The Upper Tribunal for Scotland (Rules of Procedure) Regulations 2016

Made: 17th August 2016

Laid before the Scottish Parliament: 19th August 2016

Coming into force: 1st December 2016

In accordance with paragraph 4(3) of schedule 9 of that Act, the Scottish Ministers have consulted the President of Tribunals and such other persons as they considered appropriate.

Citation and commencement

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• (1) These Regulations may be cited as the Upper Tribunal for Scotland (Rules of Procedure) Regulations 2016 and the Rules contained in the schedule may be cited as the Upper Tribunal for Scotland Rules of Procedure 2016.

• (2) These Regulations come into force on 1st December 2016.

Application of Rules in schedule

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The Rules in the schedule of these Regulations apply to all proceedings before the Upper Tribunal.

SCHEDULE — The Upper Tribunal for Scotland Rules of Procedure 2016

PART 1 — Interpretation

Interpretation

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In these Rules—

• “the 2014 Act” means the Tribunals (Scotland) Act 2014;

• “Appeal Appendix” means all the documents and authorities to be relied on for the purpose of the appeal along with an inventory;

• “appellant” means— a person who makes an appeal to the Upper Tribunal; a person who has had an application to the First-tier Tribunal transferred to the Upper Tribunal; or in any case, a person substituted as an appellant under rule 11(1) (addition, substitution and removal of parties);

• “Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998[^f00002];

• “document” means anything in which information is recorded in any form;

• “excluded decision” means a decision referred to in section 51 of the 2014 Act;

• “hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;

• “interested party” means a person other than the appellant or respondent on whom the First-tier Tribunal has ordered the proceedings before it to be served;

• “party” means a person who is (or was at the time that the Upper Tribunal disposed of the proceedings) an appellant or respondent in proceedings before the Upper Tribunal;

• “practice direction” means a practice direction issued in terms of section 74 of the 2014 Act;

• “President” means the President of Tribunals;

• “proceedings” includes, unless indicated otherwise, a part of the proceedings;

• “respondent” means— in an appeal against a decision of the First-tier Tribunal, that tribunal and any person other than the appellant who— was a party before the First-tier Tribunal; otherwise has a right of appeal against the decision of the First-tier Tribunal and has given notice to the Upper Tribunal that they wish to be a party to the appeal; in proceedings transferred or referred to the Upper Tribunal from the First-tier Tribunal, a person who was a respondent in the proceedings in the First-tier Tribunal; or in any case, a person substituted or added as a respondent under rule 11 (addition, substitution and removal of parties);

• “review period” means the time period between an application by a party for a review under rule 30(1), or, as the case may be, the Upper Tribunal’s decision to review a decision under that rule, and the receipt by a party of a notification under rule 30(6); and

• “witness statement” means a written statement of a witness ordered by the Upper Tribunal to stand for the evidence-in-chief of the witness.

PART 2 — Role of The Upper Tribunal

Purpose of the Upper Tribunal

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The Upper Tribunal hears and decides cases transferred or referred to it from the First-tier Tribunal and hears and decides appeals from the First-tier Tribunal.

PART 3 — Procedure for Cases in the Upper Tribunal

Notice of appeal against a decision of the First-tier Tribunal

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• (1) A person may lodge with the Upper Tribunal a notice of appeal against a decision of the First-tier Tribunal.

• (2) A notice of appeal must —

• (a) identify the decision of the First-tier Tribunal to which it relates; and

• (b) identify the alleged error or errors of law in the decision.

• (3) The appellant must provide with the notice of appeal a copy of—

• (a) any written record of the decision being challenged;

• (b) any separate written statement of reasons for that decision; and

• (c) the notice of permission to appeal or alternatively notice of refusal of permission to appeal from the First-tier Tribunal.

• (4) When the Upper Tribunal receives a notice of appeal it must send a copy of the notice and any accompanying documents to each respondent and interested party (if any).

• (5) If the appellant lodges the notice of appeal with the Upper Tribunal later than the time required by paragraph (9)—

• (a) the notice of appeal must:

• (i) include a request for an extension of time;

• (ii) explain why the notice of appeal was not provided in time; and

• (iii) state why it is said to be in the interests of justice that the time be extended; and

• (b) unless the Upper Tribunal extends the time for lodging a notice of appeal the Upper Tribunal may not admit the notice of appeal.

