Tribunal halts all Information Commissioner's Office cases because UK data watchdog can't print or organise PDFs
- Reference: 1586355008
- News link: https://www.theregister.co.uk/2020/04/08/ico_tribunal_cases_halted_bundle_bewilderment/
- Source link:
Not only did the First-Tier Tribunal's General Regulatory Chamber (GRC) grant a 28-day stay of all cases against the ICO, it did so just one day after the ICO asked a judge to temporarily stop appeals against its decisions from being decided.
Tribunal judge Alison McKenna, top judge of the GRC, [1]halted all information rights appeals against ICO rulings made under the Freedom of Information and Data Protection Acts until May.
An analysis of public GRC listing data by El Reg revealed that 41 cases fall within the 1 April judicial order's terms – with another 21, for which full data was not available, potentially being caught in the net too.
The Register has been shown a copy of the ICO's request to Judge McKenna. The request, which triggered the blanket stay, said in part:
The Tribunal's standard practice in this area is to direct the respondent to produce several copies of paper bundles for each appeal for the Tribunal and any party.
Given the Covid-19 pandemic, the Tribunal made enquiries about the Information Commissioner's ability to create and provide electronic bundles for the Tribunal's use. The Commissioner is exploring this option but at present, the Information Commissioner's office is not equipped to prepare and disseminate electronic bundles. Further, with the Commissioner's office's closure, it is not presently possible to provide paper bundles therefore at present we are unable to progress any appeals in readiness for hearings.
Bundles, in legalese, are the master pile of documents used in a court or tribunal case that lawyers from both sides can refer the judge to. A bundle consists of several lever-arch files containing hundreds of pages of documents, some relevant and some less so, painstakingly paginated and set up with numbered and lettered dividers.
As courts and tribunals slowly join the 21st century, many of them have begun accepting electronic bundles, where everything is done with PDF documents instead of sheets of paper.
Bundles' use in court is best described with an example. Take this snippet from the [2]Autonomy trial . A barrister said to a witness being cross-examined: "Can I ask you to look at the very next email in the bundle, please, K10/132.1/1. This is another email that you sent out."
K10 is the folder reference. 132.1 is the tab within the folder. 1 is the page number behind that particular tab. The next page of that email printout would be K10/132.1/2, while the next email would start on K10/133/1.
People whose cases have been unilaterally halted in this way can ask the tribunal to set them in motion again before the 28 days has expired.
The ICO told The Register : "The Tribunal deals with appeals against notices issued by the Commissioner; the Commissioner is a respondent to every such appeal. The Tribunal's standard practice is to ask respondents to appeals for paper bundles for each case. Once the ICO office closed due to the pandemic, it was not possible to create the paper bundles which is why we suggested a general stay of tribunal cases for a fixed period. We are currently exploring the option of using electronic bundle software."
The Ministry of Justice referred us to the judiciary press office (judges are separate and independent from government), which declined to answer our questions as to whether any Tom, Dick or Sally without access to a printer or PDF collation skills could score a month-long delay to their case by telling the chamber president to stop all their cases while they organise themselves.
A spokeswoman said: "We aren't able to comment on whether a judge would grant future hypothetical applications which might be made by other parties, as it would depend on the nature of the application," but added: "There is of course a right of appeal against the granting of a judicial decision to stay a case. That would be to the Upper Tribunal (Administrative Appeals Chamber) on a point of law and with permission."
It is quite unusual for legal cases to be paused just because one side can't put a stack of PDFs into order. The underlying cause here appears to be, if the ICO's version of events is to be believed, the First-Tier Tribunal's apparent refusal to work from electronic bundles combined with the ICO's inability to organise PDF files for judges' convenience.
Moreover, the speed with which the tribunal imposed the delay on ICO cases at the ICO's request, seemingly without consulting with the other parties first, may cause some to wonder whether the government department's favoured status with the tribunal extends to judgments as well as delays. ®
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[1] https://www.judiciary.uk/wp-content/uploads/2020/04/01-Apr-20_SPT_GRCinfo-rights-Directions-for-a-General-Stay.pdf
[2] https://search.theregister.co.uk/?q=autonomy+trial
[3] https://go.theregister.co.uk/tl/1936/-8552/how-to-accelerate-brilliant-digital-experiences-with-low-code?td=wptl1936
Er ...
