Cart v Upper Tribunal

Facts

Cart and the other appellant, MR (Pakistan), each had an appeal from a First-tier Tribunal decision refused permission to appeal by the Upper Tribunal, which under the Tribunals, Courts and Enforcement Act 2007 had no onward appeal. Each sought judicial review of that refusal in the High Court. A parallel Scottish case, Eba, was decided at the same time under the supervisory jurisdiction of the Court of Session.

History

The Divisional Court held that judicial review was available in principle but should be limited to the second-appeals criteria, and the Court of Appeal agreed. The claimants appealed to the Supreme Court.

Issue

Whether decisions of the Upper Tribunal refusing permission to appeal are amenable to judicial review, whether the 2007 Act excluded it, and if review is available, what limits apply.

Held

Appeals dismissed. Judicial review of the Upper Tribunal is available, but only where there is an arguable error of law which also raises an important point of principle or practice, or there is some other compelling reason to hear the case.

Ratio

• The Upper Tribunal, although a superior court of record, is not equivalent to the High Court, so its decisions are not immune from judicial review merely because of its status.
• The Tribunals, Courts and Enforcement Act 2007 did not clearly oust judicial review of the Upper Tribunal, and ordinary principles of statutory construction require clear words before the jurisdiction of the High Court is excluded.
• Because the tribunal system already provides a full first appeal and a rigorous permission stage, the proportionate scope of judicial review of a permission refusal is limited to cases satisfying the second-appeals test: an arguable error of law that raises an important point of principle or practice, or some other compelling reason.

The judgments

Key reasoning

• The principle behind Anisminic that errors of law by inferior bodies can be corrected applies to the Upper Tribunal unless clearly excluded, and the Upper Tribunal is not a court equivalent to the High Court.
• The decision whether to allow judicial review of a final-instance body is a question of proportionality in the use of judicial resources: the remedy should be available where a real prospect of success and a point of wider importance exist, not for every error.
• The second-appeals test already used in the Court of Appeal gave a ready benchmark that avoided inventing a new standard.

Where it fits in the module

For FHS Administrative Law, Cart is the principal modern authority on ouster and on the proper reach of judicial review into the tribunal system. It tests whether Anisminic-style reasoning survives where Parliament has built a hierarchy of specialist tribunals, and it frames the argument that Parliament may calibrate the intensity of review but should say so clearly. Section 2 of the Judicial Review and Courts Act 2022 later removed Cart-type review, so students must be able to argue both whether the Cart compromise was principled and whether the legislative reversal is consistent with the rule of law.

Criticisms

• The second-appeals test is a policy compromise rather than something derived from the 2007 Act, so the court was effectively rewriting the scope of review rather than applying statutory text.
• Treating the Upper Tribunal as not equivalent to the High Court is a status argument that sits uneasily with its being a superior court of record designed to bring finality to the tribunal system.
• Statistics later relied on by government showed that very few Cart reviews succeeded, which supports the argument that the Supreme Court overestimated the value of the extra layer and underestimated its cost.
• The rule of law justification for review is arguably undermined by the court itself limiting that review to cases with wider importance, since an individual injustice not raising a point of principle goes uncorrected.