• (6) The Upper Tribunal may, where the First-tier Tribunal has refused permission to appeal—

• (a) refuse permission to appeal;

• (b) give permission to appeal; or

• (c) give permission to appeal on limited grounds or subject to conditions;

and must send a notice of its decision to each party and any interested party including reasons for any refusal of permission or limitations or conditions on any grant of permission.

• (7) Where the Upper Tribunal, without a hearing—

• (a) refuses permission to appeal; or

• (b) gives permission to appeal on limited grounds or subject to conditions,

the appellant may make a written application (within 14 days after the day of receipt of notice of the decision) to the Upper Tribunal for the decision to be reconsidered at a hearing.

• (8) An application under paragraph (7) must be heard and decided by a member or members of the Upper Tribunal different from the member or members who refused permission without a hearing.

• (9) Where the First-tier Tribunal sends a notice of permission or refusal of permission to appeal to a person who has sought permission to appeal, that person, if intending to appeal, must provide a notice of appeal to the Upper Tribunal within 30 days after the day of receipt by that person of the notice of permission or refusal of permission to appeal.

Response to the notice of appeal

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• (1) Subject to any order given by the Upper Tribunal, a respondent may provide a written response to a notice of appeal.

• (2) Any response provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received no later than 30 days after the day on which the Upper Tribunal sent a copy of the notice of appeal to the respondent.

• (3) The response must state—

• (a) the name and address of the respondent;

• (b) the name and address of the representative (if any) of the respondent;

• (c) an address where documents for the respondent may be sent or delivered;

• (d) whether the respondent opposes the appeal;

• (e) the grounds on which the respondent relies, including (in the case of an appeal against the decision of the First-tier Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal; and

• (f) whether the respondent consents to the case being heard without a hearing.

• (4) If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 7(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time.

• (5) When the Upper Tribunal receives the response it must send a copy of the response and any accompanying documents to the appellant and any interested party.

Appellant’s reply

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• (1) Subject to any order given by the Upper Tribunal, the appellant may provide a written reply to any response provided under rule 4 (response to the notice of appeal).

• (2) Any reply provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within 30 days after the day on which the Upper Tribunal sent a copy of the response to the appellant.

• (3) If the appellant provides the reply to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 7(3)(a) (power to extend time), the reply must include a request for an extension of time and the reason why the reply was not provided in time.

• (4) When the Upper Tribunal receives the reply it must send a copy of the reply and any accompanying documents to each respondent and interested party (if any).

Cases transferred or referred to the Upper Tribunal

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• (1) Paragraphs (2) and (3) apply to a case transferred or referred to the Upper Tribunal from the First-tier Tribunal.

• (2) In such a case—

• (a) the Upper Tribunal must give orders as to the procedure to be followed in the consideration and disposal of the proceedings;

• (b) the preceding rules in this Part will only apply to the proceedings to the extent provided for by such orders.

• (3) If a case or matter is to be determined without notice to or the involvement of a respondent—

• (a) any provision in these Rules requiring a document to be provided by or to a respondent; and

• (b) any other provision in these Rules permitting a respondent to participate in the proceedings,

does not apply to that case or matter.

PART 4 — General Powers and Provisions

Case management

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• (1) Subject to the provisions of the 2014 Act and these Rules, the Upper Tribunal may regulate its own procedure.

• (2) The Upper Tribunal may give an order in relation to the conduct of proceedings before it at any time, including an order amending, suspending or setting aside an earlier order.

• (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may—

• (a) extend or shorten the time for complying with any rule or order;

• (b) conjoin or take concurrently two or more sets of proceedings or parts of proceedings raising common issues;

• (c) specify one or more cases as a lead case or lead cases where—

• (i) two or more cases are before the Upper Tribunal;

• (ii) in each such case the proceedings have not been finally determined; and

• (iii) the cases give rise to common or related issues of fact or law,

and sist the other cases until the common or related issues have been determined;

• (d) permit or require a party to amend a document;

• (e) permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;

• (f) deal with an issue in the proceedings as a preliminary issue;

• (g) hold a hearing to consider any matter, including a case management issue;

• (h) decide the form of any hearing;

• (i) adjourn or postpone a hearing;

• (j) require a party to produce or lodge documents including but not confined to a note of argument and the Appeal Appendix;

• (k) sist proceedings;

• (l) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—

• (i) because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or

• (ii) the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;

• (m) suspend the effect of its own decision pending an appeal of that decision;

• (n) in an appeal against the decision of the First-tier Tribunal, suspend the effect of that decision pending the determination of any permission to appeal or any appeal;

• (o) require the First-tier Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before the First-tier Tribunal.

