Case managementTimes 1 AprilTimes 31 JanuaryTimes 25 AugustRe [2009] 2 FLR 83Re [2010] 2 FLR 46Re (1999) Times 9 NovemberRe [1963] Ch 502Times 29 OctoberTimes 1 AprilRe [1996] 1 WLR 145
7.4Case management is the process by which the tribunal controls the proceedings from the time when they are begun to the final disposal of the case.
1For an instance of the Administrative Court commending a case management approach to a tribunal, see R (Camacho) v Law Society [2004] 4 All ER 126 in the extracts in the Appendix, which are not included in the Weekly Law Report. For the rebuff from the tribunal, see [7] of the main judgment. That control must be exercised in the context of, and to further, the overriding objective
2See chapter 3 and the right to fairness in the proceedings.
3Given by natural justice and article 6. See chapter 3. Its purpose is to ensure that the proceedings are conducted in a way that is most effective in resolving the issues between the parties and most efficient in the use of the tribunal’s time and resources.
4Ul-Haq v Shah [2010] 1 WLR 616 at [39]. Its aim is to ensure that the case is decided in the shortest possible time given the issues raised and the resources available.
The nature of case management in practice
7.5Case management involves five related features. First, it is proactive. It is not limited to being reactive to the applications of the parties. Second, it is not dictated by the wishes of any particular party or of all the parties. Third, it is not limited to a consideration of the particular case. It takes account of the functioning of the tribunal system as a whole and, through that system, of the impact that the management of one case has on others. Fourth, it applies throughout the whole of the proceedings to control progress. Fifth, it provides individualised and personalised control for particular cases or classes of case, not just general control through standard rules and procedures.
7.6The ways in which these features manifest themselves vary according to the nature of the cases that come before the tribunal. In some tribunals, the routine cases may be sufficiently catered for by the rules of procedure so that little or no management is required. For other cases and in other tribunals, more detailed management may be needed. These are some of the approaches and practices that may be found in the case management procedures of a tribunal system:
•The tribunal controls the progress of the case. This may involve setting a timetable for the orderly progress of the case and for bringing the proceedings to a conclusion as quickly and efficiently as possible.
•The tribunal has a role in, or control of, the identification of the issues that will be considered. If permission to initiate proceedings is needed and the tribunal’s jurisdiction is limited to issues of law, it may be appropriate to front load the judicial effort so that the issues are identified at the beginning of the proceedings.
•The tribunal gives directions that help the parties to understand the nature of the proceedings and what is required of them.
•The tribunal decides whether an oral hearing is required for particular issues or at all.
•Once a case is ready, it is decided as soon as resources allow.
•Time is allowed for preparing the case for hearing that is appropriate given the issues raised and the level of decision-making.
•No step is taken, by the tribunal or the parties, unless it adds value to the decision-making process.
•The tribunal may control the time spent by the parties on presenting evidence.
5R v Jisl and Tenkin (2004) Times 1 April. •The tribunal informs the parties about, and facilitates the use of, alternative methods of resolving their dispute.
6See: UTR r3; GRC Rules r3; HESC Rules r3; Lands Rules r3; PC Rules r4; SEC Rules r3; Tax Rules r3; WPAFC Rules r3. There is no equivalent in the IAC Rules. Directions
7.7It would be too cumbersome to make specific provision governing every aspect of a tribunal’s procedure or to cover every eventuality that might occur in individual cases. By express provision or necessary implication, there must be a residual power for a tribunal to control its procedure and the progress of proceedings.
7.8This power must be exercised within the constraints imposed by law on the tribunal’s freedom of action. It cannot, for example, dispense of its own initiative with the duty to provide reasons. However, it may displace default provisions and exercise the powers and discretions conferred on it.
7.9Under TCEA, the rules of procedure: (i) stipulate that the tribunal has power to regulate its own procedure; (ii) supplement this by an express general power to give directions in relation to the conduct or disposal of proceedings; (iii) give a non-exhaustive list of the possible subject matter for a direction; and (iv) make specific provision for some of those matters.
7.10Directions issued by the tribunal may assist the parties in understanding the nature of the proceedings and what is required of them in their case.
