The Relationship between Judicial Review & The Upper Tribunal: What Have the Courts Made of Cart?

Abstract

Ten years have gone by since the enactment of the Tribunals, Courts and Enforcement Act (“TCEA”) which laid down the legislative framework for the most important and comprehensive reorganisation of the tribunal system which has ever taken place in the UK. It has, furthermore, been eight years since Carnwath LJ (as he was) published an article, which will surely come to be viewed as a classic, arguing that this reorganisation of the tribunals necessitated a judicial ‘rethink’ of ‘the traditional allocation’ of functions ‘as between courts and tribunals.’ Most importantly, six years have now passed since the Supreme Court decided in Cart that judicial review is not to operate in the ordinary way in relation to decisions by the Upper Tribunal (“UT”) to refuse permission to appeal, but is to be restricted by the application of the so-called ‘second-appeals criteria.’