Overriding objective and co-operationTimes 6 FebruaryTimes 6 MayTimes 26 Januarysub nom R v Secretary of State for the Home Department ex p Mehta [1975] 1 WLR 1087Times 2 May
The overriding objective
3.103The rules of procedure lay down an overriding objective. UTR r2 is illustrative:
1See also: GRC Rules r2; HESC Rules r2; IAC Rules r2; Lands Rules r2; PC Rules r2; SEC Rules r2; Tax Rules r2; WPAFC Rules r2. The CPR equivalent is r1.1–1.2.(1)The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.
(2)Dealing with a case fairly and justly includes–
(a)dealing with the case in ways which are proportionate to the import-ance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b)avoiding unnecessary formality and seeking flexibility in the proceedings;
(c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d)using any special expertise of the Upper Tribunal effectively; and
(e)avoiding delay, so far as compatible with proper consideration of the issues.
(3)The Upper Tribunal must seek to give effect to the overriding objective when it–
(a)exercises any power under these Rules; or
(b)interprets any rule or practice direction.
The function of the overriding objective
3.104Lord Woolf explained the reason and function of the overriding objective in his report on Access to Justice:
Every word in the rules should have a purpose, but every word cannot sensibly be given a minutely exact meaning. Civil procedure involves more judgment and knowledge than the rules can directly express. In this respect, rules of court are not like an instruction manual for operating a piece of machinery. Ultimately their purpose is to guide the court and the litigants towards the just resolution of the case. Although the rules cannot offer detailed directions for the technical steps to be taken, the effectiveness of those steps depends upon the spirit in which they are carried out. That in turns depends on an understanding of the fundamental purpose of the rules and of the underlying system of procedure.
2Access to Justice, Chapter 20, para 10.3.105Tribunals are judicial bodies and, as such, should deal with proceedings in a way that is fair and just. As Lord Donaldson MR said in
R v Leicester City Justices ex p Barrow,
3[1991] 2 QB 260. ‘Fairness … is fundamental to all court proceedings’
4[1991] 2 QB 260 at 285. and ‘Any unfairness … strikes at the roots of justice.’
5[1991] 2 QB 260 at 290. Accordingly, the overriding objective does not, and need not, stipulate the function of tribunal procedure. What it does is to identify the function of the rules with the essential nature of judicial procedure and provides for them to be interpreted and applied in a way that furthers that function. It does not necessarily dictate the outcome. What it does is to provide a framework for argument, analysis and decision-making.
A general principle of fairness
3.106The overriding objective recognises but does not establish fairness as an essential component of the judicial process. This is shown by the cases in which the courts use the same criteria when the overriding objective does not apply.
6Igwemma v Chief Constable of Greater Manchester Police [2002] QB 1012 at [34]. Judges even refer to the overriding objective in circumstances in which the rules of procedure are not engaged. Accordingly, the Court of Appeal has described as an ‘economic and efficient approach, in line with the overriding objective’ for a witness to give evidence on just one occasion.
7Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 at [69]. And the Employment Appeal Tribunal has treated the overriding objective as relevant when a tribunal is considering whether to change a decision after it was announced orally but before it was promulgated.
8CK Heating Ltd v Doro [2010] ICR 1449 at [10] and [14].Fairly and justly
3.107The rules do not distinguish between the concepts of fairly and justly. They may be used as a composite expression. A clue to a possible distinction is found in the case-law on unemployment benefit. The Commissioners decided that whether an employer had just cause to leave employment voluntarily involved a compromise between the rights of the employee and the interests of the community.
9R(U) 20/64 at [8]. Building on that, fairness focuses on the interests of the parties,
10The approach adopted in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 438. while justice takes account of wider consideration.
Interpreting and applying rules of procedure
3.108The tribunal must seek to give effect to the overriding objective whenever it interprets a rule or exercises a power under the rules. Exercising a power covers both (i) considering whether to exercise it and (ii) actually exercising it. The wording of rule 2(3)(a) may appear to apply only to (ii). However, that would significantly reduce the scope and, therefore, the effectiveness of the provision. This can be avoided by taking account of the overriding objective in interpreting itself so that it covers both (i) and (ii).
3.109The duty to give effect to the overriding objective is not absolute. It recognises that the language may not allow the rules to be interpreted or applied to achieve the objective.
11Vinos v Marks & Spencer plc [2001] 3 All ER 784 at [26]. Subject to that, it ensures that every application or interpretation is informed by the purpose of the rules.
12Totty v Snowden [2002] 1 WLR 1384 at [34].3.110The rules give examples of what is involved in dealing with a case fairly and justly. They reflect the duties on the Senior President under TCEA s2(3) and of the Tribunal Procedure Committee under TCEA s22(4). They are not exhaustive and depend on the individual circumstances of the case for their operation. Nevertheless, they guide the tribunal in understanding the essence of the tribunal’s procedure. Statements of the overriding objective may differ slightly in the factors they include. To that extent, the differences are not of practical significance, as the factors are not exhaustive. However, the overall tone of the statements can indicate significant differences. For example: the focus of CPR r1.1 is on expedition and efficiency, whereas the rules of procedure under TCEA focus more on access and participation, athough this does not mean that tribunals cannot insist in appropriate circumstances on the efficient conduct of litigation at a proportionate cost and on compliance with the rules.
13BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121 at [32].3.111One effect of the overriding objective is that it is possible for the rules to make more general provision than would otherwise be the case, leaving it to the balancing exercise under the overriding objective to adjust their application to particular circumstances.
3.112Full participation in the proceedings is an essential element of the overriding objective. This is similar to the requirement of equality of arms under article 6.
14See below at para 3.212 onwards. The inquisitorial and enabling approaches contribute to satisfying the provision.
15See chapter 1.3.113Full participation under rule 2(2)(c) may require that a witness participate by video link.
16Rowland v Bock [2002] 4 All ER 370 at [9]. But it does not require that each side be allowed the same number of expert witnesses.
17Kirkman v Euro Exide Corporation (CMP Batteries Ltd) (2007) Times 6 February.Interpreting practice directions
3.114The relevance of the overriding objective to practice directions is limited.
3.115First, tribunals must seek to give effect to the overriding objective in interpreting practice directions.
18UTR r2(3)(b). The duty of parties to co-operate generally is not a feature of CPR. But the overriding objective that must be given effect is that the purpose of the rules of procedure is to enable the tribunal to deal with cases fairly and justly. It does not provide an overriding objective for the practice directions themselves.
3.116Second, the overriding objective does not extend to the exercise of a power under a practice direction.
3.117Third, the duty to co-operate (see below) is tied in part to the overriding objective. To that extent, the duty in respect of practice directions is limited.
3.118These differences are a consequence of the limited scope of the rule-making authority given to the Tribunal Procedure Committee. Although it is responsible for making the rules of procedure (TCEA s22), it has no responsibility for practice directions, which can only be made by the Senior President of Tribunals or a Chamber President (TCEA s23).
TCEA, practice statements and substantive law
3.119There is no provision for an overriding objective in the interpretation or application of TCEA itself, practice statements or the substantive law that the tribunal has to apply.
The duty to co-operate
3.120The rules require the parties to co-operate with the tribunal and each other in furthering the overriding objective and generally. UTR r2(4) is illustrative:
19See also: GRC Rules r2(4); HESC Rules r2(4); IAC Rules r2(4); Lands Rules r2(4); PC Rules r3(4); SEC Rules r2(4); Tax Rules r2(4); WPAFC Rules r2(4). The CPR equivalent is r1.3.(4)Parties must–
(a)help the Upper Tribunal to further the overriding objective; and
(b)co-operate with the Upper Tribunal generally.
3.121For example: the parties must notify the tribunal when they have settled issues in order to save time spent in preparing a case or the need for an oral hearing.
20Red River UK Ltd v Skeikh (2009) Times 6 May.3.122Co-operation is a duty, not an exhortation. Failure to comply requires the tribunal to consider what action to take under UTR r7 and its equivalents. This is discussed below.
3.123Representatives act for the parties. Inevitably, they are constrained by the duties imposed on the parties. Accordingly, this duty applies to representatives as it does to the parties themselves.
21Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912 at [37]. The extent to which a party is held responsible for the failings of a representative is considered below.
3.124By co-operating with the tribunal, the parties must inevitably co-operate with each other. In this way, the furthering of the overriding objective becomes a collective enterprise. Parties and their representatives should not act opportunistically by seeking to take advantage of the failings of other parties.
22Denton v T H White Ltd [2014] 1 WLR 3926 at [43].3.125This changes the culture of proceedings. The parties are entitled to retain their separate stances on the substantive issues, but should work co-operatively on procedural matters. Directions issued by the tribunal may assist the parties in understanding what this requires in a particular case.
23RC v CMEC and WC [2009] UKUT 62 (AAC) at [58].3.126In Bache v Essex County Council, Mummery LJ explained some of what is involved in co-operation:
Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side’s evidence and in making submissions. The ruling of the tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling.
24[2000] ICR 313.Representatives
3.127Two issues arise in respect of representatives.
3.128First, what duties do they owe to the tribunal? This will be worked out in the context of rule 2(4) and its equivalents.
3.129Second, to what extent must a party take the consequences of the failings of a representative? This was discussed by the Court of Appeal in
BR (Iran) v Secretary of State for the Home Department.
25[2007] 1 WLR 2278 at [18].The other general issue is that, as the present cases all too graphically show, delay of whatever sort will often have to be laid at the door of legal advisers. In ordinary private litigation, both before and after the introduction of the Civil Procedure Rules, a party has attributed to him, and is responsible for, the action or inaction of his lawyers: see Training in Compliance Ltd v Dewse [2001] CP Rep 46, para 66, per Peter Gibson LJ, cited with approval by Arden LJ in FP(Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 at 80. But, as Arden LJ went on to urge, considerations in asylum cases are different. And that view was underlined, as a matter of ratio, by Sedley LJ at para 45 of the same case, where he adopted the observation of Lord Denning MR in R v Immigration Appeal Tribunal ex p Mehta [1975] 1 WLR 1087 that it is no consolation to tell a person that she can sue her solicitor for his mistake if the mistake is about to lead to her removal from this country; and, a fortiori, if the removal is to a condition of persecution.
