The Tribunal Procedure (Upper Tribunal) Rules 2008

Rule 24(1)

[F1 SCHEDULE 1 Procedure after the notice of appeal in appeals against decisions of traffic commissioners

Textual Amendments

F1 Sch. 1 inserted (1.9.2009) by The Tribunal Procedure (Amendment No. 2) Rules 2009 (S.I. 2009/1975), rules 1, 22

1.   This Schedule applies to an appeal against the decision of a traffic commissioner.

2.   The only parties to the appeal are the appellant and any person added as a party under rule 9 [F2 (addition, substitution and removal of parties)] .

Textual Amendments

F2 Words in Sch. 1 para. 2 substituted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 11

3.   On receipt of a copy of a notice of appeal under rule 23(6)(b), the traffic commissioner must send to the Upper Tribunal a copy (and, on request, further copies) of—

(a) a written record of the decision appealed against and reasons for the decision;

(b) all documents produced to the traffic commissioner in connection with the decision;

(c) if a public inquiry was held, the transcript of the inquiry or, if no such transcript was produced, the traffic commissioner’s note of the inquiry; and

(d) in an appeal under section 50 of the Public Passenger Vehicles Act 1981 or section 37 of the Goods Vehicles (Licensing of Operators) Act 1995, a list of the names and addresses of objectors and representors.

4.   On receipt of a list under paragraph 3(d) the Upper Tribunal must send a copy of the notice of appeal—

(a) where the appellant had applied for, or for the variation of, an operator’s licence, to each person who made an objection to the application;

(b) where the appellant had made an objection to an application for, or (in the case of a goods vehicle operator’s licence) for the variation of, an operator’s licence, to the person who made the application and to every other person who made an objection to the application; and

(c) in an appeal under section 37(5) of the Goods Vehicles (Licensing of Operators) Act 1995, each person who made representations under section 12(4) or 19(2) of that Act against the application for, or for the variation of, the operator’s licence in question.

5.   The appropriate national authority and any person to whom the Upper Tribunal has sent a copy of the notice of appeal under paragraph 4 may apply for a direction under rule 9(2) adding them as a respondent.

6.   An application under paragraph 5 must be sent or delivered to the Upper Tribunal so that it is received within 14 days of the date that the Upper Tribunal sent a copy of the notice of appeal to the person making the application.

7.   If a person specified in paragraph 8 makes an application in accordance with paragraphs 5 and 6, the Upper Tribunal must give a direction under rule 9(2) adding that person as a respondent.

8.   The persons specified for the purposes of paragraph 7 are—

(a) the appropriate national authority;

(b) an objector who was sent a copy of the notice of appeal under paragraph 4(a) or (b); and

(c) a person who made an application and was sent a copy of the notice of appeal under paragraph 4(b).

9.   The Upper Tribunal must notify each other party of any application under paragraph 5 and the Upper Tribunal’s decision in respect of each such application.

10.   Any party may make a request to the Upper Tribunal for copies of specified documents provided by the traffic commissioner under paragraph 3.

11.   On receiving a request under paragraph 10 the Upper Tribunal—

(a) must provide the requested copies unless it considers the request unreasonable; and

(b) if it considers the request unreasonable, give details of why it considers the request unreasonable.]

Rule 26A(4)

[F3 SCHEDULE 2 Additional procedure in national security certificate cases

Textual Amendments

F3 Sch. 2 inserted (18.1.2010) by The Tribunal Procedure (Amendment) Rules 2010 (S.I. 2010/43), rules 1, 14

1.   This Schedule applies only to national security certificate appeals.

2.   Following the transfer of the appeal from the First-tier Tribunal, the Upper Tribunal must provide a copy of the notice of appeal to the respondent, the relevant Minister and the Information Commissioner.

3.   The relevant Minister must send or deliver to the Upper Tribunal a copy of the certificate to which the appeal relates, and a response to the notice of appeal, not later than 42 days after the date on which the relevant Minister received a copy of the notice of appeal.

