QMUL v the Information Commissioner + Matthees (PACE Trial) Part 1: Tribunal hearing and Open Justice

This post follows on from my previous short post QMUL’s upcoming appeal against the Information Commissioner’s decision on release of PACE trial data: 20 April 2016. For a full explanation to the background and history of this case, please see my more detailed post from November 2015 Queen Mary University of London to appeal Information Commissioner’s decision on disclosure of PACE Trial data. 

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Brief re-cap

In March 2014, Mr Matthees – the original requestor (OR) – sought some of the data from the controversial PACE trial, using the process set out in the English Freedom of Information Act (FOIA). This information is held by the relevant public authority, Queen Mary University of London (QMUL). QMUL refused to disclose the data.

In due course, the OR complained to the Information Commissioner (IC) who, in October 2015, ordered that the information be disclosed. QMUL appealed against the IC’s decision (download the Notice of Appeal from 002 231115 Notice of appeal); that appeal was heard by the First-Tier Tribunal on 20-22 April 2016 in central London. The OR asked to be joined as a party to the proceedings. He was not legally represented and did not attend the hearing but made written submissions.

[Note: the PACE trial, which was published in 2011, relates to certain treatments for the condition known as “chronic fatigue syndrome” (CFS). CFS is often conflated, unhelpfully and confusingly, with myalgic encephalomyelitis (ME) and referred to as CFS/ME or ME/CFS, to the detriment of both ME and CFS patients. This is the situation in many countries and has been for decades; it is the cause of significant confusion and distress to many patients worldwide. The results of the PACE trial appear to promote psychosocial treatments which many patients find either ineffective or actively harmful – hence their interest in accessing the data.]

The Tribunal 

The composition of the Tribunal was as follows:

• Brian Kennedy QC – legally-qualified chair of Tribunal
• Professor Darryl Stephenson – lay member
• Nigel Watson – lay member

QMUL was represented by specialist QC, Timothy Pitt-Payne, instructed by solicitors Mills & Reeve LLP. The IC was represented by junior barrister Rupert Paines, instructed by solicitor for the IC.

Unfortunately, the Tribunal is not a court of record so there is no official transcript or recording of the proceedings, other than the notes taken by the Tribunal members and members of the public/press. All court proceedings are governed by the principles of Open Justice.

Open Justice (pre-hearing)

On 17 April, I contacted the Tribunal Registrar and requested the documents for this case which were publicly available. This was refused (other than the IC’s decision notice which I already had – see above). I repeated my request; again, it was refused.

On 19 April, I contacted the President of the General Regulatory Chamber (GRC) who has oversight of the Tribunals. I explained that this response was unacceptable and requested a full review of my application. He responded promptly and decided that I should be sent some of the public documents, with a further review after the hearing was concluded (download the short decision notice from 032 200416 PL Decision).

On 25 April, I contacted the GRC President again, requesting the further review and asking for details of any departure from the usual principles of Open Justice during the course of the hearing. Once I have received a reply, I will do an update. I understand that the Tribunal is taking further written submissions until 29 April.

I have uploaded the remaining documents at the end of this post. However, there are others which I would expect to be made generally available as part of the hearing (subject to the redaction of any Closed Material). If nothing else is forthcoming, then I would expect reasons to be given as to why that is the case.

Open Justice (at the hearing) 

I was unable to attend the hearing so I won’t speculate on what happened there. Anecdotally, I understand that QMUL’s witnesses gave oral evidence (which may have elaborated and/or expanded on their original witness statements, as often happens) and there were submissions by counsel for QMUL and the IC, in both open and closed sessions.

Unless a reporting restriction order is imposed by the judge, the general principles of Open Justice in the UK allow for full reporting of the open sessions of the proceedings. This can extend to real-time reporting on social media via electronic devices if permission is granted by the judge. Any departure from these principles should be explained in full by the judge, with reasons given in open court.

It appears that social media was being monitored – both before and during the hearing – for evidence of ME-related activity. In the case of specific PACE-related activity, this monitoring had already become apparent, as in, for example, paragraphs 22-26 of this decision notice from March 2015. Such monitoring is now common practice in litigation generally.

Once the judgment is published (sometime within the next few weeks) it will be possible to analyse both the hearing and the case in more detail.

Appeals – a reminder 

Whatever the result of the hearing, any of the parties can appeal to the Upper Tribunal on a point of law only. Notice of Appeal should normally be served within 35 days of the date on which the judgment is sent to the parties.

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Disclosure

I have lived with the illness ME since 1981.

I am a Visiting Scholar at the Centre for Commercial Law Studies at QMUL. I have nothing whatsoever to do with the PACE trial other than as a patient for whom no medical treatment is available, largely as a result of the trial’s purported findings.

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OTHER PUBLIC DOCUMENTS RECEIVED FROM THE GRC PRESIDENT SO FAR (as downloads):

NB. If you are using documents from this blog elsewhere, please quote the source and credit my work. Thank you.

IC’s response to QMUL’s Notice of appeal – 004 120116 IC Response

Original requestor’s response – 010 090216 R2 Matthees_Main_Response

Official list of hearing attendees – Hearing Attendees