First-tier Tribunal Refuses Appeal in Nightingale v The Information Commissioner Due to Procedural Tardiness and Lack of Jurisdiction

Citation: [2024] UKFTT 19 (GRC)
Judgment on

Introduction

The case of Graham Nightingale v The Information Commissioner concerns an application made to the First-tier Tribunal, General Regulatory Chamber (Information Rights), by an individual dissatisfied with the resolution of a complaint made to the Information Commissioner’s Office (ICO). This article examines the decision of the tribunal, analyzing the legal principles employed by Judge Alison McKenna in refusing permission for the application to proceed and striking out the Notice of Application.

Key Facts

Graham Nightingale, the Applicant, sought an order under section 166 of the Data Protection Act 2018 following the ICO’s response to his complaint. The applicant’s Notice of Appeal was dated 2 October 2023, regarding the ICO’s repeated conclusions communicated to him, which originated from a letter dated 15 September 2022.

The Registrar directed the Applicant to justify the delayed application and, subsequently, on 15 December 2023, refused to grant an extension of time, also striking out the appeal. The Applicant then sought a fresh judicial consideration, which brings us to the present decision.

The legal principles applied in this case revolve around judicial considerations for proceeding out of time and the First-tier Tribunal’s jurisdiction under section 166 of the Data Protection Act 2018. Judge McKenna identifies the Tribunal’s scope concerning reviewing the ICO’s decision-making process or mandating further action on a complaint.

Rule 8 (3)(c) Tribunal’s Rules

This rule allows the Tribunal to strike out a party’s case if it considers there is no reasonable prospect of success. Judge McKenna analyzed the merits of the appeal in light of the ICO’s response to the complaint and found no potential remedy that the Tribunal could offer.

Section 166 Data Protection Act 2018

The Tribunal’s powers under s.166 are limited, allowing intervention only when the ICO has failed to progress a complaint adequately. The judgments underpinning this interpretation of the statute, as upheld by the Upper Tribunal, High Court, and Court of Appeal, restrict the Tribunal from supervisory reviews or challenging ICO decisions that have been progressed to a final outcome.

Outcomes

Judge McKenna affirmed the Registrar’s decision, confirming:

  1. The application was made out of time, and no sufficient justification was provided to merit an extension.
  2. Any review of the ICO’s decision or the request for further action fell outside the Tribunal’s jurisdiction as defined by s.166.
  3. The Applicant’s Notice of Application was deemed to lack reasonable prospects of success since the ICO had issued an outcome letter and no further remedy could be offered under s.166.
  4. Consequently, the Notice of Application was struck out pursuant to rule 8 (3)(c), with the suggestion that the Applicant seek potential remedies through other courts if desired, recognizing their jurisdiction differs from the Tribunal’s.

Conclusion

The Tribunal, restricted by legislation and upper court judgments, cannot act beyond its prescribed role – which in this case, does not extend to supervising the ICO or reviewing its actions when it has provided a resolution to a complaint. As such, the Applicant’s appeal suffered from procedural tardiness and a lack of reasonable prospect of success given the Tribunal’s limitations, resulting in the appeal being justly struck out. Legal professionals should closely heed the Tribunal’s self-imposed restrictions to ensure applications fall within the accepted statutory framework and are made in a timely manner.