut, surely they should know about Stare Decisis,commonlaw,due process and common sense.
    I see also that I am being dicussed in tthe House of Lords,maybe a knighthood coming my way?

    • Hi Alan

      As I’ve said before, the fact that you are applying for permission to appeal the decision of the Upper Tribunal does not mean that the latter’s judgment does not have precedent value. Don’t you think it would be a bit odd if all these authorities, courts, departments and regulators were wrong on this, and you were right?

      • Alan M Dransfield

        Bainesy
        We agree to disagree on the virtues of Stare Decisis,dueprocess, common law and common sense.

  10. Wirral In It Together

    With reference to the post from Sheila Oliver above, and despite the name at the head of this blog, this is not a question of “Right and Wrong”.

    It’s about integrity. A system, populated and defended by countless salaried individuals, but set up to serve ‘justice’ in the UK is far more likely to be lacking in integrity, and even corrupt at its core… than ONE individual.

    Wouldn’t you agree? 🙂

  11. Wirral In It Together

    Hahaha. I only occasionally tune in, but I must remember to bookmark and follow this blog. It can be so genuinely entertaining at times.

  12. Alan M Dransfield

    Bainesy
    We agree to disagree on the virtues and misuses of Stare Decisis ,due process,common law and common sense. And in response to your comments ref me being wrong against SO MANY “experts”.
    I wasnt wrong about the trumped up charges of Contempt of Court,was I?

    • But it wasn’t described as a contempt of court was it? It was a strike-out by the First-tier Tribunal using case management powers.

      You successfully got this overturned by the Upper Tribunal, and that Upper Tribunal decision is binding unless or until it is overturned on further appeal. By your argument you wouldn’t be able to cite the decision as being binding if, for instance, the ICO had appealed it.

  13. Groups are more likely to be corrupt than individuals; I can think of so many examples. George Monbiot expressed this wonderfully as a small movement by thousands of self-interested individuals tantamount to say , the Vietnam War; as did Kershaw in his biography of Hitler with the phrase from a middle ranjing German civil servant of 1933. The civil servant explained to a gathering of other civil servants that the best line was always “Working towards the Fuhrer”. Adolf Hitler believed himself pure and ascetic; his Hegelian reasoning resulted in groups of self-interested individuals perpetrating the most heinous crimes “I vas only obeying orders!”

  14. Alan M Dransfield

    Justice Briggs the Court of Appeal Judge has allowed the Dransfield Appeal on the GIA/3038/2011 under C3/2013/1855..
    Judgement by the Court of Appeal not yet in the public domain.

  15. Alan M Dransfiel

    The Court of Appeal have given me a green light to challenge Judge Wikelys vexatious decision ref GIA/3037/2011 Dransfieldv ICO and Devon County Council. A one day hearing has been scheduled for myself and for Mrs Craven, one of the Triplet Test Cases heard by Judge Wikely in late 2012.
    Justice Briggs at the Court of Appeal on Fri 6th June has granted me and Mrs Craven permission to appeal on the single issue of the” proper interpretation of section 14(1) of the FOIA 2000.”
    Hearing date tbc

  16. Alan M Dransfield

    So am I but I am at a loss to understand why the FOIA has been allowed to operate for 14 years whilst totally devoid of any legal interpretation for VEXATIOUS and now PROTEAN . Only Parliament and the House of Lords can amend or renew the FOIA 2000. Hence , I feel the Court of Appeal are not authorised to make any amendments or changes to the FOIA statute?!?

    • Parliament (ie. the House of Commons *and* the House of Lords) passes Acts of Parliament. These are statutory laws. It then falls to the courts, or regulators like the ICO, to interpret those laws. If a “superior court of record” (the Upper Tribunal and the High Court, the Court of Appeal or the Supreme Court in order of precedence) gives a ruling on interpretation it becomes, under the “common law”, binding on everyone.

      So, the Court of Appeal cannot amend FOIA, but it can (as did the Upper Tribunal) give a binding ruling on how it should be interpreted. The Court of Appeal can overrule the Upper Tribunal, and, ultimately, the Supreme Court can overrule the Court of Appeal.

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  18. Alan M Dransfield

    We are about to find out if the Court of Appeal will over-rule the Wikeley VEXATIOUS decision handed down to Alan Dransfield in Jan 2013. My case is to be heard tomorrow or Wed (TBC).
    In the event the Court of Appeal uphold the Wikeley VEXATIOUS decision,Joe Public is gagged forever. Should Dransfield win his Vexatious appeal, he will be the SAVIOUR of the FOIA.

