The Upper Tribunal for Scotland (Local Taxation Rules of Procedure) Regulations 2022

Made: 8th December 2022

Laid before the Scottish Parliament: 12th December 2022

Coming into force: 1st April 2023

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

1

• (1) These Regulations may be cited as the Upper Tribunal for Scotland (Local Taxation Rules of Procedure) Regulations 2022 and the Rules contained in schedule 1 may be cited as the Upper Tribunal for Scotland Local Taxation Rules of Procedure 2022.

• (2) These Regulations come into force on 1 April 2023.

Disapplication of the Upper Tribunal for Scotland Rules 2016

2

The Upper Tribunal for Scotland Rules of Procedure 2016[^f00002] do not apply to proceedings before the Upper Tribunal when the Upper Tribunal is exercising functions under section 1(3A) or (3BA) of the Lands Tribunal Act 1949[^f00003] (“the 1949 Act”).

Application of Rules in schedule 1

3

The Rules in schedule 1 of these Regulations apply to all proceedings before the Upper Tribunal when exercising functions under section 1(3A) or (3BA) of the 1949 Act.

Application of fees in schedule 2

4

The fees specified in schedule 2—

• (a) apply to the proceedings before the Upper Tribunal specified in regulation 3,

• (b) are payable to the Upper Tribunal in respect of the matters specified in that schedule.

Form of appeal referral: schedule 3

5

Schedule 3 sets out the form of notice of the referral of an appeal from the First-tier Tribunal to the Upper Tribunal under section 1(3A) of the 1949 Act.

Revocation

6

The following provisions are revoked—

• (a) Part 4 (references under section 1(3A) of the Lands Tribunal Act 1949) of the Lands Tribunal for Scotland Rules 2003[^f00004],

• (b) Items 3 and 4 of the schedule of the Lands Tribunal for Scotland (Amendment) (Fees) Rules 1996[^f00005].

SCHEDULE 1 — The Upper Tribunal for Scotland Local Taxation Rules of Procedure 2022

PART 1 — Interpretation

Interpretation

1

• (1) In these Rules—

• “the 1949 Act” means the Lands Tribunal Act 1949[^f00006],

• “the 2014 Act” means the Tribunals (Scotland) Act 2014[^f00007],

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

• “appeal” means an appeal or complaint under the Valuation Acts, and “appellant” is to be construed accordingly,

• “appellant” means—a person who makes an appeal to the Upper Tribunal,a person who has had an application to the First-tier Tribunal referred to the Upper Tribunal, ora person substituted as an appellant under rule 12 (addition, substitution and removal of parties),

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

• “electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 2000[^f00008],

• “excluded decision” means a decision falling under section 51 of the 2014 Act,

• “the First-tier Tribunal” means the First-tier Tribunal for Scotland Local Taxation Chamber,

• “the First-tier Tribunal Rules” means the rules of procedure of the First-tier Tribunal[^f00009],

• “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,

• “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,

• “the President” means the President of Tribunals,

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

• “representative” means a lay representative or a legal representative,

• “respondent” means—in an appeal against a decision of the First-tier Tribunal not to refer to the Upper Tribunal any appeal or complaint made to the committee, the First-tier Tribunal and any person other than the appellant who was a party before the First-tier Tribunal,in proceedings referred to the Upper Tribunal from the First-tier Tribunal, a person who was a respondent in the proceedings in the First-tier Tribunal, orin any case, a person substituted or added as a respondent under rule 12 (addition, substitution and removal of parties),

• “the Upper Tribunal” means the Upper Tribunal for Scotland when exercising functions under section 1(3A) or (3BA) of the 1949 Act, 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.

• (2) For the purposes of these Rules, where information is sent—

• (a) via the postal service to the last known address held for an individual, or

• (b) by email to the last known email address held for the individual,

the individual is presumed to have received the information 48 hours after it is sent, unless the contrary is shown.

PART 2 — Role of the Upper Tribunal

Purpose of the Upper Tribunal and overriding objective

2

• (1) The Upper Tribunal hears and decides appeals that have been referred to it from the First-tier Tribunal, and appeals against a decision of the First-tier Tribunal not to refer an appeal to the Upper Tribunal.

• (2) The overriding objective of these Rules is to secure that proceedings before the Upper Tribunal to which the Rules apply are handled fairly and justly.

• (3) Dealing with a case fairly and justly includes—

• (a) dealing with the case in ways which are transparent, proportionate to the importance of the case, the complexity of the issues, the anticipated expenses and the resources of the parties,

• (b) avoiding unnecessary formality and seeking flexibility in the proceedings,

• (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings and are treated with dignity and respect,

• (d) using any special expertise of the Upper Tribunal effectively, and

• (e) avoiding delay, so far as compatible with proper consideration of the issues.

