WithdrawalArdandhu, The (1887) 12 App Cas 256Times 20 January
The nature of withdrawal
12.53Most proceedings are begun by the voluntary act of a party. As such, in principle that party should be able to withdraw them. However, this may be subject to the interests of the other parties and the public interest generally. This is likely to be controlled by giving the tribunal a discretion. This discretion may or may not involve a consideration of the merits of the case. These general principles require modification under TCEA and for some types of referral.
12.54The rules of procedure under TCEA assume rather than define withdrawal.
1For an instance of a statute contemplating withdrawal but making no provision for it, see R (O Twelve Baytree Ltd) v Leasehold Valuation Tribunal [2015] 1 WLR 276. They do not stipulate its effect. It is necessary to find its effect and, therefore, the scope of the rule, in the nature of the concept. In CPR, the effect of withdrawal (there called discontinuance) is to discontinue proceedings or a part of proceedings. However, tribunal proceedings are less formal. Different parties may challenge different aspects of a decision before the tribunal without bringing separate proceedings or cross proceedings. Withdrawal cannot, therefore, be confined to the party who initiated the proceedings or cross proceedings. Nor can it be confined in its effect to the continuance of the proceedings. Instead, the rules allow any party to withdraw a case, without defining what that means.
12.55‘Case’ must have a meaning akin to proceedings. It must be distinguished from an argument on a case or a concession. Withdrawing an argument or making a concession of law or fact is not withdrawal and does not require the consent of the tribunal.
Under TCEA
12.56There is no express power authorising rules of procedure in respect of withdrawal. It is either embraced by ‘practice and procedure’ within section 22(1) or an ancillary power under paragraph 16 of Schedule 5. UTR r17 is illustrative under TCEA:
2See also: GRC Rules r17; HESC Rules r17; IAC Rules r17; Land Rules r20; PC Rules r22; SEC Rules r17; Tax Rules r17; WPAFC Rules r17. The CPR equivalent is CPR Part 38.(1)Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it–
(a)by sending or delivering to the Upper Tribunal a written notice of withdrawal; or
(b)orally at a hearing.
(2)Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal.
(3)A party which has withdrawn its case may apply to the Upper Tribunal for the case to be reinstated.
(4)An application under paragraph (3) must be made in writing and be received by the Upper Tribunal within 1 month after–
(a)the date on which the Upper Tribunal received the notice under paragraph (1)(a); or
(b)the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).
(5)The Upper Tribunal must notify each party in writing that a withdrawal has taken effect under this rule.
Withdrawal by applicants and appellants
12.57Under UTR r17, any party may withdraw all or part of a case. The most likely party to withdraw will be the applicant or appellant who initiated the proceedings. For convenience, this section generally assumes that it is the appellant who wishes to withdraw an application for permission or an appeal.
Withdrawal as of right
12.58Withdrawal may be allowed as of right. If it is, the notice is self-executing on receipt by the tribunal.
3WM v Secretary of State for Work and Pensions [2015] UKUT 0642 (AAC). This is the position for applications for permission to appeal under UTR r17(2). This reflects the fact that, at this stage, neither any other party nor the public generally are likely to have an interest in the proceedings continuing against the wish of the appellant. Any party who wishes the appeal to proceed may apply for permission and, if necessary, an extension of time in which to do so.
Withdrawal with consent
12.59Withdrawal may be allowed only with the consent of the tribunal. This is the position for appeals under UTR r17(2).
12.60If consent is required, the tribunal will have to consider the interests of the appellant, the other parties and the public interest generally. This may also require a tribunal to take account of the nature of its function. These matters have been considered by the courts in cases in which the rules of procedure did not make provision for withdrawal.
12.61In
Hanson v Church Commissioners for England,
4[1978] QB 823. the case had come before the rent assessment committee on a reference from a rent officer following an objection from the tenant to the rent fixed by the rent officer. The court held that there was a public interest in the fixing of fair rents, so that an attempt at a unilateral withdrawal was not effective.
12.62Lord Denning MR drew a distinction between private disputes, in which unilateral withdrawal was permissible, and those that involved a public interest, in which the wishes of other parties and the public interest had to be taken into account:
The legal position as shown by the cases is that in the ordinary way where there is a dispute before a tribunal in a civil matter, either party has a right to withdraw his application or objection, as the case may be, at any time before the decision is given. That is shown by Boal Quay Wharfingers Ltd v King’s Lynn Conservancy Board [1971] 1 WLR 1558, 1559, 1566.