7RC v CMEC and WC [2009] UKUT 62 (AAC) at [58].General powers
7.11UTR r5 is illustrative of the general powers:
8See also: GRC Rules r5; HESC Rules r5; IAC Rules r4; Lands Rules r5; PC Rules r6; SEC Rules r5; Tax Rules r5; WPAFC Rules r5. The CPR equivalent is r3.1.5 Case management powers
(1)Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.
(2)The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3)In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may–
(a)extend or shorten the time for complying with any rule, practice direction or direction;
(b)consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;
(c)permit or require a party to amend a document;
(d)permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;
(e)deal with an issue in the proceedings as a preliminary issue;
(f)hold a hearing to consider any matter, including a case management issue;
(g)decide the form of any hearing;
(h)adjourn or postpone a hearing;
(i)require a party to produce a bundle for a hearing;
(j)stay (or, in Scotland, sist) proceedings;
(k)transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and–
(i)because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or(ii)the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;
(l)suspend the effect of its own decision pending an appeal or review of that decision;
(m)in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal;
(n)require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.
7.12Rule 5(1) codifies the power that all courts and tribunals have, subject only to any limitation imposed by legislation.
9Lord Woolf in R (Roberts) v Parole Board [2005] 2 AC 738 at [44]. The source of this power is not clear. It is sometimes referred to as an inherent power. However, Lord Woolf denied this, saying that it existed because it was a characteristic of courts (at [44]) and tribunals and that it was an implied power (at [66]). That power is necessary, because legislation cannot cover every possibility.
10[2005] 2 AC 738 at [48]. It allows a tribunal to adopt appropriate practice or procedures to fill the gaps in the rules of procedure.
11For example: by allowing a party to be accompanied by an assistant in R v Leicester City Justices ex p Barrow [1991] 2 QB 260. The tribunal’s procedure does not end when it begins to consider its decision.
12Virdi v Law Society [2010] 1 WLR 2840 at [33].7.13The tribunal only needs power (express or implied) to make legally binding decisions or to give directions that have may legal consequences.
13Virdi v Law Society [2010] 1 WLR 2840 at [28]. It does not need statutory authority for actions that do not have direct legal consequences, such as consulting a suitably qualified clerk.
14Virdi v Law Society [2010] 1 WLR 2840 at [28]. The tribunal may do such things, provided that the proceedings are fair.
15Virdi v Law Society [2010] 1 WLR 2840 at [28].7.14The power must be exercised to further its purpose. A case management power deals with the order and conduct of the proceedings at a hearing.
16Care First Partnership Ltd v Roffey [2001] ICR 87. As it applies to a hearing, its purpose is to regulate the course of the hearing in order to ensure that it is conducted efficiently and fairly. As a discretionary power, it must be exercised judicially.
17Aberdeen Steak Houses Group plc v Ibrahim [1988] ICR 550. It must be exercised in a way that allows all those entitled to be present to fulfil their appropriate roles, whether as members of the tribunal, parties, representatives, witnesses or assessors. But those persons must co-operate with the tribunal: see the discussion of UTR r2(4) and its equivalents in chapter 3.
7.15This power is only subject to TCEA and other enactments. The rules of procedure are enactments, but practice directions and practice statements are not. Nor are directions given under the rules, such as UTR r5(2) and its equivalents.
7.16The power cannot be used to subvert the purpose and provision of rules dealing with specific issues. It cannot be used to impose a lower standard for a particular purpose than that expressly set by a different rule. For example: it cannot be used to reduce the standard required for a case to be struck out.
18Care First Partnership Ltd v Roffey [2001] ICR 87. It cannot be used to extend the scope of other rules. For example: it does not permit an award of costs,
19Eclipse Film Partners No 35 LLP v Revenue and Customs Commissioners [2016] 1 WLR 1939 at [17]. although it does not prevent a direction being given on terms as to costs.
20Eclipse Film Partners No 35 LLP v Revenue and Customs Commissioners [2016] 1 WLR 1939 at [20]. Nor can it be used to circumvent the procedural protection that applies when the power to strike out a case is being considered.
21Kelly v Ingersoll-Rand Co Ltd [1982] ICR 476.7.17Although they are framed as powers, the elements of the overriding objective may operate to require the tribunal to give a direction on a particular matter and even a specific direction.
