Sources of procedural provisionsTimes 26 JanuaryTimes 22 MayTimes 27 FebruaryTimes 14 Augustsub nom Tombstone Ltd v Raja and Healys [2009] 1 WLR 1143, (2009) Times 4 FebruaryCashmere, The (1890) 15 PD 121
Practice and procedure
3.35Practice and procedure are usually used interchangeably or as a composite expression. It is, therefore, usually unnecessary to distinguish between them. In this book, procedure is generally used.
3.36Practice may also be used in a more limited sense to refer to the way in which a tribunal is accustomed to operate in respect of matters that are not governed by any rule of law or procedure. For example: it may refer to the layout of and seating arrangements in the tribunal room, the order and manner of addressing the tribunal, and whether the decision is given on the day. It is used in this sense to describe practice directions that are not issued under statutory authority.
Sources
3.37The practice and procedure of the First-tier Tribunal and the Upper Tribunal are governed by TCEA, rules of procedure, other delegated legislation, practice directions, practice statements, directions and the tribunal’s control over its own procedure. There may also be powers and duties that are not expressed in the rules of procedure.
Rules of procedure
3.38Rules of procedure are essential for the conduct of judicial business.
1Collins MR in In the Matter of an Arbitration between Coles and Ravenshear [1907] 1 KB 1 at 4. A tribunal’s procedure is how it operates. The rules govern the commencement, conduct and disposal of proceedings. In
Harding v Wealands,
2[2005] 1 WLR 1539. Sir William Aldous said that the natural meaning of ‘procedure’ was:
… the mode or rules used to govern and regulate the conduct of the court’s proceedings.
3[2005] 1 WLR 1539 at [86]. For a discussion of the scope of procedure in the context of a drafting error, see Steele v Mooney [2005] 1 WLR 2819.3.39The purpose of rules of procedure was explained by Lord Woolf CJ in
R v Sekhon4[2003] 1 WLR 1655. as being:
… to provide a convenient and just machinery enabling the court to exercise its jurisdiction.
5[2003] 1 WLR 1655 at [21].In
The Bramble Bush: the classic lectures to law and law schools,
6Oxford University Press 2008. Karl Llewellyn said of the rules of procedure:
… convenience, efficiency and fairness are their aim…. they tend to degenerate into red tape.
7Oxford University Press 2008 at pp20–21.Nowadays, the overriding objective applies to prevent that degeneration.
8See below at para 3.103 onwards.3.40Rules of procedure differ from the substantive rules that the tribunal has to apply. They deal not with what the tribunal does, but with how it does it. As Lush LJ put it in
Poyser v Minors.9(1881) 7 QBD at 329.‘Practice’ in its larger sense
– the sense in which it was obviously used in that Act [the County Courts Act 1856], like ‘procedure’ which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product.
10(1881) 7 QBD at 333.The enabling power
3.41A tribunal’s rules of procedure may be contained in a statute or made under the authority delegated by an enabling power contained in a statute. Rules made under delegated authority must be made within the scope of that authority and are invalid if they are not. Tribunals have jurisdiction to decide whether their rules are authorised by statute.
11See chapter 2.3.42The enabling power must be interpreted in the light of its purpose. As counsel put it to the Court of Appeal in
FP (Iran) v Secretary of State for the Home Department,
12[2007] EWCA Civ 13; (2007) Times 26 January at [21]. an enabling power to regulate access to justice does not include a power to deny access. In that case, the court held that a rule was unlawful because it effectively denied a party the right to be heard.
3.43Some matters are outside the scope of an enabling power on procedure.
3.44
Fundamental rights. Rules governing fundamental rights in the administration of justice are not matters of procedure. For example: rules that remove the right to trial by jury
13Safeway Stores plc v Tate [2001] QB 1120. or the confidentiality between solicitor and client on which legal professional privilege is based
14General Mediterranean Holdings SA v Patel [2000] 1 WLR 272. are not authorised procedural powers.
3.45
Jurisdiction. A power to make rules of procedure does not include the power to affect jurisdiction.