But when the dispute is one in which there is a public interest involved, it may not be permissible for one of the parties to withdraw on his own without the assent of the other; and, even if they both agree, he may not be able to withdraw unless the tribunal consents. It all depends on the construction which the courts place on the statute setting up the tribunal. That seems to me to be the correct interpretation of
Rex v Hampstead and St Pancras Rent Tribunal ex p Goodman [1951] 1 KB 541 where
both parties consented to the withdrawal of an application to pay the standard rent, and of the later case of
R v West London Rent Tribunal ex p Napper [1967] 1 QB 169 where there was an attempted withdrawal that was not upheld.
5[1978] QB 823 at 832–833.On this analysis, a purely private dispute could be terminated unilaterally. But a dispute with a public interest could only be terminated with the agreement of the other parties and the permission of the tribunal.
12.63Lawton LJ spelt out the relationship between these interests:
In my judgment, in the absence of a specific statutory prohibition, if the proceedings can be brought to an end without prejudicing any interest whether private or public, then they can be. Any other approach would lead to a waste of a tribunal’s time and to the waste of both public and private money … If that sort of expenditure can be saved by agreement between the parties, it is in the public interest that it should. It is for the tribunal, before which the proceedings are, to decide whether prejudice may arise from the withdrawal of an objection. The simplest way of finding out whether there is any prejudice is to ask the parties. The best evidence of the absence of prejudice to the other party is for that party to give his consent. The tribunal, however, is the guardian of the public interest and must decide for itself whether withdrawal will prejudice that interest. In general I should have thought that the public interest would best be served by letting the parties decide for themselves what they want; but there may be circumstances known to the tribunal or brought to its attention which indicate otherwise.
6[1978] QB 823 at 839.The examples of the public interest given by Lawton LJ show that the public interest included factors indicating that the parties’ decisions may not have been freely given or fully informed.
7[1978] QB 823 at 839.12.64The terms of a tribunal’s duty, once a case is before it, are also relevant. In
R v Income Tax Special Commissioners ex p Elmhirst,
8[1936] 1 KB 487. the Court of Appeal decided that an appeal against an assessment could not be withdrawn by the taxpayer, because the Commissioners were required by statute to consider not only the terms of the appeal, seeking a reduced assessment, but also whether an increased assessment was required. This is linked to the public interest that underlay the tribunal’s duty. In the Divisional Court, Lord Hewart CJ had emphasised both the statutory duty and the public interest through that duty which was ‘owed by the Commissioners to the hidden parties to the appeal – namely, the general body of the taxpayers’.
9[1936] 1 KB 487 at 488–489.When may a withdrawal be made
12.65In principle, a party should be able to withdraw a case at any time before the tribunal had made and promulgated its decision or otherwise disposed of the case. This is subject to the tribunal’s consent, if required. A tribunal is likely to be astute to a tactical decision to withdraw a case that may go against the party. It is also subject to any issue as to costs.
12.66The position in principle may be varied by legislation.
10In R v Tottenham Districts Rent Tribunal ex p Fryer Bros. (Properties) Ltd [1971] 2 QB 681, statute allowed withdrawal before the tribunal had ‘entered upon consideration’ of the case. The Court of Appeal held that a notice of withdrawal that arrived after the members had read the papers was too late.The effect of withdrawal on the issues
12.67Withdrawal disposes of the party’s case and, perhaps, of the whole of the proceedings, although they survive for the purpose of making an application for costs in accordance with the express terms of UTR r10 and its equivalents.
11UA v London Borough of Haringey [2016] UKUT 0087 (AAC) at [12]. It does not finally determine the issues in the case.
12LO (Jordan) v Secretary of State for the Home Department [2011] EWCA Civ 164. As the House of Lords explained in
The Ardandhu,
13(1887) 12 App Cas 256. discontinuance (withdrawal) terminates the proceedings, but leaves the parties ‘at large as to reassert their rights if they please’
14(1887) 12 App Cas 256 per Lord Halsbury LC at 260. and ‘does not of itself operate as a release or an extinguishment of the claims, or in any other way bar further proceedings’.
15(1887) 12 App Cas 256 per Lord Herschell at 262.12.68Accordingly, it may be possible for a party who has withdrawn a case to apply for it to be reinstated, as under UTR r17(3). Reinstatement requires the permission of the tribunal, which may be given or refused in the tribunal’s discretion. The rules of procedure under TCEA do not expressly provide that permission is required, but it seems inherent in the need for the party to apply for reinstatement rather than merely giving notice.
12.69It may also be possible for the party, or another party, to commence new proceedings raising the same issue, subject to complying with any time limits and obtaining any necessary permission.
16Buckbod Investments v Nana-Otchere [1985] 1 WLR 342.12.70Some rules of procedure allow for withdrawal to take effect through dismissal.
17As in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 Sch 1 para 15(2)(a). Another possibility is that dismissal may be available as an additional step following withdrawal.