7.18The proper use of the overriding objective should prevent unnecessary reliance on the particular form in which issues are presented. UTR r48 and its equivalents
22GRC Rules r45; HESC Rules r50; IAC Rules r36; Lands Rules r58; PC Rules r56; SEC Rules r41; Tax Rules r42; WPAFC Rules r39. give a tribunal power to treat some forms of application as another:
The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.
7.19This is but an instance of, and does not restrict, a tribunal’s general power to apply the appropriate procedure to the substance of any communication from a party or a witness.
23See the discussion of the enabling approach in chapter 1. The power must not be applied to override the express wishes of a competent representative.
24PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC) at 20].Specific powers
7.20In addition to these general powers, tribunals are given specific powers on particular matters. Tribunals have specific power to make orders or directions on disclosure of documents and information
25See chapter 10. and on evidence and submissions. UTR r15(1) is illustrative of the latter:
26See also: GRC Rules r15(1); HESC Rules r15(1); IAC Rules r14(1); Lands Rules r16(1); PC Rules r18(1); SEC Rules r15(1); Tax Rules r15(1); WPAFC Rules r15(1). The CPR equivalent is r32.1.(1)Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Upper Tribunal may give directions as to–
(a)issues on which it requires evidence or submissions;
(b)the nature of the evidence or submissions it requires;
(c)whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;
(d)any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;
(e)the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given–
(i)orally at a hearing; or(ii)by written submissions or witness statement; and
(f)the time at which any evidence or submissions are to be provided.
7.21This power to control the evidence and issues is, perhaps, the single most valuable power in ensuring the effective and efficient use of the proceedings. It may be operated at the interlocutory stage or during a hearing. The extent to which it is applied at the interlocutory stage will depend on the tribunal’s workload and the judicial resources available.
7.22And the Upper Tribunal has power to make directions on the respondent’s response to an appeal (r24(1)) and the appellant’s reply (r25(1)).
Checklists
7.23Tribunals should not create judge-made checklists to supplement what is contained in the rules. This practice was deprecated by the Court of Appeal in respect of CPR in
Sayers v Clarke Walker (a firm)27[2002] 1 WLR 3095 at [18] and [23]. and
Woodhouse v Consignia plc.
28[2002] 1 WLR 2558 at [35].7.24The cases discussed the relevance of CPR 3.9 when considering a sanction for failure to comply (in that case with a time limit). At the time, that rule provided:
(1)On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including–
(a)the interests of the administration of justice;
(b)whether the application for relief has been made promptly;
(c)whether the failure to comply was intentional;
(d)whether there is a good explanation for the failure;
(e)the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;
(f)whether the failure to comply was caused by the party or his legal representative;
(g)whether the trial date or the likely trial date can still be met if relief is granted;
(h)the effect which the failure to comply had on each party; and
(i)the effect which the granting of relief would have on each party.
(2)An application for relief must be supported by evidence.
7.25In
R (Howes) v Child Support Commissioners,
29[2008] 1 FLR 1691. Black J held that it was inappropriate to create or import checklists. She was there concerned with the Child Support Commissioners (Procedure) Regulations 1999, which were not based on an overriding objective. Her comments are, though, of general application:
Mr Burrows does not produce any authority for importing the CPR 3.9 approach or even simply the checklist in CPR 3.9(1) into the Child Support Commissioners (Procedure) Regulations 1999. I note that in the case of
Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095, upon which he relies as a useful explanation of the operation in practice of CPR 3.9, the Court of Appeal referred back to the earlier case of
Audergon v La Baguette [2002] EWCA Civ 10, (2002)
The Times, January 31, in which it had deplored the creation of judge-made check-lists which it considered an approach which carried the inherent ‘danger that a body of satellite authority may be built up … leading in effect to the rewriting of the relevant rule through the medium of judicial decision’. It seems to me that that danger potentially exists as much when one imports a checklist from one set of rules to another as when one invents one’s own checklist. There was no reason why the Child Support Commissioner (Procedure) Regulations could not have contained an equivalent provision to CPR 3.9 or a checklist of some sort for the use of Commissioners considering the issue of special reasons if that had been thought appropriate. No doubt the sort of matters to which reference is made in CPR 3.9(1) may quite often also be relevant in cases considered by Commissioners under regulation 11(3) but I do not think it appropriate to impose upon Commissioners an obligation to refer to CPR 3.9(1). The concept of special reasons is a broad and flexible one and the factors that are relevant will be dependent upon the circumstances of the individual case.
