The Tribunal Procedure (Upper Tribunal) Rules 2008

Made: 9th October 2008

Laid before Parliament: 15th October 2008

Coming into force: 3rd November 2008

After consulting in accordance with paragraph 28(1) of Schedule 5 to, the Tribunals, Courts and Enforcement Act 2007 the Tribunal Procedure Committee has made the following Rules in exercise of the power conferred by sections 10(3), 16(9), 22 and 29(3) and (4) of, and Schedule 5 to, that Act.

The Lord Chancellor has allowed the Rules in accordance with paragraph 28(3) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.

PART 1 — Introduction

Citation, commencement, application and interpretation

1

• (1) These Rules may be cited as the Tribunal Procedure (Upper Tribunal) Rules 2008 and come into force on 3rd November 2008.

• (2) These Rules apply to proceedings before the Upper Tribunal except proceedings in the Lands Chamber.

• (3) In these Rules—

• “the 2007 Act” means the Tribunals, Courts and Enforcement Act 2007;

• appellant means— a person who makes an appeal, or applies for permission to appeal, to the Upper Tribunal;in proceedings transferred or referred to the Upper Tribunal from the First-tier Tribunal, a person who started the proceedings in the First-tier Tribunal; ora person substituted as an appellant under rule 9(1) (substitution and addition of parties);

• “applicant” means—a person who applies for permission to bring, or does bring, judicial review proceedings before the Upper Tribunal and, in judicial review proceedings transferred to the Upper Tribunal from a court, includes a person who was a claimant or petitioner in the proceedings immediately before they were transferred; ora person who refers a financial services case or a wholesale energy case to the Upper Tribunal;

• “appropriate national authority” means, in relation to an appeal, the Secretary of State, the Scottish Ministers, the Department of the Environment in Northern Ireland or the Welsh Ministers, as the case may be;

• “asylum case” means proceedings before the Upper Tribunal on appeal against a decision in proceedings under section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002 in which a person claims that removal from, or a requirement to leave, the United Kingdom would breach the United Kingdom’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention;

• “authorised person” means—an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988;an examiner appointed by the Department of the Environment in Northern Ireland under Article 74 of the Road Traffic (Northern Ireland) Order 1995; orany person authorised in writing by the Department of the Environment in Northern Ireland for the purposes of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010;and includes a person acting under the direction of such an examiner or other authorised person, who has detained the vehicle to which an appeal relates;

• “disability discrimination in schools case” means proceedings concerning discrimination in the education of a child or young person or related matters;

• ...

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

• “document” means anything in which information is recorded in any form, and an obligation under these Rules or any practice direction or direction to provide or allow access to a document or a copy of a document for any purpose means, unless the Upper Tribunal directs otherwise, an obligation to provide or allow access to such document or copy in a legible form or in a form which can be readily made into a legible form;

• ...

• “financial sanctions case” means an appeal to the Upper Tribunal under section 147(6) of the Policing and Crime Act 2017.

• “financial services case” means a reference to the Upper Tribunal in respect of— a decision of the Financial Conduct Authority; a decision of the Prudential Regulation Authority; a decision of the Bank of England;a decision of the Pensions Regulator; ...a decision of a person relating to the assessment of any compensation or consideration under the Banking (Special Provisions) Act 2008 or the Banking Act 2009; or any determination, calculation or dispute which may be referred to the Upper Tribunal under the Financial Services and Markets Act 2000 (Contribution to Costs of Special Resolution Regime) Regulations 2010 (and in these Rules a decision in respect of which a reference has been made to the Upper Tribunal in a financial services case includes any such determination, calculation or, except for the purposes of rule 5(5), dispute relating to the making of payments under the Regulations).

• ...