4.   In an appeal under section 28(4) of the Data Protection Act 1998 or section 60(1) of the Freedom of Information Act 2000 (including that subsection as applied and modified by regulation 18 of the Environmental Information Regulations 2004), the relevant Minister’s response must state whether the relevant Minister intends to oppose the appeal and, if so set out—

(a) a summary of the circumstances relating to the issue of the certificate;

(b) the reason for the issue of the certificate;

(c) the grounds on which the relevant Minister relies in opposing the appeal; and

(d) a statement of the evidence on which the relevant Minister relies in support of those grounds.

5.   In an appeal under section 28(6) of the Data Protection Act 1998 or section 60(4) of the Freedom of Information Act 2000 (including that subsection as applied and modified by regulation 18 of the Environmental Information Regulations 2004), the relevant Minister’s response must state whether the relevant Minister intends to make representations in relation to the appeal and, if so set out—

(a) the extent to which the relevant Minister intends to support or oppose the appeal;

(b) the grounds on which the relevant Minister relies in supporting or opposing the appeal; and

(c) a statement of the evidence on which the relevant Minister relies in support of those grounds.

6.   The Upper Tribunal must—

(a) subject to paragraph 11, provide the relevant Minister’s response and any other response to the appellant, the Information Commissioner and any respondent; and

(b) send a copy of any other response to the relevant Minister.

7.   On grounds of the need to ensure that information is not disclosed contrary to the interests of national security, the relevant Minster may—

(a) object to the disclosure of the relevant Minister’s response to the appellant, the Information Commissioner or any respondent, by sending a notice to the Upper Tribunal with the response; or

(b) object to the disclosure of any other response to the Information Commissioner or any respondent, by sending a notice to the Upper Tribunal within 42 days of the date on which the relevant Minister received a copy of the response.

8.   A notice under paragraph 7 must—

(a) state the reason for the objection; and

(b) in the case of a notice under paragraph 7(a) and to the extent that it is possible to do so, be accompanied by a version of the relevant Minister’s response in a form that can be shown to the appellant, the Commissioner or, as the case may be, a respondent.

9.   Before the Upper Tribunal gives a direction, issues a summons or citation, or produces or publishes a written record of, or reasons for, a decision—

(a) the Upper Tribunal must notify the relevant Minister of the proposed action; and

(b) if the relevant Minister considers that the proposal would cause information that is or would be exempt by virtue of a provision in Part 2 of the Freedom of Information Act 2000 to be disclosed, the relevant Minister may object to the proposal by sending a notice to the Upper Tribunal [F4 so that the Upper Tribunal receives the notice within 14 days of the date that the Minister received notice of the proposal].

Textual Amendments

F4 Words in Sch. 2 para. 9(b) inserted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 12

10.   When deciding whether to uphold an objection made by the relevant Minister—

(a) any hearing must take place in the absence of the parties;

(b) if the Upper Tribunal is minded to overrule the relevant Minister’s objection, or to require the relevant Minister to provide a version of the relevant Minister’s response in a form other than one provided under paragraph 8(b) above, the Upper Tribunal must invite the relevant Minister to make representations; and

(c) if the Upper Tribunal overrules an objection in relation to the disclosure of a response, the Tribunal must not disclose, or require the relevant Minister to disclose, any material the subject of the objection unless the relevant Minister relies upon that material in opposing the appeal.

11.   Where the relevant Minister may object to the disclosure of a response or proposed action by the Upper Tribunal, the Upper Tribunal may not proceed with that disclosure or that proposed action unless—

(a) the time for the relevant Minister to object has expired; and

(b) the relevant Minister has not objected, or the Tribunal has overruled the relevant Minister’s objection and, in the case of the disclosure of a response, may proceed with the disclosure under paragraph 10(c).]