Procedure for applying for and giving orders

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• (1) The Upper Tribunal may give an order on the application of one or more of the parties or on its own initiative.

• (2) An application for an order may be made—

• (a) by sending or delivering a written application to the Upper Tribunal; or

• (b) orally during the course of a hearing.

• (3) An application for an order must include the reason for making that application.

• (4) Before making an order, the Upper Tribunal must afford parties an opportunity to make representations to it concerning whether the order should be imposed and the terms of the order.

Failure to comply with rules etc.

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• (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or an order, does not of itself render void the proceedings or any step taken in the proceedings.

• (2) If a party has failed to comply with a requirement in these Rules, a practice direction or an order, the Upper Tribunal may take such action as it considers just, which may include—

• (a) waiving the requirement;

• (b) requiring the failure to be remedied; or

• (c) exercising its power under rule 10 (dismissal of a party’s case).

Dismissal of a party’s case

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• (1) The Upper Tribunal must dismiss the whole or a part of the proceedings if the Upper Tribunal—

• (a) does not have jurisdiction in relation to the proceedings or that part of them; and

• (b) does not exercise its power under rule 7(3)(l)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

• (2) The Upper Tribunal may dismiss the whole or a part of the proceedings if—

• (a) the appellant has failed to comply with an order which stated that failure by the appellant to comply with the order could lead to the dismissal of the proceedings or part of them;

• (b) the appellant has failed to co-operate with the Upper Tribunal to such an extent that the Upper Tribunal cannot deal with the proceedings fairly; or

• (c) in proceedings which have been transferred from the First-tier Tribunal, the Upper Tribunal considers there is no reasonable prospect of the appellant’s case, or any part of it, succeeding.

• (3) The Upper Tribunal may not dismiss the whole or a part of the proceedings under paragraph (1) or (2) without first giving the appellant an opportunity to make representations in relation to the proposed dismissal.

Addition, substitution and removal of parties

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• (1) The Upper Tribunal may give an order adding, substituting or removing a party as an appellant or a respondent including where—

• (a) the wrong person has been named as a party; or

• (b) the addition, substitution or removal has become necessary because of a change in circumstances since the start of proceedings.

• (2) If the Upper Tribunal gives an order under paragraph (1) it may give such consequential orders as it considers appropriate.

• (3) A person who is not a party may make a written application to the Upper Tribunal to be added or substituted as a party under this rule.

• (4) If the Upper Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the Upper Tribunal.

Orders for expenses

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• (1) The Upper Tribunal may make an order for expenses as taxed by the Auditor of the Court of Session in proceedings on appeal from the First-tier Tribunal if the First-tier Tribunal had the power to make an order for expenses, and only on the basis on which the First-tier Tribunal had the power to award expenses.

• (2) Notwithstanding paragraph (1) and without prejudice to that paragraph, the Upper Tribunal may make an order for expenses as taxed by the Auditor of the Court of Session against a party if that party’s act, omission or other conduct has caused any other party to incur expense which it would be unreasonable for that other party to be expected to pay, with the maximum recoverable expenses being the expenses incurred.

• (3) The Upper Tribunal, of its own initiative or on the application of a party or the parties, may in exceptional circumstances fix by order a sum payable by a party in discharge of an award of expenses.

Representatives

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• (1) A party may be represented in any proceedings by a legal representative or lay representative whose details must be communicated to the Upper Tribunal prior to any hearing.

• (2) A party may show any document or communicate any information about the proceedings to that party’s lay representative or legal representative without contravening any prohibition or restriction on disclosure of the document or information.

• (3) Where a document or information is disclosed under paragraph (2), the lay representative or legal representative is subject to any prohibition or restriction on disclosure in the same way that the party is.

• (4) Anything permitted or required to be done by a party under these Rules, a practice direction or an order may be done by a lay representative, except signing of an affidavit or a precognition.

• (5) The Upper Tribunal may order that a lay representative is not to represent a party if—

• (a) it is of the opinion that the lay representative is an unsuitable person to act as a lay representative (whether generally or in the proceedings concerned); or

• (b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

Supporters

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• (1) A party who is an individual may be accompanied by another person to act as a supporter.