3.130However, this does not meant that the courts do not take account of the fact that the fault was that of the party’s representative. In
Flaxman-Binns v Lincolnshire County Council,
26[2004] 1 WLR 2232. the Court of Appeal was concerned with an application to lift a stay on a stale claim. The Court said:
The fact that the delay was attributable to fault on the part of his solicitor rather than fault on the part of the plaintiff is a factor which weighs in the plaintiff’s favour …
27[2004] 1 WLR 2232 at [41].In
Royal Bank of Scotland v Craig,
28(1997) 94 (39) LS Gaz 39. the Court of Appeal held that the judge had been wrong to refuse to adjourn when a party had been left without representation as a result of mismanagement by his original counsel. In
Short v Birmingham City Council,
29[2005] HLR 6. Tugendhat J was concerned with a delay in appealing. He said that, although the major part of the delay was attributable to the claimant’s legal advisers, it was not intentional and had not prejudiced the administration of justice or the respondents.
30[2005] HLR 6 at [12]. In
Jurkowska v Hlmad Ltd,
31[2008] ICR 841. the Court of Appeal, despite having reservations, confirmed a judge’s decision to extend time by 33 minutes when a relevant document was not provided by a solicitor who had not realised the document existed. And in
Newcastle City Council v Marsden,32[2010] ICR 743 at [19]. the Employment Appeal Tribunal held that the normal requirement of finality in litigation was outweighed by three factors: (i) the tribunal had been misled; (ii) by the plain misconduct of a representative; (iii) without prejudice to the other party.
3.131This approach is in line with the approach taken in limitation of actions where the failings of a representative are not visited on the party
as a matter of law.33Corbin v Penfold Metallising Co Ltd (2000) Times 2 May. However, see below the discussion of the refusal to allow issues to be raised or arguments to be made that a representative failed to raise or make.
34At para 4.98 below.Human rights
3.132Usually an appropriate use of the overriding objective will avoid any potential violation of a party’s Convention rights under the Human Rights Act 1998.
35Lord Woolf MR in Daniels v Walker [2000] 1 WLR 1382 at 1386.3.133The rules of procedure are legislation. As such, the tribunal is subject to the duty under section 3(1) of the Human Rights Act that it must, so far as it is possible, read and give effect to them in a way that is compatible with Convention rights.
3.134A Convention right can, therefore, supplement the overriding objective when it cannot alone produce a compatible result. For example: in
Goode v Martin36[2002] 1 WLR 1828. the Court of Appeal used section 3(1) to allow it to read words into CPR that it could not otherwise have justified.
37[2002] 1 WLR 1828 at [41]–[42]. See also Toulson J in General Mediterranean Holdings SA v Patel [2000] 1 WLR 272 at 295–296.3.135However, as Lord Woolf MR explained in
Daniels v Walker,
38[2000] 1 WLR 1382. representatives must ‘take a responsible attitude as to when it is right to raise a Human Rights Act point’.
39[2000] 1 WLR 1382 at 1386.Previous authorities
3.136The authorities that were decided before the new procedural regime began are no longer necessarily decisive.
40Lord Woolf MR in Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 at 1932. But as Rimer LJ remarked in
Jurkowska v Hlmad Ltd:
41[2008] ICR 841 at [19].… dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular cases. But they at least provide the structure on the basis of which a just decision can be made…. Nothing less should be expected from a developed system of civil law.
3.137Accordingly, the existing authorities may remain relevant in two ways. First, the principles may remain valid under the new regime. For example: in
Hertfordshire Investments Ltd v Bubb,
42[2000] 1 WLR 1828. See also Flynn v Scouigall [2004] 1 WLR 3069 at [24]; Parsons v George [2006] 1 WLR 3264 at [41]. the Court of Appeal decided that the principles for the admission of fresh evidence continued to apply and in
Newcastle City Council v Marsden,43[2010] ICR 743 at [19]. the Employment Appeal Tribunal recognised finality of litigation as a principle that would be of particular relevance. Second, the authorities may indicate factors that are relevant in applying the new regime. For example: in
Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd (No 5),
44[2008] 1 WLR 2380. Lightman J set out old authorities on when an adjournment should be given on account of the illness of a witness, but said:
In my judgment however the exercise of the court’s discretion whether to grant an adjournment is governed, not by these authorities, but by the terms of CPR and in particular the overriding objective set out in CPR r1.1. No doubt considerations held critical in the authorities cited are relevant, but not decisive.
45[2008] 1 WLR 2380 at [18].