15Diplock LJ in Garthwaite v Garthwaite [1964] P 356 at 395. Accordingly, as the right of appeal is a matter of jurisdiction, a procedural enabling power cannot take away a right of appeal
16Lord Reading CJ and Shearman and Sankey JJ in The King v Tribunal of Appeal under the Housing Act 1919 [1920] 3 KB 334 at 342, 343 and 346. or create a new one.
17Lord Westbury LC in Attorney-General v Sillem (1864) 11 ER 1200 at 1208. Nor can it authorise an extension of a tribunal’s jurisdiction.
18Diplock LJ in Garthwaite v Garthwaite [1964] P 356 at 395.3.46
Evidence. The rules of evidence are not part of the rules of procedure, although the rules relating to disclosure of evidence, the attendance of witnesses and the manner of giving evidence are.
19Adrian Zuckerman, Civil Procedure, 2nd edn, Thomson Sweet & Maxwell, 2006, para 1.45. This is subject to provision to the contrary as in TCEA Sch 5 para 10(2), which allows rules of procedure to modify any rules of evidence provided for elsewhere.
3.47As the scope of an enabling power is a matter of interpretation, these limitations are subject to provision to the contrary. In the case of interference with a fundamental right, such a provision would have to be sufficiently clear to be effective.
Rules of procedure under TCEA
3.48Section 22 of TCEA provides for rules governing the practice and procedure of the First-tier Tribunal and the Upper Tribunal.
3.49These are made by the Tribunal Procedure Committee (s22(2)). They are made under section 22(3) and Schedule 5 with a view to securing the objectives listed in section 22(4):
(a)that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done;
(b)that the tribunal system is accessible and fair;
(c)that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently;
(d)that the rules are both simple and simply expressed;
20The aim of simplicity in both content and expression is also a requirement of CPR under section 2(7) of the Civil Procedure Act 1997. and
(e)that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
3.50The membership of the Tribunal Procedure Committee is governed by Part 2 of Schedule 5 (s22(3)).
3.51As the rules of procedure are delegated legislation, tribunals cannot vary them by their decisions,
21Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [27(i)]. except to the extent that the rules themselves allow for this.
3.52The procedure set out in the rules is less formal and more flexible than that of the traditional courts and this should be taken into account when interpreting them.
22Eclipse Film Partners No 35 LLP v Revenue and Customs Commissioners [2016] 1 WLR 1939 at [23].3.53Tribunals should rely on the rules of procedure and should not import provisions of CPR into their proceedings.
23R (Howes) v Child Support Commissioners [2008] 1 FLR 1691 at [39]; CB v Suffolk County Council [2010] UKUT 413 (AAC) at [22]; Leeds City Council v Commissioners for Her Majesty’s Revenue and Customs [2014] UKUT 0350 (AAC) at [18].The nature of the rules
3.54The rules will take one of four forms: a duty (such as the duty to give reasons), a power (such as the power to withdraw), a discretion (such as the discretion whether to hold a hearing), or a default provision (such as most time limits, which are subject to the power to extend time).
Other delegated legislation
3.55Not all procedural provisions are within the powers of the Tribunal Procedure Committee. They may also be made under Regulations or Orders.
Retrospective changes to the rules of procedure
3.56If the change is to the interpretation of the rule rather than to the rule itself, the normal approach to case-law applies and the rule is treated as if it had always had that meaning. So, the new interpretation applies in all cases.
3.57If the rule is amended or a new rule is introduced, two questions arise. First, is there an express or clear provision governing its application to existing proceedings? Ideally, there should be a savings or transitional provision. Often there is not and the second question arises: what does fairness require?
24Lord Mustill in L’Office Cherifien des Phosphates v Yamashita – Shinnihon Steamship Co Ltd [1994] 1 AC 486 at 525. This is the modern test that has replaced the former test of whether the provision was procedural (and retrospective) or substantive (and not retrospective). The usual answer is that it is fair to apply changes to procedural provisions in ongoing proceedings.
