CHAPTER 14
chapter 14
The decision
14.3Decisions on particular issues 14.5Standard notices and precedents 14.7Public judgment under article 6 14.12Appeals under TCEA ss11 and 12 14.22Set aside or not set aside? Remitting • Constitution • Directions • Re-making • Evidence • Change of circumstances • Knowledge and experience • Clear direction on the law • Precedent status • Time considerations • Inadequacy of reasons and materiality • Procedural errors
14.45Appeals to the Court of Appeal under TCEA and to the Supreme Court 14.46Appeals under other legislation 14.53The power to make a consent order 14.56Jurisdiction to make a particular order 14.62Consent orders based on contract 14.65Consent orders not based on contract 14.72Challenging a consent order 14.77Authority to agree to a consent order 14.80Standard and burden of proof 14.80The burdens and standard of proof 14.81Statutory interpretation The relevance of the burden • The incidence of the burden • Legislation • The order of proceedings
14.98The evidential burden The role of the burden
Facts founding inferences • Facts and judgment • Applied to the issue as a whole • Not a flexible standard • Factors relevant to the balance • The relevance of article 6 • Alternative formulations • Mathematics and probabilities • If it is not possible to make findings of fact
14.147The nature of decision-making 14.154Maintaining an open mind 14.158The dynamics of decision-making 14.161Structured decision-making 14.176Consistency in the exercise of a discretion 14.177Consistency in respect of evidence common to a class of case 14.178Consistency between parties 14.179Consistency in respect of the same party 14.183Consistency between successive claims by the same party 14.184Consistency on reconsideration The duty • The power • Non-disclosure and confidentiality
14.202The reasons for decision 14.205Who are the reasons for? 14.212What should the reasons contain? Anonymity
14.223How can the reasons be made clear? 14.233What style should be adopted? 14.241When is humour appropriate? 14.242Standard form and content 14.249Oral and written decisions 14.250Conflict between oral and written decisions 14.254Reasons as justification 14.256Promulgation and control over decisions and reasons 14.258Changes before promulgation 14.263Changes after promulgation 14.1Tribunals must act within their statutory jurisdiction, because that defines the limits of their power. They must act judicially, because that is their nature. They must decide the issues that arise for resolution, because that is their function. And they must make decisions that are clear, sufficiently complete and capable of being implemented, because the discharge of their duty to decide the issues judicially must be effective.
14.2The decision itself should be stated clearly and precisely. It is good practice to state the decision in the terms of the legislation and to cite that legislation. The subject of the decision will determine what has to be included. But depending on the circumstances, the following are likely to be important: the effective date of the decision; the period for which it applies; the amount of any money involved. It is essential to state the decision in a form that can be understood and implemented.
Decisions on particular issues
14.3A tribunal may limit its decision to the issues that have been decided on the appeal.
1R(IS) 2/08. This is, of course, subject to the terms of the governing legislation.
Calculations
14.4Tribunals must not abdicate the details of a decision to the decision-maker. However, the tribunal may properly refer matters of calculation to the decision-maker.
2R(SB) 16/83 at [21]. This is provided that: (i) the basis for the calculation is clear from the tribunal’s decision; (ii) the tribunal gives power to refer any dispute over the calculation back to the tribunal. This is, of course, subject to the terms of the governing legislation.
Standard notices and precedents
14.5The tribunal may provide standard notices for completion or standard forms of words to assist judges to record the decision correctly. Alternatively, judges may devise their own. Whatever their provenance, standard notices and precedents should help to ensure that all relevant matters are recorded. Uniformity should help to avoid any doubt that might arise from different formulations by different judges.
Public document
14.6A decision is a public document.
3Solihull Metropolitan Borough Council Housing Benefit Review Board v Simpson (1994) 27 HLR 41 at 47. The case concerned the decision of the Board, but the legislation in question was in equivalent terms to those used in the rules of procedure under TCEA. And see Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 at 1070.Public judgment under article 6
14.7Article 6(1) provides:
… Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
14.8The European Court of Human Rights has not given a literal interpretation to the requirement that judgment
shall be pronounced publicly. In
Pretto v Italy,
4(1983) 6 EHRR 182. it took account of the variation in practice among States, as shown in the preparatory documents for the Convention. It decided:
5(1983) 6 EHRR 182 at [26].The Court therefore does not feel bound to adopt a literal interpretation. It considers that in each case the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6(1).
Later, it set out the object of the provision as being:
6(1983) 6 EHRR 182 at [27].… to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial …
It took account of the nature of the proceedings in deciding that article 6(1) was satisfied if the judgment was publicly available:
7(1983) 6 EHRR 182 at [27].… at any rate in cassation proceedings [which are limited to issues of law], no less achieved by a deposit in the court registry, making the full text available to everyone, than by a reading in open court of a decision dismissing an appeal or quashing a previous judgment, such reading sometimes being limited to the operative provisions.
14.9
Axen v Germany8(1983) 6 EHRR 195. also concerned cassation-style proceedings.
9But see the concurring opinion: (1983) 6 EHRR 195 at 203. An appeal had been rejected as ill-founded without an oral hearing and in a decision that was served only on the parties. The Court held that this was sufficient in view of ‘the course of the proceedings taken as a whole’.
10(1983) 6 EHRR 195 at [32]. One feature of those proceedings was that the decision under appeal had been pronounced publicly.
11(1983) 6 EHRR 195 at [28]. Moser v Austria [2007] 1 FLR 702 at [99]–[104] is an example of a case in which the European Court on Human Rights held that judgment had not been publicly pronounced.14.10Publicity given to a judgment must not frustrate the legitimate purpose of holding some proceedings, or parts of proceedings, in private. In order to prevent this, it may be permissible for no publicity to be given or for the terms of the judgment to be anonymised.
12See P v BW [2004] Fam 22 at [60] and the decision of the European Court of Human Rights in B v United Kingdom cited at [54]–[57].