    • This is an important case Alan, and i think you have an uphill task in overturning what was a pretty sound judgment by Wikeley J. But the idea that the public are currently gagged, or that you will be the saviour of FOI are hyperbole.

      Nonetheless, I await the outcome with keen anticipation.

  19. Alan M Dransfield

    We are about to find out if the Court of Appeal will over-rule the Wikeley VEXATIOUS decision handed down to Alan Dransfield in Jan 2013. My case is to be heard tomorrow or Wed (TBC).

    In the event the Court of Appeal uphold the Wikeley VEXATIOUS decision,Joe Public is gagged forever. Should Dransfield win his Vexatious appeal, he will be the SAVIOUR of the FOIA.
    Unfortunately, the biggest winner in this case will be Tim Turner because win or lose for me, he will be peddling this crap at his training courses.

  20. alan m dransfield

    The Court of Appeal reserved Judgement on this case,hence, we must now wait 2-6 weeks before they release the decsion.

  21. alan m dransfield

    Prof Tim Turner has lost his tongue on this subject. Hes too busy with Lightning and Planes.

  22. Alan M Dransfield

    It would appear the Devon CC were not the legal owners of the Rugby Bridge until Jan last year hence the Lawful response to my FOIA request back in April 09 “SHOULD HAVE BEEN” we do not hold. Hence there is an ugly JURISDICTION issue at the CoA NOW.Whoops.
    They were ALL to busy,hell bent on screwing Dransfield,they forgot about the Jurisdiction Issue.
    Wrong Court MUST result in WRONG DECISION from the CoA Whoops.

    • What is the jurisdiction issue? If the request is vexatious, section 14 FOIA permits a public authority to refuse to comply with the duty to state whether or not it holds information.

      • Wirral In It Together

        Section 14 Vexatious sweeping ALL before it then? Hardly surprising that bullying, crooked, and therefore “plenty to hide” basket cases lunge for it.

        It had to happen. Cause and effect. Section 14 is now increasingly regarded by the engaged public at large (not the media yet) as a convenient and useful cop out.

        The irony being that when members of the public respond to official calls to become engaged with issues that should matter to them as citizens, they’re greeted by a phalanx of highly-paid lawyers, pulling up the drawbridge.

      • Alan M Dransfield

        What a load of old codswallap. No wonder you are big mates with Tim Turner and that’s what I expected of him but not you.
        Why would a PA wish to to enter into long and costly litigations if the sought after data was not owned by the PA.
        You really do surprise me with this Bull— answer

      • I’m just stating my view of the law. No need to be rude.

      • Alan M Dransfield

        I am not being rude but it is inconceivable that a PA would take on unnecessary remit for a FOIA request which was NOT under their remit.

      • I disagree, and I strongly suspect the courts will too.

      • The act of determining whether or not it holds information relating to an FOI request is one which can take time and effort (s12 FOIA recognises this). Why shouldn’t the authority be able to avail itself of s14 if such a request is vexatious?

      • Alan M Dransfield

        You are missing the point dear boy . The FIRST thing a PA MUST do with a FOIA request is to establish if the Subject title of the FOIA request come under their remit.
        If yes, they can then go on and establish if it is vexatious or a public interest test.
        In the event they establish the FOIA request is outside their remit, they MUST declare DO NOT HOLD.End of story and End of the road for that particular requests and NO Further appeals are allowed.

        The ICO and the DCC entered ito a VEXATIOUS MARRIAGE solely to pervert the course of justice

      • Again, we must agree to disagree.

      • Alan M Dransfield

        You are supposed to be the FOIA Guru so please tell me the correct procedure for a PA receiving a FOI request

      • If a request is vexatious the authority is not obliged to comply. It does not have to determine whether or not it holds the information.

        And I think calling someone who has always corresponded with you courteously a clown is rude.

      • Alan M Dransfield

        The FIRST thing a PA SHOULD do is to check their remit against the request.

      • Not if it’s vexatious. But we are not going to agree.

      • Alan M Dransfield

        so what your saying is the PA needs to establish if a request is VEXATIOUS BEFORE they decide if it comes under their remit. I don’t think so Tim??!!
        No wonder PA’s up and down the country are going bankrupt if that’s how they run their FOIA departments.
        Is that how you ran your FOIA department?

