Control after promulgation of final decisionTimes 27 FebruaryTimes 29 FebruaryTimes 11 April
15.1Once a decision has been promulgated, a tribunal loses jurisdiction to decide the case. Thereafter a tribunal cannot reverse its decision.
1This is a relatively modern judge-made rule designed to prevent the right of appeal being subverted: In re St Nazaire Company (1879) 12 Ch D 88; Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 at [50]. However, it retains limited powers in respect of the decision. There is a potential tension between these powers and the right of appeal.
15.2This tension was considered in the courts by Rix LJ in
Compagnie Noga D’Importation et D’Exportation SA v Abacha.
2[2001] 3 All ER 513. He quoted Arden J to the effect that it is preferable for a tribunal to correct its own errors if it can rather than leave the parties to an appeal.
3[2001] 3 All ER 513 at [44]. See also the Employment Appeal Tribunal in Trimble v Supertravel Ltd [1982] ICR 440 at 442. Arden J had overlooked a concession made during the hearing. However, if the legislation confers an express power to vary a decision, it should only be exercised in exceptional circumstances: Papanicola (as trustee in bankruptcy for Mak) v Humphreys [2005] 2 All ER 418 at [25]. But he said that it was wrong for a court to use its own powers to subvert the appeal process.
4[2001] 3 All ER 513 at [47]. Rix LJ described what was involved in that process:
… it is the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process.
15.3The tension may not be so easily resolved in the tribunals, as the tribunals’ powers of review may extend into the area of appeal as defined by Rix LJ. In this context, it may be better to consider the functions of an appeal in order to decide if the issues raised are suitable ones for an appeal to the Upper Tribunal.
The range of powers
15.4The scope of the courts’ jurisdiction once a decision has been promulgated was set out under five heads by Robert Walker LJ in
DEG-Dettsche Investitions und Entwicklungsgesellschaft mbH v Koshy:
5[2001] 3 All ER 878.It is common ground that there is no general power for the court to vary an order after it has been passed and entered. Rimer J identified four real or apparent exceptions: first, the correction of obvious errors under the slip rule; second, supplementing (rather than varying) an order; third, cases where the order itself provides for its variation; and fourth, where there is a statutory right of review by a court of co-ordinate jurisdiction (for instance under s 375 of the Insolvency Act 1986). The judge did not suggest that his list was exhaustive and there appears to be a further exception where an order requires to be worked out, and a material change of circumstances occurs before it has been worked out (see
Jordan v Norfolk County Council [1994] 1 WLR 1353 at 1358–1359).
6[2001] 3 All ER 878 at [21].15.5There are equivalent powers for tribunals under TCEA. They are dealt with in this chapter, except for the third class identified by Robert Walker LJ.
The tribunal’s powers apart from legislation
Review
15.6In
Akewushola v Secretary of State for the Home Department,
7[2000] 1 WLR 2295. Court of Appeal held that a tribunal has no inherent power of review. Sedley LJ said:
I do not think that, slips apart, a statutory tribunal – in contrast to a superior court – ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court’s jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides.
8[2000] 1 WLR 2295 at 2301.15.7This applies even if the practice of review has been accepted by the public body affected.
9R (Secretary of State for Defence) v President of the Pensions Appeal Tribunal (England and Wales) [2004] 2 All ER 159.15.8As the Upper Tribunal is a superior court of record, it may have more inherent powers by virtue of TCEA s25.
10See chapter 3.Fraud
15.9A decision may be set aside if it was obtained by fraud of, or procured by, a party to the proceedings.
11Taylor v Lawrence [2003] QB 528 at [26]; Cinpres Gas Injection Ltd v Melea Ltd (2008) Times 29 February.Reconsideration of final decisions
12For reconsideration of interlocutory decisions, see chapter 7.15.10There is an exceptional power for an appellate body to reopen a case. It first came to prominence in the Court of Appeal’s decision in
Taylor v Lawrence13[2003] QB 528. and has been extended to the High Court in both its original
14R (AM (Cameroon)) v Asylum and Immigration Tribunal [2008] 1 WLR 2062. and appellate jurisdiction.
15Seray-Wurie v Hackney London Borough Council [2003] 1 WLR 257 at [17]. The power is not appropriate to decisions that are subject to correction on appeal.
16R (AM (Cameroon)) v Asylum and Immigration Tribunal [2008] 1 WLR 2062. It is primarily concerned with cases where the litigation process has been critically undermine.
17In re Uddin (A Child) [2005] 1 WLR 2398 at [18]. The mere fact that a mistake has occurred is not exceptional or sufficient to invoke this power.
18R (Nicholas) v Upper Tribunal and Secretary of State for Work and Pensions [2013] EWCA Civ 799 at [20].The social security jurisdiction
15.11The Commissioners claimed a jurisdiction to set aside decisions that were made in procedural error. The authorities were analysed by Mr Commissioner Hallett in the Appendix to
R(U) 3/89. He called the power an inherent one and identified its source in the Commissioners’ power to control their own procedure.
19R(U) 3/88 at [5(1)]. The instances he cited covered failure to deal with requests for an oral hearing, proceedings on the erroneous assumption that the claimant was not going to submit further evidence, and breaches of natural justice like deciding a case on a point not put to the parties.
20R(U) 3/88 at [5(2)] and [6].15.12In
R(I) 7/94, a Tribunal of Commissioners said that, if a tribunal had power to reconsider a decision, it only arose on application.
21R(I) 7/94 at [35].