Rule 26B

[F5 SCHEDULE 3 Procedure in financial services cases

Textual Amendments

F5 Sch. 3 inserted (6.4.2010) by The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2010 (S.I. 2010/747), rules 1, 13

Interpretation

1.   In this Schedule—

“further material” means documents which—

(a)

were considered by the respondent in reaching or maintaining the decision to give the notice in respect of which the reference has been made; or

(b)

were obtained by the respondent in connection with the matter to which that notice relates (whether they were obtained before or after giving the notice) but which were not considered by it in reaching or maintaining that decision;

but does not include documents on which the respondent relies in support of the referred action;

“reference notice” means the written notice required in making a reference in a financial services case;

“referred action” means the act (or proposed act) on the part of the respondent that gave rise to the reference; and

“the 2000 Act” means the Financial Services and Markets Act 2000.

Reference notice

2.— (1) A reference notice must be signed by or on behalf of the applicant and sent or delivered by the applicant to the Upper Tribunal.

(2) A reference notice must be received by the Upper Tribunal no later than 28 days after notice was given of the decision in respect of which the reference is made.

(3) The reference notice must state—

(a) the name and address of the applicant;

(b) the name and address of the applicant’s representative (if any);

(c) if no representative is named under sub-paragraph (b), an address where documents for the applicant may be sent or delivered; and

(d) the issues that the applicant wishes the Upper Tribunal to consider.

(4) The applicant must send or deliver to the Upper Tribunal with the reference notice a copy of the notice of the decision in respect of which the reference has been made.

(5) At the same time the applicant must send a copy of the reference notice to the respondent.

Register of references and decisions

3.— (1) The Upper Tribunal must keep a register of references and decisions in financial services cases.

(2) The register must be open to inspection by any person without charge and at all reasonable hours.

(3) The Upper Tribunal may direct that the register is not to include particulars of a reference if it is satisfied that it is necessary to do so having regard in particular to any unfairness to the applicant or prejudice to the interests of consumers that might otherwise result.

(4) Upon receiving a reference notice, the Upper Tribunal must—

(a) subject to any direction given under sub-paragraph (3), enter particulars of the reference in the register; and

(b) notify the parties either that it has done so or that it will not include particulars in the register, as the case may be.

Respondent’s statement of case

4.— (1) The respondent must send or deliver a written statement (“a statement of case”) in support of the referred action so that it is received by the Upper Tribunal no later than 28 days after the day on which the respondent received from the Upper Tribunal the notification required by paragraph 3(4)(b).

(2) The statement of case must—

(a) identify the statutory provisions providing for the referred action;

(b) state the reasons for the referred action; and

(c) set out all the matters and facts upon which the respondent relies to support the referred action.

(3) The respondent must provide with the statement of case a list of—

(a) any documents on which the respondent relies in support of the referred action; and

(b) any further material which in the opinion of the respondent might undermine the decision to take that action.

(4) At the same time as it sends or delivers the statement of case, the respondent must send to the applicant a copy of the statement of case and of the list referred to in sub-paragraph (3).

Applicant’s reply

5.— (1) The applicant must send or deliver a written reply so that it is received by the Upper Tribunal no later than 28 days after—

(a) the date on which the applicant received a copy of the statement of case; or

(b) if the respondent amends its statement of case, the date on which the applicant received a copy of the amended statement of case.

(2) The reply must—

(a) state the grounds on which the applicant relies in the reference;

(b) identify all matters contained in the statement of case which are disputed by the applicant; and

(c) state the applicant’s reasons for disputing them.

(3) The applicant must send with the reply a list of all the documents on which the applicant relies in support of his case.

(4) At the same time the applicant must send to the respondent a copy of the reply and of the list referred to in sub-paragraph (3).