      • We’re going nowhere with this Alan. I’m signing off now.

      • Alan M Dransfield

        Rt Hon Theresa May MP
        Home Secretary
        2 Marsham Street
        London
        SW1P 4DF

        Dear Madam

        I write to you in you Official Capacity as Home Secretary because whilst the subject title might not be under your direct remit, events could well spill over into your control.

        Firstly, the Information Commissioner’s Office is in melt down and the Commissioner Mr Christopher Graham is wilfully abusing his powers of Law in the manner the ICO use section 14 (1) Vexatious Exemptions.

        The manner in which he has used section 14(1) since Jan 2013 will have direct consequences for Justice Goddard’s Child Sex Inquiry and in my view Christopher Graham is acting in concert with HM Judges to pervert the Course of Justice. At this Juncture, Lady Goddard’s sex inquiry has been COMPROMISED by the unlawful actions of the ICO and in particular the unlawful abuse of section 14(1) Vexatious Exemptions. In short the ICO are complicit with Surrey Police to debar the Publication of Jimmy Saville Tapes by the section 14(1) vexatious exemptions.

        Secondly, there is tangible evidence that the ECHR Registrar is acting as Judge Jury and Executioner in the manner she intercepts and destroys Legal Applications to the ECHR.

        I have drawn such matters to the attention of the Lord Chancellor Michael Gove, who has chosen to ignore me.

        For your information,action and files

        With thanks

        Alan M Dransfield

      • Alan M Dransfield

        Wirral inalltogether got it spot on when he said the FOIA was doomed

      • Alan M Dransfield

        The Jurisdiction issue is raised because the DCC did not own the Rugby Bridge until Jan 2014 some 5 years post my original for request .Therefore,the only response they could make (when they received my request in Apr 09) was DO NOT HOLD .They could not rely upon any other part of the FOIA 2000 and certainly not vexatious because a VEXATIOUS request can only be deemed under PA remit..
        Its not a case of wrong court,its a case of NO JURISDICTION because no offence had been committed so to speak. My request ref the Rugby Bridge was NOT under any PA Remit ,it was owned by a PLC and as I am sure even you understand that PLC are not subject to the FOA2000 (whoops).
        You are suggesting that the DCC or any PA can rely on a vexatious exemption even if the sought after data is NOT under the PA remit..
        The Dransfield Vexatious bullshit is politically motivated ,that’s why they forced it thru the courts to get a COURT AUTHORITY and a signature from Wikeley which could be used as Ammunition to GAG Joe Public.
        .Oh what a web we weave when we set out to deceive.(whoops).
        The DCC did not spot this failure,the ICO didn’t, the FTT didn’t (although they did declare my request was not vexatious, the UT also failed to identify this and low and behold,the CoA also failed to recognize the issue.
        Had they recognised the legal owner of the Bridge they could have saved about £100k taxpayers money.(whoops)

      • “You are suggesting that the DCC or any PA can rely on a vexatious exemption even if the sought after data is NOT under the PA remit.” Yes.

  23. Wirral In It Together

    Did I say, “pulling up the drawbridge” earlier chaps?
    I do apologise. I meant to say, “raise the Rugby bridge”

  24. Alan M Dransfield

    Nice one Wirral, lets hope that Lightning doesn’t strike the bridge or the Stadium during the Rugby World Cup in a couple of months.
    Never heard anything so stupid in my entire life when Jon claims that a PA can use section 14 vexatious on a FOIA requests .
    The analogy would be for me to put in a FOIA request to the DCC for details about Wembley Stadium and they could use a vexatious exemption.What a clown.

  25. Alan M Dransfield

    Jon, I am so pleased you found your father ,what a nightmare for you,well done.
    In your opening argument many moons ago you said the Upper Tribunal decision on the Dransfield Case GIA/3037/2011 was “PRETTY UNIMPEACHABLE”.
    We are about to find out because I have received the first green light from the Supreme Court of the UK. When I say the first green light,I refer to receiving the SEAL of acceptance on my application and now Four (4) Law Lords will consider my Bundle and I can’t obviously comment on my case other than to say it is under Final Consideration of the Supreme Court. My case has been a TEST CASE twice already,first at the UT ,then second at the Court of Appeal and it looks like I may get a PRILE via the Supreme Court, need to speak with the Guinness Book of Records on this matter??!!
    I know is only 3 but nevertheless,its a record??!!

