Resumed hearings and rehearingsTimes 25 October
8.151A number of issues arise when a tribunal resumes a hearing after an adjournment or rehears a case after its decision has been set aside. How should the tribunal be constituted? What information should it have before it? What issues should it consider?
Constitution of the tribunal
8.152This will depend on the terms of the legislation and the directions given by the tribunal that set the decision aside.
8.153If the hearing is resumed after an adjournment, the tribunal may be constituted in the same way as before or differently. If the tribunal is constituted by the same members, no difficulty arises. If it is constituted differently, ideally the members should all be different. As the Tribunal of Commissioners said in
R(U) 3/88:
1R(U) 3/88 at [7].… it seems to us undesirable for a member to have a residual knowledge of evidence given at the earlier hearing which is not shared by the other members – knowledge of what was said as distinct from what was written down.
This is a precautionary principle based on risk and does not depend on an inquiry whether the tribunal possessed any residual knowledge or, if so, whether it affected the outcome.
2JH v Secretary of State for Work and Pensions and MH [2016] UKUT 0158 (AAC) at [1]. 8.154If the decision is set aside by the tribunal itself, the set aside and review powers make no provision for the constitution of the tribunal at the rehearing. Natural justice and article 6 will almost always dictate that the tribunal be differently constituted for the rehearing.
8.155If the decision is set aside by the Upper Tribunal, TCEA s12(3)(a) allows the Upper Tribunal to direct that the members of the First-tier Tribunal who are chosen to reconsider the case must not be the same as those who made the decision that has been set aside. This is a power not a duty, so the Upper Tribunal may direct that the case may, or even must, be reheard by the same members. Section 14(3)(a) makes equivalent provision if a decision of the Upper Tribunal is set aside by the Court of Appeal.
Information before the tribunal
8.156There are two categories of information that a party may not wish to be before the tribunal at the resumed hearing or rehearing.
The evidence that was available at the previous hearing
8.157In principle, the evidence that was before the tribunal at the previous hearing should be available on the rehearing. The evidence was available or taken at that hearing. The fact that the hearing was adjourned or the hearing set aside does not affect the relevance or admissibility of the evidence. This was considered by the Tribunal of Commissioners in
R(U) 3/88. The Tribunal decided that the notes of evidence taken at a previous hearing should be available for the rehearing.
3R(U) 3/88 at [7].8.158There is a power to exclude evidence
4See chapter 10. and it may be appropriate to exercise that power to exclude some or all of the evidence previously taken. This is a general power and there are no potential limits to the circumstances in which it may be appropriate. There may be doubt about the accuracy or completeness of the record of the evidence taken. For example: if the proceedings were not recorded, a party may challenge the record of proceedings. Or there may be a doubt about the reliability of the evidence previously taken. For example: the way in which the evidence was elicited may cast doubt on its reliability. Or it may be impossible for the evidence to be assessed by the new tribunal. For example: an observation of a party’s behaviour, recorded at the previous hearing, will be available to the new tribunal only through the (probably contested) record. Or admitting the evidence could lead to further evidence and argument in relation to it that distracts from the key issues in the case. All of the previous examples would potentially give rise to such issues.
8.159Even if factors such as these do not lead to the evidence being excluded, it may be appropriate to take them into account when assessing the reliability and probative worth of the evidence.
The decision that was set aside
8.160Should a tribunal that rehears a case see the decision that was set aside? This was considered by the Court of Appeal in
Swash v Secretary of State for the Home Department.
5[2007] 1 All ER 1033. If a decision is set aside, it should usually be available to the tribunal that rehears the case, as it may help to identify issues. This is so even if the findings of fact in the decision were rendered invalid by reason of law. However, the tribunal that rehears the case must take care not to be influenced by the discredited findings.
8.161In exceptional cases, the decision should not be before the tribunal at a rehearing. For example: if the decision was set aside on the ground of actual bias, it might be appropriate that its discredited findings and reasoning should not be available to taint the rehearing. An application to this effect should be made to the tribunal that directs the rehearing.
Issues for consideration
8.162A decision may be set aside under its procedural error power (UTR r43 and its equivalents),
6See: GRC Rules r41; HESC Rules r45; IAC Rules r32; Lands Rules r54; PC Rules r51; SEC Rules r37; Tax Rules r38; WPAFC Rules r35. its review power or on appeal.
8.163The scope of a rehearing consequent upon the exercise of the procedural error power is determined by what is set aside. The tribunal has power to set aside a decision or part of a decision. There is no power to limit the issues that must be considered afresh. If the whole decision is set aside, the decision must be re-made. If only part of a decision is set aside, only that part has to be re-made. As a matter of law, the issues raised will be identified as if the decision were being made for the first time.
8.164The position is the same if the rehearing is consequent upon the exercise of the review power, except that there is no power to set aside only part of a decision on review.
8.165The scope of a rehearing consequent upon a successful appeal is determined by the directions given by the Upper Tribunal. TCEA s12(2)(b)(i) gives the Upper Tribunal power to set aside a decision of the First-tier Tribunal and remit the case with directions for its reconsideration. Those directions may limit the issues that arise on the rehearing.
7Aparau v Iceland Frozen Foods plc [2000] ICR 341; Jones (t/a Shamrock Coaches) v Department of Transport Welsh Traffic Area [2005] EWCA Civ 58, (2005) Times 24 January; Way v Poole Borough Council [2007] EWCA Civ 1145, (2007) Times 25 October; Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [15]; Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 at [20]. Otherwise, the issues raised will be identified as if the decision were being made for the first time.