One of the first posts I wrote on this blog concerned the Supreme Court’s decision in Jones  v First-tier Tribunal [2013] UKSC 19. At the heart of the case was the distinction between questions of law and fact, and its implications for judicial oversight of tribunals. The distinction is important because if an issue that has been erroneously determined is one of law, then an error of law has been committed, rendering the tribunal’s decision vulnerable whether on appeal on a point of law or on judicial review. In contrast, a determination flawed by an error of fact is not necessarily vulnerable (albeit that, as the Court of Appeal’s decision in E v Secretary of State for the Home Department [2004] EWCA Civ 49 [2004] QB 1044 affirmed, an error of fact can, in certain circumstances, amount to an error of law).

Against this background, Jones was significant for two reasons. First, Lords Hope and Carnwath were refreshingly frank about the way in which a court might decide whether to characterise a given matter as one of law or fact. They urged a ‘pragmatic’ approach that facilitated an appropriate degree of oversight, rather than an analytical approach that treated membership of the categories of ‘law’ and ‘fact’ as conceptually determinate. Second, the dizzying proposition was advanced that whether something is a question of law or fact may turn upon the institution that is carrying out the characterisation exercise — meaning that the same issue might be characterised differently at distinct stages in the appellate/review process.  The Upper Tribunal, for instance, might take a liberal approach to characterising a question as one of law, in order that it can exercise sufficient oversight of the First-tier Tribunal (‘FTT’) and develop, where relevant, ensure consistency of approach. On the other hand, the High Court (on judicial review) or the Court of Appeal (on appeal) might be less inclined to characterise a matter determined by a tribunal as one of law, so as to guard against undue micromanagement of the tribunals system by the senior courts.

These matters were very much to the fore when the Court of Appeal recently decided Criminal Injuries Compensation Authority v Hutton [2016] EWCA Civ 1305. The son and daughter of the victim of a fatal stabbing — the perpetrator of which was convicted of manslaughter — made a claim to the Criminal Injuries Compensation Authority (‘CICA’). But the claim was 40 years out of time: the stabbing occurred in 1966, but the claim was not brought until 2008. The scheme required claims to be made ‘as soon as possible after the [relevant] incident’ and ‘within two years’. The time limit could, however, be waived if a claims officer considered that ‘by reason of the particular circumstances of the case it is reasonable and in the interests of justice to do so’.

The CICA’s refusal to waive the time limit was upheld on appeal by the FTT. However, the Upper Tribunal quashed the FTT’s decision, finding it to be legally flawed because (among other things) the FTT had engaged in ‘speculation without evidence’ about when the son would have received sufficient information from family members to enable a claim to be made, and had wrongly ruled out extending time simply on the ground that the relevant parties had been unaware of the scheme until 2007/8. That brings us to the present judgment of the Court of Appeal, in which it determined an appeal on a point of law against the Upper Tribunal’s decision. The Court of Appeal overturned that decision, reinstating that of the FTT. Gross LJ (giving the only reasoned judgment, with which Floyd LJ and Rafferty LJ agreed) held that the FTT’s decision contained no material errors of law and that it was ‘fanciful’ to suggest otherwise.

In reaching that conclusion, the Court of Appeal took account of two crucial factors: namely, the relationship between and the respective roles of the FTT and the Upper Tribunal; and the relationship between and the respective roles of the Upper Tribunal and the Court of Appeal. Gross LJ emphasised — in line with well-established orthodoxy — that generalist courts ‘should exercise restraint and proceed with caution before interfering with decisions of specialist tribunals’. He also addressed — synthesising previous case law, including Jones — the relevance of the fact/law distinction in this regard:

When determining whether a question was one of ‘fact’ or ‘law’, this Court should have regard to context, as I would respectfully express it (‘pragmatism’, ‘expediency’ or ‘policy’, per Jones), so as to ensure both that decisions of tribunals of fact are given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field.