25As in Attorney-General v Vernazza [1960] AC 965. In this respect, they resemble rules of policy such as the immigration rules rather than rules of substantive law: Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230.Powers and duties outside the express rules
3.58Modern rules of procedure cover many eventualities that are likely to occur. However, it is impossible to make specific provision for every thing that may happen. Some matters are within the tribunal’s power to regulate its own procedure. For example: the sequence of submissions at an oral hearing are within the control of the tribunal. This aside and in the absence of such a provision, it may be impossible to interpret the rules to include a particular power. In
Khan v Heywood and Middleton Primary Care Trust,
26[2007] ICR 24. the Court of Appeal held that there was no power for an employment tribunal to reinstate proceedings that had been withdrawn. Brooke LJ explained:
… the ET [employment tribunal] is a creature of statute and its procedure is specifically governed by the 2004 Regulations. It is much used by litigants in person. Its procedures are governed by what is meant to be an informal, but clearly understood code. Thus, while at first blush, and particularly given the tight time-limits for instituting proceedings, it might seem sensible to have a procedure by means of which a litigant who had mistakenly withdrawn a claim should be allowed to revive it, I am satisfied that, for such a procedure to exist, it would need to be set out expressly in the rules. I therefore regard the absence of any such express provision in the rules as important.
27[2007] ICR 24 at [70].This certainly applies if the rules make adequate provision.
28Lynch v East Dunbartonshire Council [2010] ICR 1094 at [48] (further claims in respect of the same matter could be adjourned or struck out). 3.59However, a tribunal may have additional powers or duties. The possibility that a tribunal may have procedural powers that are not expressly set out may be recognised in legislation. So TCEA Sch 5 para 15 provides that any rule allowing a decision to be corrected or set aside is additional to any such power that is exercisable apart from the rules.
3.60There are a variety of techniques by which a tribunal may acquire additional powers and duties. They are not mutually exclusive.
Supplementing the legislation
3.61One approach is to recognise openly that the terms of the legislation are being supplemented. This is not common. But in
Wiseman v Borneman,
29[1971] AC 297. Lord Reid was open in acknowledging that the courts supplemented procedural legislation, albeit cautiously and consistently with the legislative scheme, as justice required. He said:
For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.
30[1971] AC 297 at 308.3.62And in
Local Government Board v Arlidge,
31[1915] AC 120. Lord Haldane LC said:
… what that procedure is to be in detail must depend on the nature of the tribunal…. When … Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow a procedure which is its own, and is necessary if it is to be capable of doing its work efficiently.
32[1915] AC 120 at 132.3.63The decision of the Divisional Court of Queen’s Bench in
R v Kensington and Chelsea Rent Tribunal ex p Macfarlane33[1974] 1 WLR 1486. may be an example. A party to the proceedings alleged that he had not received a notice from the tribunal that it would inspect his premises. When the tribunal could not gain entry, it decided not to entertain the case. Its rules contained no power to set aside the decision in these circumstances.
34A party must have notice of a hearing in order for the hearing to be fair. There is authority that there is no breach of natural justice if the tribunal itself is not at fault. If notice is sent but not received, the tribunal is not at fault. See below at para 3.153 onwards. The tribunal, though, may have a power to set aside its decision in these circumstances. However, this is only a power and does not amount to a breach of natural justice or render the tribunal’s decision wrong in law if it declines to exercise the power. However, the Court held that it had power to re-open the case. Lord Widgery CJ said:
… the disappointed party … can go back to the tribunal, explain why he did not attend, and the tribunal will then have the jurisdiction if it thinks fit to reopen the matter and to reconsider its decision in the light of representations made by the absent party.
35[1974] 1 WLR 1486 at 1493.3.64As that passage makes clear, the tribunal has a power to re-open the case, but not a duty. That power must not be exercised too freely but, if there is an application, the court decided that the tribunal was under a duty to consider it. Lord Widgery said:
It was the tribunal’s duty on the receipt of that application from the applicant to consider whether they would allow the case to be re-opened, and I would stress that tribunals must be very firm in the view which they take about this kind of case. There must be no question of absent parties taking no action over a period of months, and then coming back to the tribunal with some story of having been ill or being in South America when the hearing occurred. Tribunals must be satisfied before they reopen a case that there is a good argument on the merits for giving the absent party a chance to be heard, that he has got a real and reasonable excuse, that he had to be given a further chance and that, in considering whether he ought to be given a further chance to be heard, due regard must be had to the other party to the proceedings and to any third parties who may have acted upon the tribunal’s decision on the assumption that it was right and to be sustained.
