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United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Milford Haven Port Authority v Information Commissioner [2007] UKIT EA_2007_0036 (06 November 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0036.html
Cite as: [2007] UKIT EA_2007_36, [2007] UKIT EA_2007_0036

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Information Tribunal Appeal Number: EA/2007/0036
Information Commissioner’s Ref: FER0072936
Considered on the papers
On 5 November 2006
Decision Promulgated
6th November 2007
BEFORE
CHAIRMAN
John Angel
and
LAY MEMBERS
ANNE CHAFER AND GARETH JONES
Between
MILFORD HAVEN PORT AUTHORITY
Appellant
And
INFORMATION COMMISSIONER
Respondent
And
RICHARD BUXTON ENVIRONMENTAL & PUBLIC LAW
st
1st Additional Party
And
SOUTH HOOK LNG TERMINAL CO LTD
2ND Additional Party
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Appeal Number: EA/2007/0036
Decision
The Tribunal makes no award of costs against the Appellant or any other party.
Reasons for Decision
Introduction
1.  The Appellant appealed to the Tribunal against the Information Commissioner’s (IC)
Decision Notice in this case. The original complainant, Richard Buxton, was joined as
the 1st Additional Party. A Directions Hearing was held and orders issued. Later the
Appellant decided to withdraw its appeal and disclosed the disputed information to the
1st Additional Party.
2.  The 1st Additional Party then applied to claim their costs and this hearing is solely for
the purposes of considering that application.
The proceedings
3.  The IC issued the Decision Notice on 28th March 2007 and ordered that disputed
information, namely the Milne Report and the sections of the Qatargas II Report that
constituted environmental information, be disclosed to the 1st Additional Party within 35
days of the Notice. The IC also found that the Appellant was in breach of Regulations
5(2) and 14(2) of the Environmental Information Regulations 2004 (EIR) and had not
provided the information requested or a refusal notice within the specified time limits.
The Appellant appealed to this Tribunal on 25th April 2007.
4.  The Appellant requested that South Hook (2nd Additional Party) be joined and Richard
Buxton, the complainant, also applied to be joined and both were joined as parties on
11th May 2007.
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Appeal Number: EA/2007/0036
5.  A directions hearing was held on 21st June 2007 and directions issued on 2nd July
2007. A notice of hearing was sent to the parties on 3rd July setting down the hearing
for 3 days on 5th, 6th and 7th November 2007. A transcription service was booked
because of the likely complexity of evidence and submissions.
6.  The Appellant withdrew the appeal on 28th September 2007. Before that time a number
of directions orders would have had to be complied with involving all parties in a
significant amount of preparation work. In the letter of 28th September the Appellant
explained that the appeal was being withdrawn “purely as a commercial matter” and
despite the existence of a confidentiality agreement between the Appellant and 2nd
Additional Party.
7.  On 15th October the Appellant sent the disputed information to the 1st Additional Party.
The Tribunal’s powers to award costs
8. The Tribunal’s power to make a costs order both under the Freedom of Information Act
2000 and EIR are set out in rule 29 of the Information Tribunal (Enforcement Appeals)
Rules 2005 (IT Rules), which provide as follows:
"(1) In an appeal before the Tribunal, including one withdrawn under rule 12
above, the Tribunal may make an order awarding costs -
(a)  against the appellant and in favour of the Commissioner where it
considers that the appeal was manifestly unreasonable;
(b)  against the Commissioner and in favour of the appellant where it
considers that the disputed decision was manifestly unreasonable;
(c)  where it considers that a party has been responsible for frivolous,
vexatious, improper or unreasonable action, or for any failure to comply with
a direction or any delay which with diligence could have been avoided,
against that party and in favour of any other.
(2)   The Tribunal shall not make an order under paragraph (1) above
awarding costs against a party without first giving that party an opportunity of
making representations against the making of the order.
(3) An order under paragraph (1) may be to the party or parties in question to
pay to the other party or parties either a specified sum in respect of the costs
incurred by that party or parties in connection with the proceedings or the
whole or part of such costs as taxed (if not otherwise agreed).
(4) Any costs required by an order under this rule to be taxed may be taxed
in the county court according to such of the scales prescribed by the county
court rules for proceedings in the county court as shall be directed by the
order."
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Appeal Number: EA/2007/0036
9.  Costs are defined in rule 3(2) of the IT Rules to include "fees, charges, disbursements,
expenses and remuneration".
10. The Tribunal can only award costs against a "party". Party is defined in rule 3(3) of the
IT Rules to mean 'the appellant, or the Commissioner, or a person joined to an appeal
in accordance with Rule 7 …". The Additional Parties have been joined as parties in
accordance with rule 7.
11. To summarise, rule 29(1)(3) authorises the Tribunal to make an award of costs against
a party and in favour of any other in three circumstances:
(1) where "it considers" that a party has been "responsible for frivolous, vexatious,
improper or unreasonable action" or;
(2) for "any failure to comply with a direction" or;
(3) for "any delay which with diligence could have been avoided".
