The Tribunal Procedure (Upper Tribunal) Rules 2008

Rule 24(1)

[F1SCHEDULE 1Procedure after the notice of appeal in [F2road transport cases]

1.  This Schedule applies to [F3road transport cases].

2.  The only parties to the appeal are the appellant and any person added as a party under rule 9 [F4(addition, substitution and removal of parties)] .

3.  On receipt of a copy of a notice of appeal under rule 23(6)(b), the [F5decision maker] 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 [F5decision maker] 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 [F5decision maker’s] note of the inquiry; and

[F6(d)in an appeal under—

(i)section 50 of the Public Passenger Vehicles Act 1981 or section 37 of the Goods Vehicles (Licensing of Operators) Act 1995, or

(ii)section 35 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010,

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; F7...

(c)in an appeal under section 37(5) of the Goods Vehicles (Licensing of Operators) Act 1995, [F8to] 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.

[F9(d)in an appeal under section 35(5) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010, to each person who made representations under section 11(4) or 18(2) of that Act.]

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 F10... 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.

F118.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 [F12decision maker] 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)

[F13SCHEDULE 2Additional procedure in national security certificate cases

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 [F14so that the Upper Tribunal receives the notice within 14 days of the date that the Minister received notice of the proposal].

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 [F15Upper] 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 [F16Upper] 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

[F17SCHEDULE 3Procedure in financial services cases

Interpretation

1.  In this Schedule—

[F18“further material” means—

[F19“multiple regulator case” means a case where—

[F19“primary regulator” means, in a multiple regulator case, the regulator giving the notice;]

[F19“secondary regulator action” means an action taken by a secondary regulator, as stated in the notice given by the primary regulator;]

[F19“secondary regulator” means, in a multiple regulator case, a regulator specified in the notice other than the primary regulator;]

[F19“single regulator case” means a case that is not a multiple regulator case;]

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

[F20“referred action” means—

“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.

[F21(5) At the same time the applicant must send a copy of the reference notice—

(a)in a single regulator case, to the respondent; and

(b)in a multiple regulator case, to each of the primary and secondary regulators.]

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.

[F22(5) In a multiple regulator case, notification under sub-paragraph (4)(b) must be given to each of the primary and secondary regulators.]

[F23Respondent’s statement of case in a single regulator case]

4.—(1) The respondent [F24in a single regulator case] 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).

[F25Respondents’ statements of case in a multiple regulator case

4A.—(1) This paragraph applies in a multiple regulator case.

(2) The primary regulator must send or deliver either—

(a)a written statement (a “statement of case”) in support of the referred action; or

(b)a written notification that it does not itself advance a 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 primary regulator received from the Upper Tribunal the notification required by paragraph 3(4)(b).

(3) A primary regulator providing a written notification under sub-paragraph (2)(b) must send or deliver a copy to the secondary regulator and the applicant and upon so doing—

(a)the primary regulator shall not be required to take further steps in the proceedings unless the Upper Tribunal gives a direction to the contrary under rule 6; and

(b)the respondent shall be the secondary regulator unless the Upper Tribunal orders otherwise.

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

(5) A statement of case must—

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

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

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

(6) A regulator must provide with the statement of case a list of—

(a)all documents on which it relies in support of the referred action;

(b)any further material which, in the opinion of the regulator, might undermine its decision to—

(i)in the case of a primary regulator; take the referred action; and

(ii)in the case of a secondary regulator; take the secondary regulator action.

(7) The primary regulator and the secondary regulator must send to the applicant and the other regulator a copy of any statement of case required by sub-paragraphs (2) and (4) above and of the list referred to in sub-paragraph (6).]

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—

[F26(a)in a single regulator case, on the date on which the applicant received a copy of the statement of case;]

[F26(aa)in a multiple regulator case, on the first date on which the applicant was in receipt of all the statements and, where relevant, notifications required under paragraphs 4A(2) and 4A(4); or]

(b)if [F27a 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 [F28the respondent’s statement of case (or, where applicable, respondents’ statements of case)] which are disputed by the applicant; F29...

(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 [F30all other parties] a copy of the reply and of the list referred to in sub-paragraph (3).

[F31(5) Where the primary regulator has provided a written notification under paragraph 4A(2)(b), if the applicant wishes the Tribunal to direct that further steps in the proceedings be taken by the primary regulator, an application must be made at the time of sending the reply.]

Secondary disclosure by [F32a 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 [F33(or lists)] provided in accordance with paragraph 4(3) [F34(or paragraph 4A(6) where applicable)], the respondent [F35(or the respondents)] must send or deliver to the Upper Tribunal a list [F36(or lists)] 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 [F37in question] received the applicant’s reply.

(3) At the same time as it sends or delivers any list required by sub-paragraph (1) [F38a respondent must send a copy to the applicant (and where applicable the other parties)].

Exceptions to disclosure

7.—(1) A list provided in accordance with paragraph 4(3)[F39, 4A(6)] 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 [F40providing the list] in the applicant’s case only for the purposes of comparison with other cases.

(2) A list provided in accordance with paragraph 4(3)[F41, 4A(6)], 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)[F42, 4A(6)], 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)[F43, 4A(6)], 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.

[F44(7) A party (“P”) who has sent or delivered a list under paragraph 4(3), 4A(6), 5(3) or 6(1) must, upon the request of another party, provide that other party with a copy of any document which P has which is specified in the list, or make it available for inspection or copying, and if P does not have it, tell the other party where to the best of P’s knowledge and belief it may be found.]

(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, [F45a respondent] gives the applicant any further, amended or supplementary notice in relation to the referred action, [F46that 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 [F47that gave the notice]; 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.

[F48(4) The duties of a respondent to—

(a)set out information under paragraphs 4(2), 4A(2), 4A(4) or 4A(5); or

(b)list material under paragraphs 4(3), 4A(6) or 6(1);

apply only to information 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.]]