36[1974] 1 WLR 1486 at 1493.This case was one in which a party had not received notice, was thereby disadvantaged and applied to the tribunal to reopen his case. Although Lord Widgery’s reasoning is not limited to these circumstances, the decision has not been developed, probably because tribunals are likely to have legislative power dealing with this and other possibilities. As a result, the scope of the power and the need for an application are both open issues.
Background rules
3.65Another analysis is that the rules of procedure exist against a background of general rules that apply by operation of law. These general rules include the principles of natural justice and article 6.
37For a fuller discussion of the relationship between these principles and the rules of procedure, see below at para 3.172 onwards. The rules of procedure replace those general rules in so far as they apply. But in so far as the rules of procedure are silent, the general rules continue to apply.
3.66Sir Jocelyn Simon P espoused this approach in
Qureshi v Qureshi38[1972] Fam 173. In that case, no rules had been made for an arbitration council to sit abroad. However, Sir Jocelyn said:
Where a legislative authority by an enactment setting up a tribunal or other body envisages rules to be made governing the procedure of such tribunal or body, and no such rules are made, the tribunal or body is not necessarily thereby disabled from performing its function. In such case the tribunal or body acts effectively provided it acts in accordance with natural justice and to promote the objective with which it was set up, and possibly by analogy with the procedural rules prescribed for comparable tribunals or bodies.
39[1972] Fam 173 at 196.Inherent powers
3.67Courts have inherent powers.
40These powers are discussed in detail by I.H. Jacob, ‘The Inherent Jurisdiction of the Court’ [1970] Current Legal Problems 23 and M.S. Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’ (1997) 113 LQR 120. In
Connelly v Director of Public Prosecutions,
41[1964] AC 1254. Lord Morris justified and explained the scope of these powers by reference to their purpose:
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.
42[1964] AC 1254 at 1301. See also Tuckey LJ in R (Roberts) v Parole Board [2005] QB 410 at [32], linking the power to use a specially appointed advocate to the Board’s status as a court for the purpose of Convention rights. If this is correct, all tribunals that are covered by article 6(1) have the inherent powers of a court.3.68In
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd,
43[1981] AC 909. Lord Diplock linked this with the court’s power to regulate its own procedure:
The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice….
The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an ‘inherent power’ the exercise of which is within the ‘inherent jurisdiction’ of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.
44[1981] AC 909 at 977.3.69In
Chessington World of Adventures Ltd v Reed,
45[1998] IRLR 56. Morison J said that employment tribunals had no inherent jurisdiction.
46[1998] IRLR 56 at 62. In the context, he must have intended to refer to inherent procedural powers. However, this comment was not essential to the decision and is not soundly based in authority, because the case cited in support deals with substantive (not procedural) jurisdiction.
47See the discussion in chapter 2.3.70In
R v Assessment Committee of Saint Mary Abbotts,
Kensington,
48[1891] 1 QB 378. the Court of Appeal decided that the committee did not have any power to regulate its own procedure because it was not ‘a court or a tribunal exercising judicial functions in the legal acceptation of the terms’.
49[1891] 1 QB 378 per Lord Esher MR at 382. However, the court recognised that the committee ‘would have some discretion, and might refuse to hear a manifestly improper person as agent’ of an objector.
50[1891] 1 QB 378 per Lord Esher MR at 383. The implication is that if a tribunal does exercise judicial functions, it has power over its own procedure.
3.71The courts have recognised that tribunals have some specific inherent powers. In
Akewushola v Secretary of State for the Home Department,
51[2000] 1 WLR 2295. the Court of Appeal recognised that they have the power to correct accidental mistakes in their decisions.
52[2000] 1 WLR 2295 per Sedley LJ at 2301. And in
R v Industrial Tribunal ex p Cotswold Collotype Co Ltd,
53[1979] ICR 190. the Divisional Court of Queen’s Bench decided that a tribunal had inherent power to direct a rehearing before a differently constituted tribunal if the members were unable to agree on a decision.
