Digest of Procedural decisions
A digest of procedural decisions of all Chambers of the Upper Tribunal which will be of common interest to the Upper Tribunal, the First-tier Tribunal and to parties and their representatives.
20 September 2012
20 September 2012
Warning
CE/2446/2011 – the decision of the First-tier Tribunal in a social security case was set aside when it appeared that the tribunal had failed to preserve the digital record of the proceedings as required by the Senior President’s Practice Statement on Record of proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008.
* This is a decision of JMe.
Keyword: preserving recording
20 September 2012
Warning
CDLA/0635/2012 – a three judge panel will consider the meaning of ‘amend reasons’ in section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007.
Keyword: reasons
20 September 2012
- Meaning of the Overriding Objective (Three Judge Panel). Dorset Healthcare NHS Foundation Trust v M H [2009] UKUT 4 (AAC), at paragraph 13:
"an express obligation upon the parties to assist in the furtherance of the objective of dealing with cases fairly and justly, which includes the avoidance of unnecessary applications and unnecessary delay. That requires parties to cooperate and liaise with each other concerning procedural matters, with a view to agreeing a procedural course promptly where they are able to do so, before making any application to the tribunal. This is particularly to be expected where parties have legal representation. Parties should endeavour to agree disclosure issues without the need for the tribunal to make a ruling. However, even where a direction from the tribunal may be required …..it will assist the tribunal to further the overriding objective if the parties can identify any directions they are able to agree, subject to the approval of the tribunal. Where they are unable to agree every aspect, this liaison will at least have the advantage of crystallising their positions, and more clearly identifying the issue(s) upon which the tribunal will have to rule".
20 September 2012
- Permission to Appeal - in Smith v HMRC [2011] UKUT 270 (TCC) Mr Justice Arnold reviewed a number of authorities following on from the well-known case of Edwards v Bairstow [1956] AC 14 in which appellate courts have been asked to overturn first-instance decisions on the basis that the lower court’s findings of fact could not reasonably be supported. In so doing, Arnold J quoted from Lord Justice Evans’ speech in Georgiou v Customs and Excise Commissioners [1996] STC 463:
"It follows, in my judgement, that for a question of law to arise in the circumstances, the appellant must first identify the finding challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of the evidence coupled with a general assertion that the tribunals’ conclusion was against the weight of the evidence and was therefore wrong".
20 September 2012
27 September 2011
- Secretary of State for Defence v LA [2011] UKUT 391 (AAC)
There is no presumption that a party has correctly identified all relevant documents on disclosure. There is no need for a presumption, as the rules of procedure provide sufficient powers to deal with any issues that may arise concerning excessive demands for disclosure. Any presumption would be inconsistent with those rules.
Keyword: disclosure
13 September 2011
- IB v Information Commissioner [2011] UKUT 370 (AAC)
The First-tier Tribunal and Upper Tribunal are courts for the purposes of vexatious litigant orders and those litigants need the permission of the High Court to bring proceedings. Section 25 of the Tribunals, Courts and Enforcement Act 2007 does not authorise the Upper Tribunal to give that permission.
Keyword: vexatious litigants
22 December 2010