This suggests that a generalist court, such as the High Court or the Court of Appeal, should (insofar as relevant) exercise restraint in relation both to the FTT’s decision, to the extent that that decision engages the FTT’s role as tribunal of fact, and the Upper Tribunal’s decision as to the lawfulness of the FTT’s decision, given the Upper Tribunal’s role in shaping ‘the development of law and practice’ in the relevant field. But a further question arises that is distinct from, but relevant to, the question of the extent of the weight attached by the reviewing or appellate court to tribunals’ decision. For in assessing the lawfulness of the Upper Tribunal’s stance in respect of the FTT’s decision, the Court of Appeal had to decide on the proper relationship between those two tribunals, that relationship being pertinent to the position that the Upper Tribunal can properly adopt in relation to the FTT’s decision, and hence pertinent to any assessment made by the Court of Appeal of that position. The key question, then, was whether it was appropriate for the Upper Tribunal — as the apex tribunal responsible for shaping ‘law and practice’ in the relevant field — to take an expansive view of what counts as an issue of law, so as to facilitate intervention by it in relation to the FTT’s decision. According to Gross LJ, the answer — in the present circumstances — was ‘no’:

[E]ven with the observations [of the Supreme Court] in Jones well in mind, I cannot see that this case was one calling for guidance from the UT to shape the development of law and practice in respect of claims under the Scheme. It follows that in classifying issues before the FTT as those of ‘fact’ or ‘law’, questions of context (designed to facilitate the giving of general guidance by the [Upper Tribunal]) can have, at most, only very limited bearing.

This is a sensible caveat to the approach set out in Jones. If the argument in favour of permitting the Upper Tribunal to inflate the category of questions of law is that that Tribunal must have scope to ‘shape the development of law and practice’, there can be no justification for the Upper Tribunal taking such an expansive view of the category of questions of law when (as the Court of Appeal thought was the case here) the circumstances do not call for the exercise of the Upper Tribunal’s ‘shaping’ function. At the same time, however, the Court of Appeal in Hutton does not demur from the general view expressed in Jones that considerations of ‘context’ or ‘expediency’ can shift the law/fact distinction when there is good reason to accord the Upper Tribunal greater scope for intervention. It follows that while Hutton represents a welcome qualification of Jones, it does not depart from the highly pragmatic approach adopted in that case to the characterisation of issues of fact and law.

That approach is ‘pragmatic’ in the sense that it treats membership of the categories of ‘law’ and ‘fact’ as malleable for instrumental ends, rather than as conceptually preordained. Indeed, it reduces ‘law’ and ‘fact’ to little more than labels that signal whether intervention is considered appropriate. It does not, however, follow that the road down which courts are now going, through judgments such as Jones and Hutton, need be ‘pragmatic’ in the sense of being unprincipled or haphazard. Indeed, Hutton itself acknowledges that the legitimacy of inflating the error of law category will itself turn upon the extent to which there are sound reasons for affording the Upper Tribunal scope to supply relevant direction. It was the absence, in the Court of Appeal’s view, of such sound reasons that drove its conclusion in Hutton.

All of this is, in one sense, a far cry from the taxonomical approach that has traditionally characterised administrative law in this sphere, according to which the appropriateness of judicial intervention is determined through the conduct of classificatory exercises (‘law’ or ‘fact’?; ‘jurisdictional’ or ‘non-jurisdictional’?) that are performed according to (supposedly) determinate criteria. Yet arguably all that is happening is that policy considerations once secreted within that taxonomy’s interstices are now being brought out into the open. And that might well be a good thing — provided that this newly transparent approach can in time be made to crystallise in a way that is principled and stable. The risk, otherwise, is that the courts’ preparedness to exercise oversight may acquire an air of unpredictability that smacks of palm-tree adjudication. It might be retorted that such criticism has long been warranted, thanks to the instability and instrumental manipulation of the law/fact and jurisdictional/non-jurisdictional boundaries. But the crutch of professedly analytical reasoning has at least hitherto served (to borrow a metaphor much used in relation to another debate concerning English administrative law) as a fig-leaf. If the fig-leaf is now to be discarded, the courts must ensure that what lies beneath is capable of surviving critical scrutiny.