54Lord Widgery CJ at 193, relying on Fussell v Somerset Justices Licensing Committee [1947] KB 276.3.72A Commissioner relied on tribunals’ power to control their own procedure as a basis for inherent powers to set aside their own decisions on procedural grounds.
55R(U) 3/89 at [4] and [5] of the Appendix to the decision. However, in
Akewushola v Secretary of State for the Home Department,
56[2000] 1 WLR 2295. the Court of Appeal decided that tribunals did not have power to rescind or review their decisions. Sedley LJ said:
… I do not think that, slips apart, a statutory tribunal
– in contrast to a superior court
– ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court’s jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides.
57[2000] 1 WLR 2295 at 2301.Sedley LJ linked his reasoning to the statutory nature of a tribunal. However, this is not decisive. As Morison J pointed out in the Employment Appeal Tribunal in
Chessington World of Adventures Ltd v Reed,
58[1998] IRLR 56. the Court of Appeal is statutory, but it has inherent jurisdiction.
59[1998] IRLR 56 at 61. His lordship did not analyse the origin of an inherent power, but appeared to relate it to the judicial oath of a High Court judge.
60[1998] IRLR 56 at 61.3.73Whatever the correct jurisprudential basis, a tribunal has no power of review even if the practice of review has been accepted by the public body affected.
61R (Secretary of State for Defence) v President of the Pensions Appeal Tribunal (2004) Times 27 February.3.74In
O’Keefe v Southampton City Council,
62[1988] ICR 419 at 422. the Employment Appeal Tribunal decided that tribunals have no inherent power to strike out.
3.75And in
R (Harpers Leisure International Ltd) v Guildford Borough Council,
63(2009) Times 14 August. Charles J decided that tribunals have no inherent power to stay for an abuse of process.
3.76The extent to which tribunals have other inherent powers is undecided. However, TCEA s25 gives the Upper Tribunal the same powers as the High Court in respect of all other matters incidental to the Upper Tribunal’s functions.
64The Upper Tribunal considered whether this included a power to award costs in Okondu and Abdussalam v Secretary of State for the Home Department [2014] UKUT 0377 (IAC) at [15]-[17]. This may include the Court’s inherent powers.
3.77In
MR v CMEC and DM,
65[2009] UKUT 283 (AAC) at [11]. a Scottish panel of the Upper Tribunal decided that it had the inherent power of the Court of Session ‘to compel parties to a cause to produce documents which may have a bearing on the issue between them’. It also held that it had power to commit for contempt for failure to comply with a direction.
66[2009] UKUT 283 (AAC) at [14]–[15]. This is also a feature of a supreme court of record.
67See chapter 1.3.78The relationship between rules of procedure and inherent powers was analysed by the Court of Appeal in
Raja v Van Hoogstraten (No 9).
68[2009] 1 WLR 1143.The position pre-CPR, therefore, was that the inherent powers of the court could not be invoked to do something which was inconsistent with a rule. Thus, if a rule gave a wide discretion to the court to decide whether or not to make a particular order, the court could not exercise its inherent powers to make such an order ex debito justitiae as if it had no discretion, or a discretion which could only be exercised one way in accordance with the rules.
The same position has obtained since the introduction of the CPR. The CPR are a ‘new procedural code with the overriding objective of enabling the court to deal with cases justly’ (r1.1(1)). There is no doubt that the court continues to have the inherent jurisdiction to regulate the conduct of civil litigation: see section 19(2)(b) of the Supreme Court Act 1981. The existence of the inherent jurisdiction is also implicitly acknowledged by CPR 3.1(1) which provides that the list of powers in that rule ‘is in addition to… any powers it may otherwise have’.
In our judgment, therefore, where the subject-matter of an application is governed by rules in the CPR, it should be dealt with by the court in accordance with the rules and not by exercising the court’s inherent jurisdiction. There is no point in exercising the court’s inherent jurisdiction if that would involve adopting the same approach and would lead to the same result as an application of the rules. And it would be wrong to exercise the inherent jurisdiction of the court to adopt a different approach and arrive at a different outcome from that which would result from an application of the rules.