Is there still also the requirement that these "hearing bundles" be buried in soft peat for three months and then recycled as firelighters?
Re: Er ...
Maybe - provide an authentic granny, buried at the same time is delivered. I am unclear as to whose GRandma it thas to be, but one assumes that there must be a farming business for busy lawyers.
(You can tell I have had a slow and mildly frustrating day although not for the obvious CV related problems).
Now if I were a plaintiff
I'll bet plaintiffs unable to print their documents would not be accepted as a reason for delaying.
I could go in with a workstation airgapped from their network (i.e. mine) and set up the facility for them in the time it takes for them to give me their email address.
They should be stung for this, and stung bad.
Re: Now if I were a plaintiff
And how long do you store that workstation in case of an appeal, or if the case is referred to as precedence in future cases?
Same in the county courts
We've got a similar issue - we'd love to send PDF bundles to the County Court but most courts still insist on printed bundles. To be fair the Judiciary would also love PDF bundles (they all have laptops and iPads now) - the sticking point appears to be the court clerks (who are the gatekeepers). We're trialling a system which is already used in a lot of the crown courts and some of the higher appeal courts - lets you ingest documents and then automatically indexes them, adds the appropriate cross-references between documents, etc. Then all parties can either just use a link to access the bundle directly in an interactive dataroom, or if you need to go old-school the bundle can be exported as a PDF (with automatic internal hyperlinks) or printed out for the terminally old-fashioned.
We're actually hoping to be able to use Covid-19 to force this issue; there was a change to the Civil Procedure Rules rushed out a few days ago which shows the Court Service is moving in the right direction but it's a chicken and the egg situation - no-one wants to be the first to use an electronic bundling system as until there is a successful precedent there is a risk that you could get censured by the Court for not having provided the documents in an approved form.
PS. One positive effect of Covid is that HMCTS have generously agreed that the email size limit for court service mailboxes will be lifted from 10mb to 25mb (except Judges who are already allowed to send/receive emails up to 150mb).
Re: Same in the county courts
Hahahahhahahahahahha MegaBytes. LOL
"As courts and tribunals slowly join the 21st century..."
Clearly a typing error. This should be "As courts and tribunals slowly join the 20th century...".
Re: "As courts and tribunals slowly join the 21st century..."
If courts can operate online do you think this means barristers won't have to wear the silly wigs? Or will it be like most video calls, only the top half needs to be dressed?
Re: "As courts and tribunals slowly join the 21st century..."
21st - that seems optimistic.
Anything involving the law is the last to catch up with technology
10 years ago I was buying a house and my solicitor advised me to buy a box file because "you're going to end up with a lot of paper". How right he was. PDF, email and not needing to print documents were very much possible then. Fast forward to buying another house only a few years back and nothing had really changed.
There was a story on The Reg a few months ago about courtrooms and Windows XP laptops. My main thought behind all this is - if you're talking about anything involving the law, and there is a heavily tried and tested system of doing things, people will be reluctant to change because of the gravity of what might happen if there's a cock-up.
I'm not suggesting I think this is the way forward. But if the ICO tried to do what the average person here thinks is simple (organising PDF's for example) - and cocked it up - they'd be labelled incompetent. That's the least of their concerns though as there could be larger implications for themselves or other people. So they can't win in this case (no pun intended).
Re: Anything involving the law is the last to catch up with technology
You can thank an almighty public sector IT cock-up for that. Land Reg have been trying to do e-conveyancing for about 15 years now - every few years they spaff millions of pounds at a provider, spend a few years pissing it up the wall and then realise the proposed solution won't work. In 2002 it was called e-conveyancing, in 2008 it was called Chain Matrix, a few years ago it was going to be blockchain.
Last I heard the big sticking point was that transferring property requires a deed which has to be witnessed (rightly so, you wouldn't want to be able to transfer property that could be worth millions just on the say so of a single signature), and no-one has yet figured out a legally watertight way to do electronic signatures in such a way that someone can reliably witness the e-signature in realtime.
Maybe the creation and use of PDF's has not been covered in the magazine What Quill Pen yet.
Bet they don't know how to use email
How long before they accidentally copy in hundreds of random people with electronic 'bundles' that don't belong to them?