R (Cart) v Upper Tribunal; R (MR) v Upper Tribunal; Eba v Advocate General for Scotland

On 22 June 2011 the Supreme Court handed down judgment in these appeals concerning the scope for judicial review by the High Court or the Scottish Court of Session of unappealable decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007.

In Cart & MR, the Court (Lady Hale giving the leading judgment) unanimously held that permission to apply for judicial review should only be granted where the criteria for a second-tier appeal are satisfied, namely where there is an important point of principle or practice or some other compelling reason to review the case. In the Court’s view, such an approach recognises that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. The Court of Appeal had been wrong to apply a stricter test whereby judicial review would be available only in “exceptional circumstances” such as outright excess of jurisdiction or denial of fundamental justice.

In Eba, the Court delivered a separate judgment (Lord Hope giving the judgment of the Court) unanimously holding that the same approach to judicial review of the Upper Tribunal applies in Scotland. The Court held that although there are differences in judicial control of administrative actions in Scotland, there is in principle no difference between the law of England and Wales and Scots law as to the substantive grounds on which a decision by a tribunal which acts within its jurisdiction may be open to review. Scots law was equally capable of tailoring the scope of the judicial review remedy according to the nature and expertise of the Upper Tribunal and the subject matter of the decisions that have been entrusted to it by Parliament.

Michael Fordham QC represented the Public Law Project as intervener; Iain Steele represented JUSTICE as intervener. James Eadie QC and Sam Grodzinski QC appeared for the Secretaries of State for Justice and for the Home Department and the Child Maintenance and Enforcement Commission.