R (Cart) v Upper Tribunal  EWCA Civ 859
Judicial review of Upper Tribunal decisions is restricted to cases of outright excess of jurisdiction or fundamental denials of procedural justice. [Caution.]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Judicial review — Court’s jurisdiction — Upper Tribunal — Tribunal “superior court of record” — Tribunal refusing permission to appeal to itself — Decision unappealable — Whether tribunal alter ego of High Court — Whether decisions susceptible to judicial review — Tribunals, Courts and Enforcement Act 2007, s3(5) Regina (Cart) v Upper Tribunal (Public Law Project intervening)
The Upper Tribunal, while subject to the supervisory jurisdiction of the High Court, was not amenable to judicial review to correct an error of law made in the course of an adjudication which the tribunal was authorised to make.
The Court of Appeal so held in a reserved judgment in dismissing an appeal by the claimant, Rex Cart, from decision of the Divisional Court of the Queen’s Bench Divison! on 1 December 2009 to dismiss his claim for judicial review of the decision of the Upper Tribunal on 30 January 2009 to grant him only limited permission to appeal against a decision of the First-tier Tribunal.
SEDLEY LJ, delivering the judgment of the court, said that the Upper Tribunal was not an avatar or the alter ego of the High Court: far from standing in the High Court’s shoes, the shoes in which the Upper Tribunal stood were those of the tribunals it had replaced. Parliament in enacting the Tribunals, Courts and Enforcement Act 2007 had not placed the Upper Tribunal wholly beyond the reach of judicial review. The supervisory jurisdiction of the High Court ran to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language. There was no such language in 2007 Act. The statute invested with standing and powers akin to those of the High Court a body which would otherwise not possess them precisely because it and the High Court were not, and were not meant to be, courts of co-ordinate jurisdiction. However the tribunal system created by the 2007 Act was designed to be so far as possible a self-sufficient structure, dealing internally with errors of law made at first instance and resorting to higher appellate authority only where a legal issue of difficulty or of principle required it. Two principles needed to be reconciled in order to arrive at a proper judicial policy. One was the relative autonomy with which Parliament had invested the tribunals as a whole and the Upper Tribunal in particular. The other was the constitutional role of the High Court as the guardian of standards of legality and due process from which the Upper Tribunal was not exempt. There was a true jurisprudential difference between an error of law made in the course of an adjudication which a tribunal was authorised to conduct and the conducting of an adjudication without lawful authority. Both were justiciable before the Upper Tribunal if committed by the First-tier Tribunal, but if committed by the Upper Tribunal would go uncorrected unless judicial review lay. The same was of course true of errors of law within jurisdiction but those resided within the principle that a system of law, while it could guarantee to be fair, could not guarantee to be infallible. Outright excess of jurisdiction by the Upper Tribunal and denial by it of fundamental justice, should they ever occur, were in a different class: they represented the doing by the Upper Tribunal of something which Parliament could not possibly have authorised it to do. The reason why decisions of the Upper Tribunal within jurisdiction should not be amenable to judicial review, when those of their predecessors the social security commisioners had been, was that the new tribunal structure, while not an analogue of the High Court, was something greater than the sum of its parts. It represented a newly coherent and comprehensive edifice designed, among other things, to complete the long process of divorcing administrative justice from departmental policy, to ensure the application across the board of proper standards of adjudication, and to provide for the correction of legal error within rather than outside the system, with recourse on second-appeal criteria to the higher appellate courts
!;  WLR (D) 198
CA: Sedley, Richards LJJ, Sir Scott Baker: 23 July 2010
Appearances: Richard Drabble QC and Charles Banner (instructed by David Burrows) for the claimant; James Eadie QC and Sam Grodzinski (instructed by Treasury Solicitor) for the Secretary of State for Justice and the Child Maintenance and Enforcement Commission, as interested parties; Michael Fordham QC and Tim Buley (instructed byPublic Law Project) for the Public Law Project, intervening by written submissions; the Upper Tribunal did not appear and was not represented.
Reported by: Geraldine Fainer, barrister