R (Cart) v Upper Tribunal [2011] UKSC 28
Facts
Cart had been unsuccessful in the specialist tribunal system and sought to challenge an Upper Tribunal refusal of permission to appeal. The new tribunal structure had created an Upper Tribunal described as a superior court of record, while limiting further statutory appeals. The litigation therefore raised the relationship between that specialist structure and the High Court's supervisory jurisdiction. Related proceedings tested similar limits. The central controversy was not whether disappointed litigants should receive an unlimited further appeal, but whether any judicial review remained available and, if so, under what threshold.
Legal Issue
Whether Upper Tribunal refusals of permission to appeal were amenable to judicial review and, if so, what threshold should limit access to that review.
Held
The Supreme Court held that the relevant refusals were not wholly immune from judicial review under the legislation then in force. It rejected unrestricted ordinary review and instead adopted the second-appeals threshold: an important point of principle or practice, or another compelling reason. This recognised the value of correcting serious or significant legal errors while respecting the specialist system and the need for finality. The Court was not creating a routine additional appeal from every adverse First-tier Tribunal decision. The statutory label of superior court of record did not itself settle the supervisory question. The individual challenges had to be assessed against the restricted threshold, rather than a general entitlement to reconsideration.
⭐ Legal Principle
Historically, Cart permitted judicial review of relevant Upper Tribunal permission refusals only where the second-appeals criteria were met. That route has since been substantially excluded by section 11A of the 2007 Act for decisions within its statutory scope.
Significance
Cart was a leading compromise between correcting important tribunal errors and preserving an efficient specialist appeal system. It rejected both complete immunity and unrestricted review of permission refusals. Its historical test must now be taught with the Judicial Review and Courts Act 2022: section 2 inserted section 11A into the 2007 Act, substantially excluding this form of review for decisions within its scope. Statutory exceptions and territorial qualifications remain. The old Cart criteria are therefore not a complete statement of the present route to challenge.
Common exam questions about this case
What threshold did Cart adopt for judicial review?
For the relevant Upper Tribunal refusals, the Supreme Court adopted criteria corresponding to those for second appeals: an important point of principle or practice, or another compelling reason. A claimant was not entitled to judicial review merely because a further argument about the first tribunal’s decision could be formulated.
Why was the Upper Tribunal not completely immune from review?
Its status as a superior court of record did not, under the legislation then considered, remove the supervisory jurisdiction altogether. The Supreme Court nevertheless took account of the specialist appeal structure and the need for finality. It restricted intervention rather than treating every permission refusal as an ordinary merits appeal.
Can a student apply the Cart test unchanged to a current refusal?
Not without checking the legislation. Section 11A of the Tribunals, Courts and Enforcement Act 2007, inserted in 2022, excludes review of specified permission refusals, subject to express exceptions and qualifications. Cart describes the earlier judicial settlement; the statutory provision controls cases falling within its later scope.