69[2009] 1 WLR 1143 at [76]–[78].Implied powers
3.79If a power is not inherent, it may be implied. Lord Selborne recognised this possibility in
Spackman v Plumstead Board of Works:
70(1885) 10 App Cas 229.No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated.
71(1885) 10 App Cas 229 at 240.3.80So did Lord Bridge in
Lloyd v Mahon:
72[1987] AC 625.… the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
73[1987] AC 625 at 703.3.81There are some circumstances in which it is essential to imply a provision to fill an omission in the rules of procedure. An obvious example is a time limit. So in
Qureshi v Qureshi,
74[1972] Fam 173. Sir Jocelyn Simon P said that in the absence of an express provision a reasonable time must be allowed.
75[1972] Fam 173 at 196. Another example is the use of an interpreter, identified by Sedley LJ in
Akewushola v Secretary of State for the Home Department.
76[2000] 1 WLR 2295 at 2301.3.82Any implied power must be consistent with the statutory enabling provisions. It is not possible to imply a power that could not have been conferred expressly because of the lack of a suitable enabling provision. Any implied power must also be consistent with the provisions of the rules of procedure. As these are increasingly detailed in their provision and wide in their coverage of issues, it may be difficult to justify implying provisions that may have been deliberately excluded.
The relationship between inherent and implied powers
3.83Finding an inherent power and implying a power are different legal techniques. In
Golder v United Kingdom,
77(1975) 1 EHRR 524. the European Court of Human Rights employed both techniques. The case concerned article 6. The Court decided that the right of access to a court was inherent in this,
78(1975) 1 EHRR 524 at [36]. but that the language allowed limitations to be implied.
79(1975) 1 EHRR 524 at [38]. This suggests two distinctions. One is that a power is inherent if it is of the nature of, or a precondition for the existence of, the right of access, whereas a power is implied as a consequence of that right. The other is that finding an inherent power concentrates on identifying the nature of and ensuring the effectiveness of the right, whereas implying a power concentrates on, or is limited by, the possibilities of the language in which the right is expressed.
3.84This analysis is consistent with
Stefan v General Medical Council,
80[1999] 1 WLR 1293. in which the Privy Council referred to implication as an issue of language.
81[1999] 1 WLR 1293 at 1297. It is also consistent with
Chessington World of Adventures Ltd v Reed.
82[1998] IRLR 56. An implication would not extend the scope of express provisions in the rules of procedure, but Morison J there left open the possibility that in exceptional circumstances an inherent power might be wider than a carefully defined legislative provision:
If, as I believe, Parliament has weighed the circumstances in which it would be appropriate to make a gagging order, it would be difficult to justify resorting to an inherent jurisdiction to extend those circumstances…. Simply because I cannot at the moment rule out the possibility that there might be some special case which might call for an application of the court’s inherent jurisdiction, I am not prepared to hold that it would never be appropriate for the court to make a gagging order beyond those circumstances …
83[1998] IRLR 56 at 61–62.3.85However, in
Akewushola v Secretary of State for the Home Department,
84[2000] 1 WLR 2295. Sedley LJ emphasised that the breadth of the coverage of the rules of procedure was an impediment to finding an inherent power.
85[2000] 1 WLR 2295 at 2301.Practice directions
3.86Courts have inherent jurisdiction to make practice directions, provided they are consistent with any rules of court or relevant statutory provisions.
86Langley v North West Water Authority [1991] 1 WLR 697 at 709; Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [10]. A local practice was held to be in conflict with a rule of court in The Cashmere (1890) 15 PD 121 at 123.3.87Practice directions that are not issued pursuant to statute are not strictly law.
87Hume v Somerton (1890) 25 QBD 239 at 243.3.88TCEA s23 provides for practice directions governing the practice and procedure of the First-tier Tribunal and the Upper Tribunal. The potential scope of a practice direction is the same as that of rules of procedure under section 22. As they are statutory, they may be challenged on the ground that their content was not authorised by the enabling power.
88As in R (Ewing) v Department for Constitutional Affairs [2006] 2 All ER 993.3.89A practice direction may be given by the Senior President or by a Chamber President (s23(1) and (2)). Section 107(3) and (3A) of the Nationality, Immigration and Asylum Act 2002 provide that a practice direction may require a decision to be treated as authoritative in the immigration and asylum jurisdiction.
