Medically discharged soldier loses appeal against claim for increased compensation for later trapped artery condition

About this case:

• Citation:
  [2024] EWCA Civ 1467
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lord Justice Holgate

Christopher McCalla, who served in the army from July 2003 to November 2004, contended that the Upper Tribunal should have set side its decision refusing permission to appeal. He based appeal on a medical report relevant to the question of causation he had obtained since the original refusal decision of the First-tier Tribunal’s War Pensions and Armed Forces Compensation Chamber.

The case was heard by Lord Justice Jackson, Lord Justice Males, and Lord Justice Holgate. Farhan Asghar appeared for the appellant and William Hays for the respondent.

Not available previously

During the appellant’s time in the army, he suffered from non-freezing cold injuries that resulted in his medical discharge. He was awarded compensation at a 50 per cent level of disability. In 2019, following ultrasound scans, a consultant surgeon diagnosed bilateral popliteal artery entrapment syndrome in his calves. The appellant made a claim in June 2022 under the War Pensions Scheme in respect of this and another condition.

On 2 March 2023, the respondent rejected the claim because there was no evidence that either condition had been caused or made worse by service in the army and decided to maintain the existing 50 per cent level of payments for the non- freezing cold injuries which had been accepted. That same month, the appellant was referred to a consultant vascular surgeon in London and remained in his care ever since.

At his appeal hearing before the FTT, the appellant did not instruct an expert in support of his case. The tribunal decided that the BPAES was caused by enlarged calf muscles, but that it was not related to his time in the army. The appeal was dismissed on 6 September 2023, and later that month the appellant had a consultation with Mr Flora, a consultant vascular and general surgeon, who prepared a report on his condition.

On 4 December 2023, a High Court judge refused the appellant’s application to set aside the UT’s decision refusing permission to appeal. He did so in reference to the Court of Appeal decision in Plescan v Secretary of State for Work and Pensions (2023), which held that Rule 43 of the Upper Tribunal’s Procedure Rules of 2008 were concerned solely with procedural irregularities in the proceedings before the UT.

Before the Court of Appeal, it was submitted that the 2008 Rules should be read to give the UT power to admit evidence, even if it was not available to a previous decision-maker. In particular, the word “document” should be construed as including a document which would satisfy the principles for the admission of fresh evidence on an appeal to the UT, even if it did not exist at the time of the FTT appeal.

Ex post facto error

Holgate LJ, in an opinion with which the other two judges agreed, said of the UT’s power to set aside previous decisions: “The power to set aside is exercisable only in limited circumstances. An applicant must show that there was a procedural error in the proceedings in the UT dealing with his application for permission to appeal and that it is in the interests of justice to set aside that decision. Rule 43 does not enable the applicant to challenge the UT’s decision to refuse permission to appeal or the reasons on which that decision was based. It is concerned with how the UT handled the application for permission to appeal.”

Noting that the decision in Plescan had been followed by the Inner House of the Court of Session earlier in 2024, he continued: “Rule 43(2)(b) can therefore only apply to a document which relates to the proceedings disposed of by the decision which the applicant asks to be set aside: in this case the application for permission to appeal to the UT. In addition, the applicant must show that there was a procedural irregularity in the proceedings in the Upper Tribunal because the document was not sent to the Upper Tribunal at an appropriate time.”

Assessing whether the appellant could demonstrate this, Holgate LJ said: “The appellant did not indicate to the UT that he was expecting to receive a medical report, nor did he ask the UT to defer consideration of his application until he was in a position to be able to submit a report, which the tribunal then disregarded. Instead, simply by relying upon the subsequent production of a document, the report by Mr Flora, the appellant seeks to create an ex post facto error in the earlier procedure leading to the refusal of his application for permission to appeal, where no procedural error had previously occurred.”

He concluded: “The only legal error now alleged by the appellant is a factual mistake by the FTT on the issue of causation. But in terms that is a challenge to the findings of the FTT. Similarly, the appellant’s case in the present appeal involves a challenge to the merits of the decision of the UT on 14 November 2023 to refuse permission to appeal from the FTT. Neither line of argument can be pursued in an application under rule 43 to set aside a refusal of permission to appeal.”

The appeal was accordingly dismissed.