Secondary disclosure by the respondent

6.— (1) After the applicant’s reply has been sent or delivered, if there is any further material which might reasonably be expected to assist the applicant’s case as disclosed by the applicant’s reply and which is not listed in the list provided in accordance with paragraph 4(3), the respondent must send or deliver to the Upper Tribunal a list of such further material.

(2) Any list required to be sent or delivered by sub-paragraph (1) must be sent or delivered so that it is received no later than 14 days after the day on which the respondent received the applicant’s reply.

(3) At the same time as it sends or delivers any list required by sub-paragraph (1) the respondent must send a copy to the applicant.

Exceptions to disclosure

7.— (1) A list provided in accordance with paragraph 4(3) or 6(1) need not include any document that relates to a case involving a person other than the applicant which was taken into account by the respondent in the applicant’s case only for the purposes of comparison with other cases.

(2) A list provided in accordance with paragraph 4(3), 5(3) or 6(1) need not include any document that is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000.

(3) A list provided in accordance with paragraph 4(3), 5(3) or 6(1) need not include any document in respect of which an application has been or is being made under sub-paragraph (4).

(4) A party may apply to the Upper Tribunal (without giving notice to any other party) for a direction authorising the party making the application not to include in the list required by paragraph 4(3), 5(3) or 6(1) a document on the ground that disclosure of the document—

(a) would not be in the public interest; or

(b) would not be fair, having regard to—

(i) the likely significance of the document to the applicant in relation to the matter referred to the Upper Tribunal; and

(ii) the potential prejudice to the commercial interests of a person other than the applicant which would be caused by disclosure of the document.

(5) For the purpose of deciding an application by a party under sub-paragraph (4), the Upper Tribunal may—

(a) require the document to be produced to the Upper Tribunal together with a statement of the reasons why its inclusion in the list would—

(i) in the case of an application under sub-paragraph (4)(a), not be in the public interest; or

(ii) in the case of an application under sub-paragraph (4)(b), not be fair; and

(b) invite any other party to make representations.

(6) If the Upper Tribunal refuses an application under sub-paragraph (4), it must direct the party—

(a) to revise its list so as to include the document; and

(b) to send or deliver a copy of the revised list to the Upper Tribunal and to any other party.

(7) A party who has sent or delivered a list under paragraph 4(3), 5(3) or 6(1) must, upon the request of another party, provide that other party with a copy of any document specified in the list or make any such document available to that party for inspection or copying.

(8) Sub-paragraph (7) does not apply to any document that is a protected item.

(9) In this paragraph “protected item” has the meaning provided by section 413 of the 2000 Act, section 311(2) of the Pensions Act 2004 or article 283(2) of the Pensions (Northern Ireland) Order 2005.

Subsequent notices in relation to the referred action

8.   Where, after a reference notice has been sent or delivered, the respondent gives the applicant any further, amended or supplementary notice in relation to the referred action, the respondent must without delay send or deliver a copy of that notice to the Upper Tribunal.

References by third parties

9.— (1) In the case of any reference made by an applicant under section 393 of the 2000 Act (third party rights) these rules apply subject to the modifications set out in this paragraph.

(2) In this paragraph—

(a) if the reference was made under section 393(9) of the 2000 Act (reference to the Upper Tribunal by a third party to whom a decision notice was copied), the notice of the decision in respect of which the reference has been made is the decision notice which was copied to the applicant by the respondent; and

(b) if the reference was made under section 393(11) of the 2000 Act (reference to the Upper Tribunal by a third party who alleges that they were not given a copy of a decision notice), the notice of the decision in respect of which the reference has been made is the decision notice which the applicant alleges was not copied to them.

(3) If the reference was made under section 393(11) of the 2000 Act, paragraph 2(4) does not apply.

(4) The duties of the respondent to set out information under paragraph 4(2) or to list material under paragraph 4(3) or 6(1) apply only to information, documents or material which relate to the matters referred to the Upper Tribunal in accordance with section 393(9) or (as the case may be) section 393(11) of the 2000 Act.]