12. In relation to the second limb of rule 29(1)(3) on the facts of this case there has been
no failure to comply with a directions order.
13. In relation to the third limb the Tribunal considers that the delays envisaged by the rule
relate to the conduct of the proceedings and again on the facts of this case we find that
there have been no such delays.
14. In our view rule 29 only relates to the conduct of a party in relation to proceedings
before the Tribunal and not before the IC. This is accepted by the Appellant and 1st
Additional Party. However rule 29 particularly covers withdrawn appeals, the situation
in this case.
The application for costs
15. Following the withdrawal of the appeal the 1st Additional Party wrote to the Tribunal by
letter dated 3rd October 2007 claiming that the Appellant’s conduct was caught by rule
29(1)(c), and, in effect, that the Appellant had abused the FOI/EIR process to delay
disclosing the disputed information for several years. The 1st Additional Party
particularly relied on an email dated 2nd April 2007 (the Email) from Ted Sangster, the
Chief Executive of the Appellants, following the Decision Notice to the third parties to
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Appeal Number: EA/2007/0036
whom confidentiality obligations may have been owed including the 2nd Additional
Party. The Email considered various options on how to proceed following the issuing of
the Decision Notice. The 1st Additional Party refers to the phrase “buying more time” in
the Email as evidence of the conduct caught by rule 29(1)(c).
16. The Tribunal accepted the letter of 3rd October as an application for costs under rule 29
and invited the parties to make submissions in relation to the application. Both the
Appellant and the 1st Additional Party have made several submissions in response to
this invitation which the Tribunal has taken into account.
17. Having considered the application we do not find that it raises questions as to whether
the Appellant has been responsible for “frivolous or vexatious” action, but only whether
its conduct was “improper or unreasonable”. Even if we are wrong to interpret the
application in this way we find that the conduct in this case is not frivolous or vexatious.
As a result we have restricted our considerations as to whether the Appellant’s conduct
was improper or unreasonable.
Conduct of a party
18. We turn to consider the first limb of rule 29(1)(3)(c) set out above in paragraph 11(1).
A differently constituted division of this Tribunal in Bowbrick v The Information
Commissioner(1) and Nottingham City Council(2) EA/2005/0006 examined the test to
be applied in relation to unreasonable actions which is set out below.
19. In analogous situations, it has been considered by tribunals with similar provisions to
rule 29. The Financial Services and Markets Tribunal (FSMT), in a written decision
from April 2006 (Baldwin v FSA, Case Number Fin/2005/0011), stressed that it could
and should be distinguished from an administrative court charged with applying the
Wednesbury unreasonableness test (that is the test formulated for the purpose of
determining whether a public authority has acted outside its statutory powers).
According to Andrew Bartlett QC, Chairman of the FSMT, “the Tribunal, unlike the court
in the Wednesbury case, is expressly directed by paragraph 13 to make its own
judgment of what is reasonable: “(1) If the Tribunal considers that a party … has …
acted unreasonably”.
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Appeal Number: EA/2007/0036
20. The FSMT, following a review of the facts, concluded that, in its opinion, the
investigation at issue in the proceedings had not been unreasonable and made no
order for costs against the FSA. Its approach to the application of its power to award
costs contained in the Financial Services and Markets Act 2000 Schedule 13
paragraph 13 is summed up in its conclusion at paragraph 27 of the decision:
“Taken analytically item by item, and with the benefit of hindsight, it might be
possible to characterise some of the elements of conduct … as
unreasonable. But we think it important in this case to keep in mind also the
broader picture and not to over-emphasize the significance of any individual
feature of the investigation. We also remind ourselves that a wrong view or
approach is not necessarily an unreasonable view or approach …”
21. In an earlier case, a differently constituted FSMT appeared to have been guided by the
basic, if elusive, principle of "fairness". In Davidson v the FSA (30 July 2004) (the
notorious "Plumber case"), the FSMT, although recognising that it could only make a
costs order if a party acted unreasonably, noted that "fairness" had been a
consideration in its review of the facts and its decision of how much the party should be
ordered to pay. (There it made an order that the FSA pay 50% of the costs.)
22. The EAT has made costs orders against parties where it has determined that the
party's conduct was unreasonable. For example, the EAT has awarded costs against
an appellant where the facts indicated that the appellant delayed in withdrawing or
abandoning proceedings, or proceeded with unmerited actions contrary to legal advice,
or failed to fully engage with the proceedings once the proceedings had commenced.
The Appellant’s explanation of their conduct
23. The Appellant has explained that the Email was a private communication and should
not have come into the hands of the 1st Additional Party. In any case they maintain that
it is entirely proper in contentious proceedings for them to consider the options and
tactics open to them with other interested parties, particularly as they considered they
were still under confidentiality obligations to the 2nd Additional Party. The Email
indicates that the parties were still taking legal advice.