18As in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 r25. This disposes both of the proceedings and the issues raised in them.
19Staffordshire County Council v Barber [1996] ICR 379 at 397. If the withdrawal takes effect through a dismissal and has significance for other proceedings, the tribunal must make a formal order dismissing the claim or part of the claim that is withdrawn.
20Wall LJ in Sivanandan v Enfield London Borough Council [2005] EWCA Civ 10 at [122]; (2005) Times 20 January.12.71The significance of the contrast between withdrawal and dismissal was considered by the Court of Appeal in
Khan v Heywood and Middleton Primary Care Trust.
21[2007] ICR 24. The rules of procedure allowed withdrawal and, in addition, provided that the proceedings could be dismissed. The claimant withdrew the proceedings before the employment tribunal, but they were not dismissed. He sought an order from the tribunal reinstating the proceedings under its case management powers. The Court of Appeal held that the rules did not contain a power to reinstate, but that as they had not been dismissed, the claimant could bring fresh proceedings. Wall LJ referred to:
… the well-established distinction between a claim which has been withdrawn, but on which there is no judicial determination, and a claim which has been dismissed by a judicial act. The first does not, of itself, create either issue or cause of action estoppel; the latter does.
22[2007] ICR 24 at [10].12.72Exceptionally, it is permissible to raise an issue in later proceedings that could have been raised in the proceedings that were dismissed, provided that this is necessary in order to avoid an abuse of process.
23Staffordshire County Council v Barber [1996] ICR 379 at 398. This is likely to be allowed if the rules of procedure permit a withdrawal only by way of a dismissal and the dismissal of the particular case was in substance merely a discontinuance of the proceedings only and not of the underlying claim.
24Ako v Rothschild Asset Management Ltd [2002] ICR 899.12.73There is no power for withdrawal through dismissal in the rules of procedure under TCEA. However, the parties may agree to a consent decision, which would have the same effect.
The reinstatement process
12.74There is no specific provision for the process to be followed when a party applies for a case to be reinstated or for notification of the outcome.
12.75In practice, the views of the other parties will have to be taken into account when deciding whether or not to reinstate a case. And if it is, directions for the further conduct of the case will provide notice to the other parties.
Withdrawal by respondents
12.76Respondents may not simply oppose the case put by the applicant or appellant. They may present their own cases in proceedings brought by an applicant or appellant. For example: if both parents in a child support case wish to challenge different aspects of the First-tier Tribunal’s decision, this will be allowed on the appeal of one parent only.
12.77If a respondent withdraws a case, the proceedings continue, but that case no longer forms part of those proceedings.
Withdrawal of a referral
12.78The different types of referral are set out in chapter 5.
12.79The rules of procedure under TCEA do not seem to have taken account of all the issues that may arise in respect of referrals. To some extent, the difficulties are bypassed by the definition of ‘party’.
12.80It is necessary to consider the separate position of the person who makes the reference and the parties to the case referred. The latter may include the person who makes the reference. However, this will not necessarily be so. For example: if the First-tier Tribunal refers a case to the Upper Tribunal under TCEA s9(5)(b) it is not a party to the case before that tribunal.
If there was a duty to refer
12.81If the person who referred the case to the tribunal had no choice but to do so, the case cannot be withdrawn by that person. If the case is withdrawn, the duty would merely arise again. The rules may expressly prohibit withdrawal in such circumstances, as does HESC Rules r17(3).
12.82If the circumstances change so that a reference is no longer required, the case in effect lapses. There is, though, no provision for proceedings to lapse in these circumstances under the rules of procedure under TCEA. However, the change of circumstances may allow one of the parties to withdraw. This may include the person who made the reference (see the definition of ‘party’ in UTR), unless the rules prohibit withdrawal. Otherwise the person who is the main subject of the reference may be able to withdraw.
If there was no duty to refer
12.83If the person who referred the case had the choice whether or not to do so, the person may be a party and, therefore, entitled to withdraw. Under UTR, this will depend on whether what was referred was a ‘question or matter’ (see the definition of ‘party’ in rule 1(3)). Otherwise the person who is the main subject of the reference may be able to withdraw.
Costs
12.84A claimant who withdraws a claim may have conducted proceedings unreasonably so as to be liable for costs. The issue in such a case is not whether the withdrawal was unreasonable, but whether the proceedings had been conducted unreasonably.
25McPherson v BNP Paribas (London Branch) [2004] ICR 1398.12.85The proceedings survive for the purpose of making an application for costs in accordance with the express terms of UTR r10 and its equivalents.
26UA v London Borough of Haringey [2016] UKUT 0087 (AAC) at [12].