30[2008] 1 FLR 1691 at [39].7.26
Howes was applied to the Administrative Appeals Chamber in
R (CD) v First-tier Tribunal (SEC).
31[2010] UKUT 181 (AAC).7.27In
Neary v Governing Body of St Albans Girls’ School,
32[2010] ICR 473. the Court of Appeal linked the relevance of CPR to the adequacy of a tribunal’s reasons. Smith LJ explained:
… the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors. His decision must comply with the basic requirements as set out in
English v Emery Reimbold & Strick [2002] 1 WLR 2409. Litigants are entitled to know why they have won or lost and appellate courts must be able to see whether or not the judge has erred. In a case of this kind, it seems to me that the basic requirements are that the judge must make clear the facts that he has regarded as relevant. He must say enough for the reason for his decision to be understood by a person who knows the background. In a case where the draconian sanction of strike-out has been imposed, it will be necessary for the judge to demonstrate that he has weighed the factors affecting proportionality and reached a tenable decision about it. That does not mean that he must use any particular form of words. Any requirement for a particular form of words leads readily to the adoption of them as a mantra. But it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just.
33[2010] ICR 473 at [52].It is, though, permissible for the Upper Tribunal to indicate factors that a tribunal should take into account without prescribing or giving guidelines on how the tribunal should exercise its discretion.
34R (YT) First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT 0201 (AAC) at [3.8]–[3.9] in Appendix 2.The powers in action
7.28Many of these powers are discussed elsewhere.
7.29One respect in which the courts have restricted the tribunal’s case management powers is in relation to deciding that a party has no case to answer. A tribunal may use this power to decide not to hear the other side on the ground that the burden of proof has not been discharged.
35Hackney London Borough Council v Usher [1997] ICR 705 at 713. However, this is exceptional. The power should only be exercised in this way if the party’s case is hopeless. And a tribunal must hear one party’s case before doing so.
36R v N Ltd (2008) Times 25 August. Otherwise, the tribunal should hear argument and evidence from all parties, regardless of whether there is a burden on any particular party or not.
37Logan v Customs and Excise Commissioners [2004] ICR 1.7.30In some types of case, it may be inappropriate to dispose of a case on this basis at all. This is especially so in split hearings involving the welfare of children.
38Re R (Family Proceedings: No Case to Answer) [2009] 2 FLR 83.Disclosure of documents to non-parties
7.31So long as the proceedings are ongoing, the tribunal may give any directions relating to the conduct of the proceedings, which may include a direction that documents relating to those proceedings be disclosed to non-parties. This is part of the tribunal’s case management powers.
39See: UTR r5; GRC Rules r5; HESC Rules r5; IAC Rules r4; Lands Rules r5; PC Rules r6; SEC Rules r5; Tax Rules r5; WPAFC Rules r57.32If proceedings are not ongoing, the tribunal can only act within its express and implied powers. The rules of procedure do not provide for the power to disclosure documents to a non-party, so the power only exists if it can be implied.
7.33The courts have power to order disclosure documents to non-parties under their inherent jurisdiction.
40Law Debenture Trust Corporation (Channel Islands) Ltd v Lexington Insurance Co [2003] EWHC 2297 (Comm). The Upper Tribunal may have this power under TCEA s25.
7.34Non-parties cannot obtain documents that have been created for the purposes of proceedings under the Freedom of Information Act 2000, as they are subject to an absolute exemption under section 32.
Procedure in relation to directions
7.35This is governed by the rules of procedure. UTR r6 is illustrative.
41See: UTR r6; GRC Rules r6; HESC Rules r6; IAC Rules r5; Lands Rules r6(1); PC Rules r7; SEC Rules r6; Tax Rules r6; WPAFC Rules r6.7.36The tribunal has power to give, amend, suspend and set aside directions. If a party finds it difficult or impossible to comply with a direction, the proper course is to apply under these powers. A party is not entitled to disregard a direction
42Black J in R (Davies) v Commissioners Office [2008] 1 FLR 1651 at [14]. or a witness summons.