    The subject title of my FOIA request back in May 2009 was for a copy of the As Built Health and Safety Files (ABHSF)for the Exeter Chiefs Rugby Bridge,which I claim was unsafe and unfit for purpose. I note with a wry smile the ABHSF has been released under the FOIA 2000 on two separate occasions in the last 8 weeks.
    Low and behold the ABHSF does not mention Lightning Protection ONE SINGLE time, thus making my H&S Allegations UNIMPEACHABLE thus my FOIA request should not have been considered vexatious.

    Now Jon, that’s what I CALL UNIMPEACHABLE.

    Its very disconcerting to see the FOIA/ICO remit has been transferred to the Cabinet Office.Bang goes the ICO Independence??!!
    BTW, the Cabinet office jumped on the Dransfield vexatious Bandwaggon on at least 3 different occasions in the past 12 months.
    One other unimpeachable topic for you Jon, it would appear my case has navigated thru the Lower Courts including the Court of Appeal under the WRONG JURISDICTION because the Devon County Council were not the legal custodian of the Rugby Bridge until Jan 2013. That’s number two UNIMPEACHABLE plane crashed on take off.
    Happy days Jon from the Hyerbolic Dransfield QC??!!

    • Thanks for your kind words Alan, it’s been a rocky few days.

      It sounds to me that this is just an administrative stage confirming receipt of your bundle. Also – the large majority of cases which get to the Supreme Court have gone through a three-stage process, via Upper Tribunal or High Court, then Court of Appeal, then Supreme Court. Any case which gets to the last is by definition a test case.

      I’m sure we’ve touched on this before, but your jurisdictional argument does not hold water. This is because s14(1) FOIA is about the nature of the request, not the underlying information. For example, if I were to ask Cabinet Office for information on investigations into whether the moon is made of blue cheese and I phrased it in abusive terms, they would be entitled to refuse to deal with the request on the grounds that it was facile, abusive and lacking serious purpose. This would be despite the fact that the public authority palpably would not hold the information itself. I’m not saying your request was similar, but if you are arguing that s14(1) is about the information rather than the nature of the request then I am sure that argument will founder.

      Anyway, thanks for the update and please do keep us informed.

      • Alan M Dransfield

        You are absolutely correct about the Moon and blue cheese but let us not forget my request was for the As Built Health and Safety file of the Rugby Bridge and all and sundry admit my request was benign,straight forward and polite and it NOW transpires the Bridge IS/WAS devoid of any Lightning protection whatsoever,hence my request could and should not be exempted via vexatious section 14/1.
        Time will tell if I FLOUNDER. Might get stuck in moon cheese or BULLSHITE??

      • I should have said that “s14(1) is about the nature of the request, *and sometimes the context/previous history of requests from the same person*, and not about the underlining information”.

      • Alan M Dransfield

        There is NO context or history owing to 13 Ghost documents and the sought after data has just been published which proves the bridge is/was devoid of any lightning protection,hence should not have been classed as vexatious.
        Oh what a web we weave when we set out to deceive.
        The available rugby document proves without a shadow of doubt that Dransfield the person was considered vexatious not his requests.

      • But you agreed the chronology of correspondence was correct in your First-tier Tribunal hearing and Judge Wikeley in the Upper Tribunal observed that you didn’t deny writing the correspondence referred to in that chronology. These are findings of fact that I am pretty sure you won’t be allowed to challenge/row back on at the Supreme Court.

  26. Alan M Dransfield

    The Supreme Court recently considered my appeal application and I am currently awaiting their decision.
    Maybe Santa will bring me some good news,i.e the SC have allows a full hearing?!

  27. Alan M Dransfield

    Supreme Court refused my application to Appeal the Court of Appeal Vexatious decision so must now go to the ECHR.
    In essence, the SC have rubber stamped the Vexatious BS which has now Gagger Joe Public.

  28. Alan M Dransfield

    Without doubt article 6 and 10 have been breached.
    I also note that Lord Burns and Lord Baker discussed my case last week,see their meeting mins para 7

  29. Alan M Dransfield

    Have you forgotten that the CoA and SC relied upon RETROSPECTIVE vexatious guidelines from the ICO.
    The vexatious guidelines were dated Nov 2014 whilst my FOIA request was dated Apr 08.
    No doubt you will condone such actions

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