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Appeal Number: EA/2007/0036
24. The 1st Additional Party disputes that the Appellant was subject to any confidentiality
obligations particularly following the Decision Notice. Whether this is the case is clearly
a matter for the Tribunal to determine if relevant at any hearing. The Tribunal is of the
view that it would have been likely to have been a relevant consideration and therefore
not unreasonable for the Appellant to wish to pursue at the appeal.
25. In relation to the Email although it was clearly intended as an internal matter, it has now
been inadvertently disclosed, and cannot be ignored. On closer examination the
Tribunal finds that it is a consultation document setting out the position as Mr Sangster
saw it following the Decision Notice. He summarises the IC’s findings, the position on
the confidentiality agreement, the need to decide whether to appeal, the tactics and
public position on whichever action they decide and the fact that the matter is also in
the hands of lawyers. This seems to us as an approach which is entirely reasonable
considering the position of a party who has just lost a case and is deciding what to do
next. The fact terms such as “buying time” are used is not unreasonable in the context
of the Email. Most such consultations are based on commercial and legal
considerations which again is entirely proper.
26. The Appellant then brought our attention to other proceedings with the implication that
it was the 1st Additional Party who was being unreasonable. We cannot accept this line
of argument as in our view it has no relevance to this application particularly where the
Decision Notice was in favour of the 1st Additional Party.
27. The Appellant then raises the Indemnity Principle and whether the 1st Additional Party
can bring such an application for costs where it cannot show that it has incurred costs
which ought to be reimbursed. The 1st Additional Party are professional advisers who
maintain that they made the FOI/EIR request, on behalf of Safe Haven and Alison
Hardy (the original complainants) who were concerned with the environmental issues
raised by the disputed information. These complainants they maintain are liable for
their costs. It is not unusual for advisers to make FOI/EIR requests in their own name
on behalf of clients who would be liable for their costs. The Tribunal agrees that the
principle does not apply in this case.
28. Our attention was drawn to an appeal for funds by the original complainants to cover
the 1st Additional Party’s costs. If the funds were raised, the Appellant argues, there
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Appeal Number: EA/2007/0036
could be double recovery if the Tribunal ordered it to pay costs. The 1st Additional Party
makes the point that as it is acting in a representative capacity any monies paid on
account would be refunded. The Tribunal accepts this submission.
29. Finally the Appellant seeks to distinguish this case from Bowbrick. In that case the
Council failed to comply with the Tribunal’s directions and took some 21 months to
complete a proper investigation of the material requested. In this case the Appellant
argues it has brought a genuine appeal and fully co-operated with the Tribunal. In the
process of preparing for the appeal the 2nd Additional Party agreed to disclosure of the
disputed information and the Appellant then took immediate action to withdraw the
appeal. Rather than acting improperly or unreasonably, the Appellant argues that their
conduct was entirely reasonable.
The 1st Additional Party’s case
30. The 1st Additional Party’s principal submission is that the Appellant was wrong to have
brought the appeal or at least not to have withdrawn it at an earlier stage. It
particularises matters in support of this submission. Some suggest that the Appellant
has taken a wrong view or approach. Even if this is the case we agree with the FSMT’s
decision in Baldwin this is not necessarily an unreasonable view or approach. In our
view these are proper matters for any party considering an appeal or which would need
to be determined by the Tribunal on an appeal. Therefore we cannot find them
improper or unreasonable actions.
31. We accept that the time it takes to withdraw an appeal is a factor which needs to be
taken into account in determining an application for costs. In this case, however, we
find that the time taken was not unreasonable, although we would criticise the
Appellant for not sending the 1st Additional Party a copy of the letter of 28th September
2007 on that date.
32. The 1st Additional Party also puts much emphasis on the course of conduct exposed by
the Email which it intimates is unreasonable. In view of our findings in paragraph 25
above we do not place much weight on this submission.
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Appeal Number: EA/2007/0036
The Tribunal’s findings
33. We find that the facts of this can be distinguished from Bowbrick and accept the
Appellant’s contentions set out in paragraph 29 above. There was no dispute that the
information existed. The grounds of appeal appear to us as proper grounds upon which
to launch an appeal. The Appellant conducted itself properly throughout the
proceedings. As happens in cases following the joining of parties and the
implementation of directions orders, parties reconsider their position, and as in this
case, withdraw their appeal.
34. We find that the Appellant’s conduct was reasonable in the circumstances of this case.
It is clearly unfortunate for the 1st Additional Party who has incurred additional costs in
these proceedings and delay in the disputed information being disclosed. Before other
courts an additional party in a similar situation may have been awarded costs
automatically where an appellant withdraws its case. This is not the position in this
Tribunal. Costs are rarely awarded and only under the circumstances set out under rule
29 of the IT Rules.
35. We therefore unanimously find that the Appellant did not act improperly or
unreasonably under rule 29 and therefore make no order for costs.
JOHN ANGEL
Chairman                                                                     Date         6th November 2007
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