• “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;

• “immigration case” means proceedings before the Upper Tribunal on appeal against a decision in proceedings under section 40A of the British Nationality Act 1981, section 82 of the Nationality, Immigration and Asylum Act 2002 ... ... or the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 that are not an asylum case...;

• “immigration judicial review proceedings” means judicial review proceedings which are designated as an immigration matter—in a direction made in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 specifying a class of case for the purposes of section 18(6) of the 2007 Act; orin an order of the High Court in England and Wales made under section 31A(3) of the Senior Courts Act 1981, transferring to the Upper Tribunal an application of a kind described in section 31A(1) of that Act;

• “interested party” means—a person who is directly affected by the outcome sought in judicial review proceedings, and has been named as an interested party under rule 28 or 29 (judicial review), or has been substituted or added as an interested party under rule 9 (addition, substitution and removal of parties); ...in judicial review proceedings transferred to the Upper Tribunal under section 25A(2) or (3) of the Judicature (Northern Ireland) Act 1978 or section 31A(2) or (3) of the Supreme Court Act 1981 , a person who was an interested party in the proceedings immediately before they were transferred to the Upper Tribunal; ...in a financial services case or a wholesale energy case , any person other than the applicant who could have referred the case to the Upper Tribunal and who has been added or substituted as an interested party under rule 9 (addition, substitution and removal of parties); in a financial sanctions case, any person other than the appellant upon whom the Treasury has imposed a monetary penalty under Part 8 of the Policing and Crime Act 2017 in connection with the same matters as led to the decision that is the subject of the appeal and who has been added or substituted as an interested party under rule 9 (addition, substitution and removal of parties); and in a trade remedies case, any person other than the appellant who could have appealed to the Upper Tribunal and who has been added or substituted as an interested party under rule 9 (addition, substitution and removal of parties);

• “judicial review proceedings” means proceedings within the jurisdiction of the Upper Tribunal pursuant to section 15 or 21 of the 2007 Act, whether such proceedings are started in the Upper Tribunal or transferred to the Upper Tribunal;

• ...

• “mental health case” means proceedings before the Upper Tribunal on appeal against a decision in proceedings under the Mental Health Act 1983 or paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984 ;

• “national security certificate appeal” means an appeal under section 28 of the Data Protection Act 1998, sections 27, 79 or 111 of the Data Protection Act 2018 or section 60 of the Freedom of Information Act 2000 (including that section as applied and modified by regulation 18 of the Environmental Information Regulations 2004);

• “party” means a person who is an appellant, an applicant, a respondent or an interested party in proceedings before the Upper Tribunal, a person who has referred a question or matter to the Upper Tribunal or, if the proceedings have been concluded, a person who was an appellant, an applicant, a respondent or an interested party when the Upper Tribunal finally disposed of all issues in the proceedings;

• “permission” includes leave in cases arising under the law of Northern Ireland;

• “practice direction” means a direction given under section 23 of the 2007 Act;

• “QCS Board” means a Board constituted under Part 2 of the Transport Act 2000;

• “quality contracts scheme” has the meaning provided for in section 124(3) (quality contracts scheme) of the Transport Act 2000;

• “quality contracts scheme case” means proceedings in the Upper Tribunal under Part 2 of the Transport Act 2000;

• “reference”, in a financial services case, includes an appeal;

• “relevant Minister” means the Minister or designated person responsible for the signing of the certificate to which a national security certificate appeal relates;

