R (Cart) v Upper Tribunal
Refusals of permission to appeal by the Upper Tribunal are subject to judicial review only where there is an important point of principle or some other compelling reason.
Facts
The Tribunals, Courts and Enforcement Act 2007 created a new two tier tribunal system, with the Upper Tribunal designated as a superior court of record. Mr Cart and other claimants had been refused permission to appeal by both the First-tier Tribunal and the Upper Tribunal, and they sought judicial review of the Upper Tribunal's refusal. The government argued that the Upper Tribunal's decisions were not subject to judicial review because it was a superior court of record, like the High Court.
Legal principle
The Supreme Court held that the Upper Tribunal's decisions to refuse permission to appeal were subject to judicial review, because the 2007 Act did not exclude it, and designating the Upper Tribunal as a superior court of record did not make it immune from review. However, to avoid overloading the courts, the court held that judicial review should be available only on the second tier appeals criteria, where the case raises an important point of principle or practice, or there is some other compelling reason for the court to hear it. Lady Hale said that the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law. Parliament later reversed the decision in section 2 of the Judicial Review and Courts Act 2022, which ousts judicial review of such refusals, subject to limited exceptions.
Related cases on judicial review: scope, standing and ouster clauses
- Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
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- R (Walton) v Scottish Ministers [2012] UKSC 44
- R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909
- R v Hull University Visitor, ex p Page [1993] AC 682
- R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
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