3.90If the direction is given by the Senior President, it requires the approval of the Lord Chancellor (s23(4)). If it is given by a Chamber President, it requires the approval of both the Senior President and the Lord Chancellor (s23(5)).
3.91For some directions, the Lord Chancellor is not required to give approval and does not have to be consulted. This applies for directions on the application or interpretation of the law or the making of decisions by members of the First-tier Tribunal or Upper Tribunal (s23(6)).
89There is equivalent provision in s5(5) of the Civil Procedure Act 1997 as substituted by para 6 of Sch 2 to the Constitutional Reform Act 2005.3.92For other directions, the Lord Chancellor is not required to give approval but must be consulted. This applies for directions setting the criteria by which members of the First-tier Tribunal and Upper Tribunal may be chosen to decide particular categories of matter (s23(7)).
3.93Rules of procedure may refer to practice directions (paragraph 17 of Schedule 5).
3.94As practice directions may only be made by specified persons, tribunals cannot vary them by their decisions,
90Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [27]. except to the extent that the practice directions themselves allow for this. For this purpose, a practice direction is something issued as a practice direction and does not include a decision that happens to contain guidance or directions.
91[2009] 3 All ER 340 at [40]–[44].3.95In
Godwin v Swindon Borough Council92[2002] 1 WLR 997 at [11]. May LJ said that under CPR practice directions are subordinate to the rules and ‘at best a weak aid to the interpretation of the rules themselves’. There is nothing in the Civil Procedure Act 1997 that so provides.
93May LJ referred to para 6 of Sch 1, which is the equivalent of para 17 of Schedule 5 to TCEA. However, that does not so provide. Para 6 was analysed by Sullivan J in R (Ewing) v Department for Constitutional Affairs [2006] 2 All ER 993 at [13] as recognising and referring to the court’s inherent power. That reasoning need not, and perhaps cannot, apply under TCEA, as section 23 contains an express power to make practice directions. However, the conclusion may be justified under TCEA on the ground that rules and practice directions are made by different bodies and, perhaps, by the fact that the rules are made by a broader-based body after wider consultation.
Practice statements
3.96There is no express statutory authority for practice statements. The power to issue these is inherent in the nature and function of the office as Senior President.
3.97The Senior President has mainly used these statements to exercise the powers to delegate functions to staff and to prescribe the composition of tribunals. It may be that a failure to comply with these statements is an error of law. However, the Senior President has also issued a statement on records of proceedings. The status of a statement such as this has yet to be established.
3.98The title suggests that a practice statement is descriptive of the practice that is in fact followed rather than prescriptive of what it should be. However, that is not how it is used under TCEA.
Directions
3.99Under the rules of procedure, tribunals have power to regulate their own procedure
94See: UTR r5(1); GRC Rules r5(1); HESC Rules r5(1); IAC Rules r4(1); Lands Rules r5(1); PC Rules r6(1); SEC Rules r5(1); Tax Rules r5(1); WPAFC Rules r5(1). and to give directions in relation to the conduct or disposal of proceedings.
95See: UTR r5(2); GRC Rules r5(2); HESC Rules r5(2); IAC Rules r4(2); Lands Rules r5(2); PC Rules r6(2); SEC Rules r5(2); Tax Rules r5(2); WPAFC Rules r5(2). There is specific provision for the procedure relating to directions.
96See: UTR r6; GRC Rules r6; HESC Rules r6; IAC Rules r5; Lands Rules r6; PC Rules r7; SEC Rules r6; Tax Rules r6; WPAFC Rules r6.3.100The exercise of these case management powers in a particular case does not involve the making of a practice direction, which could only be made by the persons authorised under the legislation.
97Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [24]. In principle, the position is the same for case management directions issued in standard form for a particular class of case.
3.101If there is a gap in the rules of procedure or practice directions, tribunals have power to fill gaps through their regulation of their own procedure, at least pending the making of rules or the giving of a practice direction.
98Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [41].Guidance
3.102It is permissible for tribunals to issue guidance that is confined to explaining how tribunals interpret and apply their rules of procedure and practice directions.
99Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340 at [36].