43CB v Suffolk County Council [2010] UKUT 413 (AAC) at [28]. In the case of an application for permission to appeal, it is primarily the duty of the appellant to comply with the directions, even if they are addressed generally to the parties.
44Re M-W (Care proceedings: expert evidence) [2010] 2 FLR 46 at [5].7.37Any party to the proceedings may apply for a direction, stating the reasons for the application. However, the value of the case management powers would be severely limited if the tribunal could only act on application by one of the parties. TCEA Sch 5 para 6 therefore authorises provision for the tribunal to act on its own initiative. This power has been exercised.
45See: UTR r6(1); GRC Rules r6(1); HESC Rules r6(1); IAC Rules r5(1); Lands Rules r6(1); PC Rules r7(1); SEC Rules r6(1); Tax Rules r6(1); WPAFC Rules r6(1). The CPR equivalent is r3.3.7.38The directions will not necessarily be given formally in writing. They may be given less formally in the course of the hearing (for example: by not allowing particular evidence to be given) or be implicit in the way that the hearing is conducted (for example: by the order in which parties are invited to present their case).
7.39The Upper Tribunal may treat a decision of the First-tier Tribunal as made under its power to amend, suspend or set aside a direction, if that was the substance of the matter, even if that tribunal purported to act under a different authority.
46HM/2772/2010 at [22]; Ofsted v AF [2011] UKUT 72 (AAC) at [21]; Information Commissioner v PS [2011] UKUT 94 (AAC) at [73]–[75].7.40The tribunal’s power to give and to change directions and to do so on its own initiative allows it correct mistakes. This is a useful and proper exercise of the power, but it must be used on principled grounds and not simply because of a change of mind.
47SCT Finance Ltd v Bolton [2003] 3 All ER 434 at [58].7.41An application to amend, suspend or set aside a direction should only be made on good grounds.
48Chanel Ltd v F W Woolworth & Co Ltd [1982] 1 WLR 485 at 492. The decision on the application must be made on the circumstances then obtaining, not on those obtaining at the time the direction was given.
49Tibbles v SIG plc [2012] 1 WLR 2591 at [49].7.42A party should not be allowed to repeat an application for a direction by relying on material that could have been used in support of the previous application. This ensures that the tribunal’s limited resources are properly allocated and protects the other party in the interests of finality.
50Woodhouse v Consignia plc [2002] 1 WLR 2558 at [55].7.43A direction may be amended even after the main proceedings are concluded and this may be done on the tribunal’s own initiative at the instigation of someone who was not a party to the main proceedings.
51Re X (Reporting restriction order: Variation) [2015] UKUT 0380 (AAC); [2016] AACR 6, in which a restriction on reporting was varied in order to allow disclosure to the police, the local authority and the Crown Prosecution Service. Reconsideration of interlocutory decisions
7.44Tribunals have power to change a direction either on application under UTR r6(5) and its equivalents or of their own initiative. Following the decision of the Court of Appeal in
Patel v Secretary of State for the Home Department,
52[2015] EWCA Civ 1175. it is not clear to what extent a tribunal has a power of reconsideration outside its express powers. That case decided that there is no power to reconsider at least a grant of permission to appeal and, possibly given its reasoning, no power to do so at all. What follows must be read subject to this decision.
7.45All courts and tribunals have power to reconsider their decisions. One power of reconsideration applies to interlocutory decisions made without a hearing.
7.46If the decision has been made without notice to the other parties, it can be reconsidered. This power allows a tribunal to discharge the decision. The basis of this power is the fact that the other party was not heard. As Cotton LJ explained in
Boyle v Sacker:
53(1888) 39 Ch D 249.… discharging an order is not the same thing as reversing or varying an order, it does not go on the ground that there has been an erroneous decision, but on the ground that the opposing party has not had an opportunity to be heard.
54(1888) 39 Ch D 249 at 251.7.47This reasoning extends to decisions that have been made without a hearing for any of the parties.