• (4) The Upper Tribunal must seek to give effect to the overriding objective when it—

• (a) exercises any power under these Rules, or

• (b) interprets any rule or practice direction.

• (5) Parties must, insofar as reasonably possible—

• (a) help the Upper Tribunal to further the overriding objective, and

• (b) co-operate with the Upper Tribunal generally.

PART 3 — General Powers and Provisions

Making of references

3

An appeal may be referred to the Upper Tribunal under section 1(3A) of the 1949 Act by the First-Tier Tribunal sending to the Upper Tribunal a notice of referral together with a copy of the appeal lodged in accordance with rule 26 (notice of appeal) of the First-tier Tribunal Rules and copies of any application for referral and written representations made in accordance with rule 29 (application for referral to the Upper Tribunal) of those Rules.

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

4

• (1) A party to an appeal to the First-tier Tribunal may lodge with the Upper Tribunal a notice of appeal against a decision of the First-tier Tribunal not to refer an appeal made to it to the Upper Tribunal.

• (2) A notice of appeal under this rule must—

• (a) identify that the appeal is against a decision of the First-tier Tribunal under section 1(3BA) of the 1949 Act, and

• (b) identify the decision of the First-tier Tribunal to which it relates.

• (3) The party appealing under this rule must provide with the notice of appeal a copy of—

• (a) the notice of appeal made to the First-tier Tribunal in accordance with rule 26 of the First-tier Tribunal Rules, and

• (b) the written decision of the First-tier Tribunal not to refer that appeal to the Upper Tribunal, provided in accordance with rule 31 of the First-tier Tribunal Rules.

Confirmation of receipt of appeal

5

On receipt of a reference in accordance with rule 3 (making of references) or a notice of appeal in accordance with rule 4 (notice of appeal against a decision of the First-tier Tribunal), a copy of the reference or notice must within 14 days be sent by the Upper Tribunal to each of the other parties to the proceedings and to such other persons whom it considers should receive a copy, setting a date by which representations to it as respects the notice or reference may be made.

Determination declined

6

If the Upper Tribunal declines to proceed to determine any appeal under section 1(3B) of the 1949 Act, it must give notice of its decision with reasons to all parties having an interestin the appeal and must refer the matter back to the First-tier Tribunal.

Delegation to staff

7

• (1) Staff of the Scottish Courts and Tribunals Service may, with the approval of the President, carry out functions of a judicial nature permitted or required to be undertaken by the Upper Tribunal, provided that they are of a preliminary or an incidental nature.

• (2) The approval referred to in paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.

• (3) Where the Upper Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may, within the period of 14 days beginning with the day on which the party is presumed to have received the notice, make a written application to the Upper Tribunal for that decision to be considered afresh by a member of the Upper Tribunal.

Case management

8

• (1) Subject to the provisions of the 2014 Act, these Rules and any practice direction given by the President 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, notwithstanding that that time might have expired,

• (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

9

• (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 reasons 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.

• (5) The Upper Tribunal must send written notice of any order to each party to the case.

Failure to comply with rules etc.

10

• (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 11 (dismissal of a party’s case).

Dismissal of a party’s case

11

• (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 8(3)(l) (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 considers that it cannot deal with the proceedings fairly, or

• (c) 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)(b) without first giving the appellant an opportunity to make representations in relation to the proposed dismissal.

• (4) The Upper Tribunal must notify each party in writing that dismissal has taken place.

Addition, substitution and removal of parties

12

• (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) 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.

• (3) The Upper Tribunal may, on receipt of an application from a person who appears to it to have an interest in any proceedings, give an order adding or as the case may be substituting that person as a party to those proceedings.

• (4) If the Upper Tribunal gives an order under paragraph (1) or (3) it may give such consequential orders as it considers appropriate.

• (5) 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.

Expenses

13

• (1) Except as provided for in paragraph (2), the Upper Tribunal may not order payment of 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.

Fees

14

• (1) The Upper Tribunal may waive the whole or part of the fees payable by a party where it considers that the financial circumstances of the party are such that undue hardship would be caused by payment of the said fees.

• (2) Hearing fees, unless the Upper Tribunal otherwise directs, are payable by the party by whom the proceedings were instituted (without prejudice to any right to recover the amount of the fee from any other party by virtue of any order as to expenses).

Representation

15

• (1) In any proceedings before the Tribunal any party to the proceedings may appear and may be heard in person or be represented by counsel or a solicitor or, with the leave of the Tribunal, by any other person.

• (2) Where a party will be represented in any proceedings by a representative, the details of that representative must be communicated to the Upper Tribunal prior to any hearing.

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