Setting asideTimes 29 February
Terminology
15.26Setting aside may refer to the result of a procedure that has the effect of cancelling a decision or it may refer to a particular procedure. In this section, it refers to the procedure by which a tribunal’s decision may be set aside for procedural deficiencies. A consent order is a decision for this purpose.
1R (LR by ER) v FfT (HESC) and Hertfordshire CC [2012] UKUT 213 (AAC) at [21]–[31].Authority
15.27Tribunals do not have an inherent power to set aside their decisions.
2Sedley LJ in Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 at 2301. This must be authorised by statute. The TCEA Sch 5 para 15 authorises rules of procedure for correcting accidental errors and setting aside decisions:
(1)Rules may make provision for the correction of accidental errors in a decision or record of a decision.
(2)Rules may make provision for the setting aside of a decision in proceedings before the First-tier Tribunal or Upper Tribunal–
(a)where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative;
(b)where a document relating to the proceedings was not sent to the First-tier Tribunal or Upper Tribunal at an appropriate time;
(c)where a party to the proceedings, or a party’s representative, was not present at a hearing related to the proceedings; or
(d)where there has been any other procedural irregularity in the proceedings.
(3)Sub-paragraphs (1) and (2) shall not be taken to prejudice, or to be preju-diced by, any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of those sub-paragraphs.
15.28UTR r43(1) to (3) is illustrative:
3See also: GRC Rules r41; HESC Rules r45; IAC Rules r32; Lands Rules r54; PC Rules r51; SEC Rules r37; Tax Rules r38; WPAFC Rules r35.(1)The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if–
(a)the Upper Tribunal considers that it is in the interests of justice to do so; and
(b)one or more of the conditions in paragraph (2) are satisfied.
(2)The conditions are–
(a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
(b)a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;
(c)a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d)there has been some other procedural irregularity in the proceedings.
(3)Except where paragraph (4) applies, a party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 1 month after the date on which the Upper Tribunal sent notice of the decision to the party.
Initiating the process
15.29The process may be initiated by an application from a party under rule 43(3). There is no express authority for, or prohibition on, the tribunal acting of its own initiative. This power may be implied, as it would be consistent with the enabling power in that respect under TCEA Sch 5 para 6.
Who may exercise the power
15.30The power is conferred on the tribunal. The composition and constitution of the tribunal will be governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 and practice statements issued thereunder. The power has not been confined to a tribunal of the same constitution as made the decision. It is not within the Senior President’s practice statements on the delegation.
4See chapter 7.The scope of the power
15.31The power is limited to the procedural deficiencies set out in paragraph (2). In addition, the power can only be exercised if the tribunal considers it is in the interests of justice to do so under paragraph (1)(a). The power must also be interpreted and applied in the context of the overriding objective.
15.32The default position is that a party who has been deprived of an oral hearing by some mishap is entitled to have the decision set aside so that a hearing can be held.
5Grimshaw v Dunbar [1953] 1 QB 408. It is relevant to consider: (i) why the party did not attend the hearing; (ii) the length of, and the reasons for, any delay in applying for the decision to be set aside; and (iii) whether the other party would be prejudiced if the decision were set aside and the case reheard.
15.33The power is limited to procedural errors;
6Tager v Commissioners for Her Majesty’s Revenue and Customs [2015] UKUT 663 (TCC) at [18]. it does not allow a decision to be set aside for matters that relate to the substance of the decision.
7R (LR by ER) v FfT (HESC) and Hertfordshire CC [2012] UKUT 213 (AAC) at [47]. The Employment Appeal Tribunal came to this conclusion on the basis of the respective roles of the industrial tribunal’s power of review (set aside) and an appeal.
8Trimble v Supertravel Ltd [1982] ICR 440 at 442. The Commissioners also limited set aside powers to procedural matters by reasoning from the scope of the enabling power.
9R(U) 3/89 at [24] of the Appendix to the decision.Other powers of set aside
15.34The TCEA Sch 5 para 15(3) preserves other powers to set aside a decision. Those powers are as follows.
15.35A decision may be set aside if obtained by fraud of, or procured by, a party to the proceedings.
10Taylor v Lawrence [2003] QB 528 at [26]; Cinpres Gas Injection Ltd v Melea Ltd (2008) Times 29 February.15.36The Upper Tribunal has the same powers, rights, privileges and authority as the High Court in respect of the attendance and examination of witnesses, the production and inspection of documents, and all other matters incidental to the Upper Tribunal’s functions (s25(1)). These may include more extensive powers to set aside decisions.
15.37The review procedure under TCEA provides for setting aside a decision, including for procedural deficiencies. However, the scope of this power is limited by the rules of procedure.
11See above.15.38All these set aside powers are additional to the power to set aside a decision on appeal for error of law.
12R(SB) 23/83 at [3]. So, the Upper Tribunal may set aside a decision on that ground even if the First-tier Tribunal has refused to exercise its set aside powers on the same facts.