7.48It is only appropriate to apply for a reconsideration if there are strong reasons for doing so.
55Neuberger J in Re Blenheim Leisure (Restaurants) Ltd (No 3) (1999) Times 9 November; Lord Widgery CJ in R v Kensington and Chelsea Rent Tribunal ex p MacFarlane [1974] 1 WLR 1486 at 1493.7.49Reconsideration is a power, not a duty. According to the Tribunal of Commissioners in
R(I) 7/94, it can only arise if an application is made.
56R(I) 7/94 at [35].7.50The power to reconsider is not limited to judicial bodies. It applies also to decision-makers. In
R (C) v Lewisham London Borough Council,
57[2003] 3 All ER 1277. the issue was the local authority’s duty to provide accommodation. Ward LJ said that the legislative scheme envisaged only one review, but went on:
58[2003] 3 All ER 1277 at [59].That is not to say that a local authority may not choose as a matter of their discretion to entertain such a request for a further review or a further extension of time.
He went on to emphasise that, being discretionary, there was little chance of obtaining a judicial review of an authority’s ‘refusal to consider such a further indulgence’.
59[2003] 3 All ER 1277 at [59].7.51It may be permissible, or even appropriate, for the reconsideration to be undertaken by the same tribunal. In
Khreino v Khreino,
60[2000] 1 FLR 578. an application for permission to appeal to the Court of Appeal was refused on paper and renewed at an oral hearing. One of the Lords Justice at the oral hearing was the one who had refused the application on the papers. The Court held that this was permissible, as an oral hearing of an application would not simply be a reconsideration of the points made and rejected on paper. Thorpe LJ emphasised that a renewed application would only be appropriate in exceptional circumstances.
61[2000] 1 FLR 578 at 580. And Mummery LJ identified matters appropriate for consideration at an oral hearing which had not been dealt with on the papers – matters that had occurred since the application, new authorities that might apply, errors or omissions in the paper application.
62[2000] 1 FLR 578 at 581.7.52Some of this reasoning may not apply under TCEA. In particular, for those jurisdictions in which there is a right to renew an application at an oral hearing, the arguments raised will not necessarily be new ones.
Failure to comply and enforcement
7.53TCEA does not deal with the effect of either (i) a failure to comply with a requirement in a rule, a practice direction or a direction or (ii) the irregularity that may result from that failure. However, the rules of procedure deal with both.
7.54The rules do not deal with the effect of a failure to comply with a practice statement.
Failure to comply
7.55Failure to comply presumes a duty. It is inherent in the nature of the rules of procedure and practice directions that they are, where appropriately worded, mandatory. Directions may also be mandatory in their terms, but the rules do not state that there is a duty to comply with directions. However, this is implied by the provisions for amending, suspending and setting aside a direction. It is also implied by the nature of the provisions that apply in the event of a failure to comply with a direction.
7.56It may not be possible or appropriate for a party to comply with a rule or a practice direction. In that case, the proper course is to apply for the tribunal to give a direction or for the time for compliance to be extended.
63See chapter 6.7.57The rules of procedure provide for the tribunal to take such action as it considers just following a failure to comply. UTR r7(2) is illustrative:
64See also: GRC Rules r7(2); HESC Rules r7(2); IAC Rules r6(2); Lands Rules r7(2); PC Rules 8(2) and (3); SEC Rules r7(2); Tax Rules r7(2); WPAFC Rules r7(2).(2)If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include–
(a)waiving the requirement;
(b)requiring the failure to be remedied;
(c)exercising its power under rule 8 (striking out a party’s case); or
(d)except in mental health cases, restricting a party’s participation in the proceedings.
This only applies to failures by a party. It does not apply to a failure by the tribunal. For example: it does not apply if the tribunal failed to give a party reasonable notice of an oral hearing. Restricting participation under subpara (d) must involve something less that striking out or barring, as they are covered by subpara (c) and r8.
7.58Relief may be given subject to conditions,
65Price v Price (trading as Poppyland Headwear) [2003] 3 All ER 911; Days Healthcare U Ltd v Pihsiang Machinery Manufacturing Co Ltd [2006] 4 All ER 233. provided that they are attainable.