• “respondent” means—in an appeal, or application for permission to appeal, against a decision of another tribunal, any person other than the appellant who—was a party before that other tribunal;...otherwise has a right of appeal against the decision of the other tribunal and has given notice to the Upper Tribunal that they wish to be a party to the appeal; in any other any other application for permission to appeal, or any other appeal except a road transport case, the person who made the decision that has been challenged; in judicial review proceedings—in proceedings started in the Upper Tribunal, the person named by the applicant as the respondent;in proceedings transferred to the Upper Tribunal under section 25A(2) or (3) of the Judicature (Northern Ireland) Act 1978 or section 31A(2) or (3) of the Supreme Court Act 1981, a person who was a defendant in the proceedings immediately before they were transferred;in proceedings transferred to the Upper Tribunal under section 20(1) of the 2007 Act, a person to whom intimation of the petition was made before the proceedings were transferred, or to whom the Upper Tribunal has required intimation to be made.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;in a reference under the Forfeiture Act 1982 , the person whose eligibility for a benefit or advantage is in issue; ... in a financial services case— where the case is a multiple regulator case, both the primary and secondary regulator as defined in Schedule 3 to these rules (but subject to the operation of paragraph 4A(3) of that Schedule);where the case is a single regulator case, the maker of the decision in respect of which a reference has been made; or in a wholesale energy case, in relation to Great Britain, the Gas and Electricity Markets Authority or, in relation to Northern Ireland, the Northern Ireland Authority for Utility Regulation; or a person substituted or added as a respondent under rule 9 (substitution and addition of parties);

• “road transport case” means an appeal against a decision of—;a traffic commissioner, other than an appeal pursuant to—section 6F of the Transport Act 1985, orsection 123T of the Transport Act 2000, orthe Department of the Environment in Northern Ireland;

• “special educational needs case” means proceedings concerning the education of a child or young person who has or may have special educational needs, including proceedings relating to—an EHC needs assessment within the meaning of section 36(2) of the Children and Families Act 2014; ... a detained person’s EHC needs assessment within the meaning of section 70(5) of the Children and Families Act 2014; or an EHC plan within the meaning of section 37(2) of that Act,of such a child or young person;

• “TRA” means the Trade Remedies Authority;

• “trade remedies case” means an appeal pursuant to the Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019 against a decision made by the TRA or a determination of the Secretary of State;

• “tribunal” does not include a traffic commissioner;

• “wholesale energy case” means a reference to the Upper Tribunal in respect of a decision of—in relation to Great Britain, the Gas and Electricity Markets Authority under the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013; orin relation to Northern Ireland, the Northern Ireland Authority for Utility Regulation under the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations (Northern Ireland) 2013;

• ...

• “working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 .

• “young person” means, in relation to a special educational needs case or a disability discrimination in schools case, a person over compulsory school age but under 25;

Overriding objective and parties' obligation to co-operate with the Upper Tribunal

2

• (1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

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

• (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs 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;

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

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

• (3) 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.

• (4) Parties must—

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

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

Alternative dispute resolution and arbitration

3

• (1) The Upper Tribunal should seek, where appropriate—

• (a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and

• (b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure.

• (2) Part 1 of the Arbitration Act 1996 does not apply to proceedings before the Upper Tribunal.

PART 2 — General powers and provisions

Delegation to staff

4

• (1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) or section 2(1) of the Courts Act 2003 (court officers, staff and services) may, if authorised by of the Senior President of Tribunals under paragraph 3(3) of Schedule 5 to the 2007 Act, carry out functions of a judicial nature permitted or required to be done by the Upper Tribunal.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Within 14 days after the date on which the Upper Tribunal sends notice of a decision made by a member of staff under paragraph (1) to a party, that party may apply in writing to the Upper Tribunal for that decision to be considered afresh by a judge.

Case management powers

5

• (1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

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

• (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 direction;

• (b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;

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

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

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

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

• (g) decide the form of any hearing;

• (h) adjourn or postpone a hearing;

• (i) require a party to produce a bundle for a hearing;

• (j) stay (or, in Scotland, sist) proceedings;

• (k) 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;

• (l) suspend the effect of its own decision pending an appeal or review of that decision;

• (m) in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal;

• (n) require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In a financial services case, the Upper Tribunal may direct that the effect of the decision in respect of which the reference has been made is to be suspended pending the determination of the reference, if it is satisfied that to do so would not prejudice—

• (a) the interests of any persons (whether consumers, investors or otherwise) intended to be protected by that notice; ...