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IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER [INFORMATION RIGHTS] ON APPEAL FROM:

Information Commissioners Decision Notice No: FS50371018 Dated: 20 July 2011

Case No. EA/2011/0178

Appellant: First Respondent: Second Respondent:

David Whyte The Information Commissioner The Ministry of Defence

Heard at: Date of hearing: Date of decision:

Finance and Tax Tribunal, Bedford Square, London 16 February 2012 17 July 2012

Before CHRIS RYAN (Judge) and JACQUELINE BLAKE ROGER CREEDON

Attendances: Mr Whyte appeared in person. The Respondent did not attend and was not represented. For the Second Respondent: Lisa Busch

Appeal No. EA/2011/0178

Subject matter:

Whether information held s.1

Cases: Bromley v Information Commissioner and the Environment Agency (EA/2006/0072)

DECISION OF THE FIRST-TIER TRIBUNAL

The MOD should pay Mr Whyte costs in the sum of 484.50, payment to be made within 21 days of the date of this decision.

REASONS FOR DECISION

Background 1. This appeal concerned Mr Whytes request for data on the decay rate, in hours, of Gamma Radiation at ground zero after certain Atomic Bomb tests carried out by the UK authorities in the South Pacific in 1958. He requested the information because he feared that he may have been exposed to radiation while clearing debris from the site shortly after the tests had been completed. 2. In our preliminary decision, promulgated on 2 April 2012, we expressed dissatisfaction at the way in which the Ministry of Defence (MOD) had searched for the data. We included in our decision our criticisms of the evidence that had been filed by the MOD in support of its case. We expressed the view that, in the circumstances, Mr Whyte was entitled to expect a more rigorous approach to the document search than was apparent from the incomplete and imprecise evidence that had been placed before us. 3. In the light of those criticisms we directed that the MODs evidence be supplemented and clarified before we made a final determination. In the event the data was discovered in the course of the work the MOD carried out in preparing its further evidence and was sent to Mr Whyte and the Tribunal with a suitable apology and a statement to the effect that the MOD had taken careful note to avoid any similar future occurrences. 4. Mr Whyte has now made a claim for costs. The basis of that claim is rule 10 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the Rules). The relevant part of the Rule reads:

Appeal No. EA/2011/0178

(1) The Tribunal may make an order in respect of costs only (a)under section 29(4) of the 2007 Act (wasted costs); (b)if the Tribunal considers that a party has acted unreasonably in bringing, defending or conducting the proceedings (2) The Tribunal may make an order under paragraph (1) on an application or on its own initiative. (3) A person making an application for an order under this rule must (a) send or deliver a written application to the Tribunal and to the person against whom it is proposed that the order be made; and (b) send or deliver a schedule of the costs or expenses claimed with the application. (4) An application for an order under paragraph (1) may be made at any time during the proceedings but may not be made later than 14 days after the date on which the Tribunal sends to the person making the application the decision notice recording the decision which finally disposes of all issues in the proceedings. (5) The Tribunal may not make an order under paragraph (1) against a person (the paying person) without first (a) giving that person an opportunity to make representations; and (b) if the paying person is an individual, considering that persons financial means. (6) The amount of costs or expenses to be paid under an order under paragraph (1) may be ascertained by (a) summary assessment by the Tribunal; (b) agreement of a specified sum by the paying person and the person entitled to receive the costs or expenses (the receiving person); or

Appeal No. EA/2011/0178

(c) assessment of the whole or a specified part of the costs or expenses incurred by the receiving person, if not agreed. 5. Mr Whyte conducted his own appeal and so did not incur any lawyers fees. He therefore limited his claim to return travel from Kirkcaldy in Scotland to London of 117.50 and budget hotel costs of 550, giving a total of 667.50. He produced bank records to substantiate his claim. 6. We are satisfied that the form of the claim satisfied sub Rule 3 and that it was made within the time specified in sub Rule 4. We also feel that it is an appropriate case for us to assess the costs summarily, under sub Rule 6(a). 7. The MOD, quite properly, did not challenge Mr Whytes entitlement to costs, but invited us to reduce the total claimed because it covered three nights accommodation when, in the MODs view, one night would have been sufficient for a one day hearing. Mr Whyte responded to that challenge in an email explaining why he had stayed for three nights. His explanation included the very fair concession that, while there, he conducted other business, which concerned his relationship with the MOD but not, strictly, the Tribunal appeal. In the circumstances, and given the fact that Mr Whyte had to travel to and from his home in Scotland, we think it appropriate that the costs claim covers two nights accommodation and not three. This reduces the accommodation element to 367 and the total to 484.50. 8. We therefore direct the MOD to pay Mr Whyte costs in the sum of 484.50, payment to be made within 21 days of the date of this decision.

Chris Ryan Judge 17 July 2012

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