66M V Yorke Motors (a Firm) v Edwards [1982] 1 WLR 444. The aim of conditions is to ensure that the case is dealt with fairly and justly rather than to punish or penalise.
67Mubarak v Mubarik (Contempt in Failure to Pay Lump Sum: Standard of Proof) [2007] 1 FLR 722 at [90].7.59Failures that are attributable to a representative are discussed in chapter 3.
7.60The First-tier Tribunal may also refer certain failures to the Upper Tribunal. These are set out in UTR r7(3):
(3)Paragraph (4) applies where the First-tier Tribunal has referred to the Upper Tribunal a failure by a person to comply with a requirement imposed by the First-tier Tribunal–
(a)to attend at any place for the purpose of giving evidence;
(b)otherwise to make themselves available to give evidence;
(c)to swear an oath in connection with the giving of evidence;
(d)to give evidence as a witness;
(e)to produce a document; or
(f)to facilitate the inspection of a document or any other thing (including any premises).
68The power to refer is contained in: GRC Rules r7(3); HESC Rules r7(3); IAC Rules r6(3); PC Rules r8(5); SEC Rules r7(3); Tax Rules r7(3); WPAFC Rules r7(3). 7.61The Upper Tribunal has powers under TCEA s25. It can use these powers in respect of its own proceedings or, on a referral by the First-tier Tribunal, in respect of certain failures to comply with requirements of that tribunal.
69UTR r7(3) and (4). The Upper Tribunal may only exercise its powers if the failure was material to the issues before the First-tier Tribunal.
70MR v CMEC and DM [2009] UKUT 283 (AAC) at [3]. The Upper Tribunal’s reasoning was based on the extent of its own powers under TCEA s25. This is an irrelevant consideration under UTR r7(3) and (4). However, the tribunal’s conclusion is surely correct as a matter of principle. 7.62If the tribunal has power to order costs, the failure may be reflected in the award.
Irregularity
7.63The rules provide that an irregularity resulting from a failure to comply does not
of itself render the proceedings, or any step in them, void. UTR r7(1) is illustrative:
71See also: GRC Rules r7(1); HESC Rules r7(1); IAC Rules r6(1); Lands Rules r7(1); PC Rules 8(1); SEC Rules r7(1); Tax Rules r7(1); WPAFC Rules r7(1). CPR take a different approach. They focus on the procedural error rather than on the irregularity that results from it: r3.10.(1)An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
72In the absence of an express provision, the effect of a failure to comply is a matter of interpretation: District Court of Vilnius v Barcys [2008] 1 All ER 733. 7.64The rules do not define ‘irregularity’. It clearly means that something has not been done regularly in accordance with the rules.
73‘Deficiency’ is likewise interpreted broadly: Hall v Wandsworth London Borough Council [2005] 2 All ER 192 at [29]. However, it may not include every consequence of a failure to comply. In
In re Pritchard deceased74[1963] Ch 502., the Court of Appeal decided that, under the Rules of the Supreme Court then in force, there were some defects that rendered proceedings a nullity rather than merely irregular. The Rules were amended to remove this distinction.
75The new rule was discussed by the Court of Appeal in Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729. However, it is still relevant under CPR. For example: the court decided that a failure to serve proceedings was not an error of procedure that could be remedied under CPR equivalent to rule 7(1).
76Olafsson v Gissurarson [2007] 2 All ER 88 and on appeal on a different issue [2008] 1 WLR 2016.7.65The words ‘of itself’ show that there may be something more than the irregularity itself that may deprive the proceedings or a step taken in them of any legal force or effect. Whether this is so will be determined under the basic principles that govern the effect of a failure to comply with a procedural provision. These are discussed at para 2.81 onwards above.
7.66Irregularities arising from a failure to comply with a time limit are discussed at para 7.79 onwards below.
Overall view
7.67The appropriate response to the same failing by a party may arise in different contexts. For example: the appellant’s conduct in the proceedings may lead to an application by the respondent that the proceedings be struck out and an application by the appellant for the requirements to be waived or both. The decision should not be affected by the context in which it is raised. It is important to take an overall view of the impact on the proceeding, as Sir Thomas Bingham MR explained in
Costellow v Somerset County Council:
77[1993] 1 WLR 256.In the great mass of cases, it is appropriate for the court to hear the summonses together, since in considering what justice requires the court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round.
