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The Upper Tribunal for Scotland (Bus Registration Appeals Rules of Procedure) Regulations 2024

Type Scottish-Statutory-Instrument

Publication 2024-09-18

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

Reform history JSON API PDF

Made: 18th September 2024

Laid before the Scottish Parliament: 20th September 2024

Coming into force: 2nd December 2024

In accordance with paragraph 4(3) of that schedule, 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 (Bus Registration Appeals Rules of Procedure) Regulations 2024 and the Rules contained in the schedule may be cited as the Upper Tribunal for Scotland Bus Registration Appeals Rules of Procedure 2024.

(2) These Regulations come into force on 2 December 2024.

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 by virtue of—

(a) section 39(5A) of the Transport (Scotland) Act 2001[^f00003],

(b) regulation 2 of the Public Service Vehicles (Registration of Local Services) (Bus Services Improvement Partnerships Service Standards Decisions) (Appeals) (Scotland) Regulations 2024[^f00004].

Application of Rules in the schedule

3

The Rules in the schedule of these Regulations apply to all proceedings before the Upper Tribunal when exercising the functions specified in regulation 2.

SCHEDULE — The Upper Tribunal for Scotland Bus Registration Appeals Rules of Procedure 2024

PART 1 — Interpretation

Interpretation

1

(1) In these Rules—

“the 2014 Act” means the Tribunals (Scotland) Act 2014[^f00005],

“appeal”, except in Part 7, means an appeal under— section 39(5A) of the Transport (Scotland) Act 2001[^f00006], or regulation 2 of the Public Service Vehicles (Registration of Local Services) (Bus Services Improvement Partnerships Service Standards Decisions) (Appeals) (Scotland) Regulations 2024[^f00007],

“appellant” means— the person bringing the appeal, a person substituted as an appellant under rule 11 (addition, substitution and removal of parties),

“Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998[^f00008],

“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[^f00009] and “electronic signature” has the same meaning as in section 7 of that Act[^f00010],

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

“hearing” means an oral hearing and includes a form of hearing conducted in whole or in part by video link, telephone or other means of instantaneous multi-party electronic communication,

“interested party” means a person other than the appellant or respondent on whom the Upper 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,

“penalty” means a penalty imposed by the traffic commissioner under any paragraph of section 39(1) of the Transport (Scotland) Act 2001[^f00011] except paragraph (d),

“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,

“respondent” means the traffic commissioner,

“review” means the review provided for by section 43(1) of the 2014 Act,

“review period” means the time period between an application by a party for a review under rule 31(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 31(5),

“traffic commissioner” means the person appointed from time to time to be the commissioner for the Scottish Traffic Area under section 4 of the Public Passenger Vehicles Act 1981[^f00012],

“traffic commissioner decision” means any determination of the traffic commissioner specified in section 6M of the Transport Act 1985[^f00013],

“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 a postal service to the last known address held for a party, or

(b) by electronic communication to the last known address held for the party,

the party 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.

(2) Appeals may be made in relation to issues of fact or law.

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

(4) Dealing with proceedings fairly and justly includes—

(a) dealing with the proceedings in ways which are transparent and 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.

(5) 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.

(6) 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 — Procedure for cases in the Upper Tribunal

Notice of appeal

3

(1) An appeal to the Upper Tribunal is to be made by giving written notice in accordance with paragraphs (2) to (6).

(2) A notice of appeal must include—

(a) a statement that the notice is a notice of appeal,

(b) the full name and address of the appellant,

(d) an address where documents for the appellant may be sent or delivered,

(e) the date and reference number (if any) of the penalty or traffic commissioner decision to which the appeal relates,

(f) a statement of the alleged error (or errors) of fact or law in the penalty or traffic commissioner decision,

(g) a statement as to whether the appellant consents to the Upper Tribunal making a decision on the case without a hearing, and

(h) the signature of the appellant or the representative.

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

(a) any written record of the penalty or traffic commissioner decision being challenged, and

(b) any separate documents issued by the traffic commissioner in relation to the penalty or traffic commissioner decision.

(4) A notice of appeal is to be received by the Upper Tribunal within a period of 30 days beginning with the date of service by the traffic commissioner of the penalty or traffic commissioner decision on the appellant.

(5) Within 14 days of receipt of the notice of appeal, the Upper Tribunal must send—

(a) an acknowledgment of receipt of the notice of appeal to the appellant, and

(b) a copy of the notice and any accompanying documents to the respondent and any interested party.

(6) If the appellant lodges the notice of appeal after the end of the 30-day period mentioned in paragraph (4)—

(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.

Response to the notice of appeal

4

(1) Subject to any order given by the Upper Tribunal, the respondent—

(a) must provide the Upper Tribunal with copies of the documentation issued by the respondent to the appellant in relation to the relevant penalty or traffic commissioner decision, and

(b) may provide a written response to a notice of appeal.

(2) Any documentation or 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) A written response under paragraph (1)(b) must include—

(a) the full name and address of the respondent,

(b) the full name and address of any representative,

(d) a statement as to whether the respondent opposes the appeal,

(e) the grounds on which the respondent relies, and

(f) a statement as to whether the respondent consents to the Upper Tribunal making a decision on the case without a hearing.

(4) If the respondent provides the written 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 or shorten 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 documentation or a written response from the respondent it must send a copy of the documentation or written response and any accompanying documents to the appellant and any interested party.

Appellant’s reply

5

(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 or shorten 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 the respondent and any interested party.

PART 4 — General Powers and Provisions

Delegation to staff

6

(1) Staff of the Scottish Courts and Tribunals Service[^f00014] 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 the functions 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

7

(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, practice direction or order,

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

(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) with the agreement of both parties, bring forward a hearing,

(k) require a party to produce or lodge documents,

(l) sist proceedings,

(m) 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,

(n) suspend the effect of its own decision pending an appeal of that decision.

Procedure for applying for and giving orders

8

(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.

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

Failure to comply with rules etc.

9

(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

Dismissal of a party’s case

10

(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)(m) (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

(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.

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

Addition, substitution and removal of parties

11

(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,

(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 be 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.

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