78[1993] 1 WLR 256 at 264.Failure to notify a decision
7.68This is discussed in chapter 2.
On appeal
7.69A case management decision can be made appealable with appropriate wording.
79R v Clark (2007) Times 29 October. Under TCEA, it is appealable as a decision that is not an excluded decision under
LS v London Borough of Lambeth.80[2010] UKUT 461 (AAC). It may also be challenged through an appeal against the final decision.
7.70If a tribunal exercises its case management powers reasonably, it will be supported on appeal.
81See Lord Templeman in Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 at 454 and R v Jisl and Tenkin (2004) Times 1 April. Even before the days of case management, courts recognised that expedition was a legitimate consideration.
82Lord Reid recognised the legitimacy of expedition in Wiseman v Borneman [1971] AC 297 at 308, while accepting that it had to be balanced against the need for the each party to have an opportunity to consider the other party’s evidence.Delay
7.71Significant delay is not generally a feature either of proceedings before tribunals or of their decisions.
83See the comments of Mummery LJ in respect of employment tribunals in Connex South Eastern Ltd v Bangs [2005] ICR 763 at [13]. The issue for delay is how to avoid it. This is a case management issue. In
Connex South Eastern Ltd v Bangs,
84[2005] ICR 763 at [20]. the Court of Appeal approved of the advice given by the Employment Appeal Tribunal below under the name
Kwamin v Abbey National plc.
85[2004] ICR 841. The issue was the effect of delay between the hearing and the making of the decision, but the Tribunal gave general advice on avoiding delay at all stages:
86[2004] ICR 841 at [6]–[10] and [16].•active case management to minimise delays before a case comes on for hearing;
•co-operation between the parties and the tribunal in fixing an appropriate estimate for the time needed for the hearing;
•adjournments for as short a period as possible and if possible to a fixed date;
•setting a time within the tribunal system for reaching decisions;
•allowance of time for the members to discuss the case and for the reasons to be written;
•reminders of the time that has elapsed since the hearing.
Delegation
7.72The exercise of a judicial power or duty cannot be delegated,
87Barnard v National Dock Labour Board [1953] 2 QB 18; Lord Parker CJ in R v Governor of Brixton Prison ex p Enahoro [1963] 2 QB 455 at 465–466; without statutory authority.
7.73The power to delegate judicial functions to staff is governed by TCEA Sch 5 para 3. This power is exercised in the rules of procedure. UTR r4 is illustrative:
88See also: GRC Rules r4; HESC Rules r4; IAC Rules r3; Land Rules r4; PC Rules r5; SEC Rules r4; Tax Rules r4; WPAFC Rules r4.(1)Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done by the Upper Tribunal.
(2)The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.
(3)Within 14 days after the date on which the Upper Tribunal sends notice of a decision made by a member of staff under paragraph (1) to a party, that party may apply in writing to the Upper Tribunal for that decision to be considered afresh by a judge.
7.74The Senior President has issued practice statements on Delegation Of Functions To Staff.
7.75A tribunal may have an express power to correct mistakes made by persons exercising one of its delegated functions. This power may also be implied as part of the tribunal’s power over its own procedure.
89Re Macro (Ipswich) Ltd [1996] 1 WLR 145 at 154–155. The discussion refers to inherent power or jurisdiction, but the context suggests that the power is implicit or implied.The limits to case management
7.76A case management power has its limits. A general power to manage proceedings does not, for example, allow a tribunal to do something that is not within its power. For example: it does not allow a tribunal to reinstate proceedings that have been withdrawn,
90Brooke LJ in Khan v Heywood and Middleton Primary Care Trust [2007] ICR 24 at [76]. unless there is power to do so. Nor can it authorise something that is expressly forbidden by the rules of procedure.
91May LJ in Vinos v Marks and Spencer plc [2001] 3 All ER 784 at [20]. Finally, however robust judges are entitled to be, there are limits beyond which the conduct of the proceedings amounts to a serious procedural irregularity.
92In the matter of A (Children) [2015] EWCA Civ 133 at [9].