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  • Tribunal Practice

Tribunal Practice


A major new work on the practice and procedure of the new Tribunal system, established under the Tribunals, Courts and Enforcement Act 2007

Tribunal Practice, a major new practitioner text on the practice and procedure of the administrative tribunal system, is available online or in print and is the most comprehensive work on this topic.

"This book is most welcome and timely and will be an essential aid to the ever increasing number of lawyers involved in administration law ..."

 Professor John Angel
 Former President of the Information Tribunal and first acting President of the GRC in the FTT
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 Logically organised, it enables you to easily find authoritative answers to all procedural issues arising in any of the Tribunal’s chambers.

 The work takes account of important changes to the tribunal system including the expansion of the General Regulatory Chamber, the revision of the tribunal procedural rules, and the Supreme Court decisions in R (Cart) v Upper Tribunal and Eba v Advocate General for Scotland, as well as comprehensive coverage of all decisions which touch upon procedure in the new tribunals.

 The book contains:
  • Detailed commentary from leading practitioners in the field, drawing on their extensive experience of tribunal and public law work
  • A step-by-step guide covering every practice issue that might arise before a Tribunal, from how to initiate an appeal, to seeking a witness summons. Each step is referenced to the relevant tribunal procedural rules, practice statement, practice direction and other material such as case-law
  • The up-to-date text of all the major statutes and statutory instruments that govern the procedure before the Chambers of the First-tier Tribunal and the Upper Tribunal
  • All major Practice Directions and Practice Statements
  • Academic articles and journal references where appropriate
It is an affordable and authoritative one-stop shop for all practitioners, tribunal members and judges within the tribunal system, combining expert analysis with access to the latest version of the core materials. It is proposed to keep the work updated on a regular basis.

Part 1 – Narrative

  • Chapter 1: The new system of administrative appeals tribunals
  • Chapter 2: Organisation of the new system of administrative tribunals
  • Chapter 3: Jurisdiction of the First-tier Tribunal
  • Chapter 4: Jurisdiction of the Upper Tribunal
  • Chapter 5: General Matters
  • Chapter 6: Initiating an appeal in the First-tier Tribunal
  • Chapter 7: Responding to an appeal in the First-tier Tribunal
  • Chapter 8: The process
  • Chapter 9: The hearing
  • Chapter 10: Evidence
  • Chapter 11: The decision
  • Chapter 12: Challenging decisions of the First-tier Tribunal
  • Chapter 13: Appeals to the Upper Tribunal
  • Chapter 14: Judicial Review Proceedings in the Upper Tribunal
  • Chapter 15: Challenging the decisions of the Upper Tribunal
  • Chapter 16: Costs
  • Chapter 17: Representation
  • Chapter 18: Enforcement

Part 2 – Statutes

Full text of the Tribunal, Courts and Enforcement Act 2007 in consolidated form

Part 3 – Statutory Instruments

All relevant SIs appear in consolidated form

Part 4 – Practice Directions

Part 5 – Practice Statements

Part 6 – Forms

A table setting out all forms and their uses, broken down by Chamber
"if you find yourself involved in a tribunal, whether you’re a practitioner, or member of the tribunal, or a participant in any other respect, you will find this book of immense help – in fact, well nigh indispensable ... definitive work ... extensive tables of cases, statutes, statutory instruments, practice statements and practice directions ... easily navigable ... each chapter prefaced with its own individual table of contents and a detailed general table of contents at the front ... for those charged with the responsibilities of tribunal work, this is a formidable yet readable and accessible work of reference ..."
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 Phillip Taylor MBE and Elizabeth Taylor Richmond Green Chambers
"will provide invaluable assistance to practitioners, and to the tribunals and courts ... provides an overview of the jurisdiction with detailed analysis ... exhaustively footnoted and cross-referenced, whilst remaining practically focussed ... it will be an invaluable reference to practitioners navigating the tribunal system ..."
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 Sarah Hannett Matrix Chambers
"comprehensive and logical approach ... jurisdiction specific procedures have been identified and clearly explained ... authoritative and up to date practice manual ... provides all relevant statutory materials including statutory instruments (with the rules of procedure), practice directions and statements and the various forms used by Chambers in both the FTT and UT. It is really useful to find all these together in one publication. It is a nightmare finding them on the newly structure judicial websites now provided by the government ... provides some critical commentary, which one would expect from such experienced authors ... book recognises the issue involved with not allowing requester’s lawyers to see closed evidence, and questions the practice ... This book is most welcome and timely and will be an essential aid to the ever increasing number of lawyers involved in administration law ..."
Read the full review
  Professor John Angel 
Former President of the Information Tribunal and first acting President of the GRC in the FTT
"... a comprehensive and authoritative guide to the Tribunal system for advocates, judges and other tribunal members and users. It provides a structured approach to the practice and procedure of tribunals, setting the rules of procedure in context and providing a framework for understanding and analysing the practices that apply to them. It provides concise and interesting background reading on the genesis and development of the Tribunal system ...  The text gives you instant access to knowledge of the whole tribunals system, including jurisdictions of the different tribunals, rules of practice and procedure, costs rules, rights of appeal and judicial review. It is particularly useful if you practice in a number of legal fields  ... comprehensive in terms of setting out the law and legislation ... very practical  ... an invaluable tool for those requiring knowledge of the practices and approaches to the procedural issues of the tribunals system ... a major contribution to this developing area of legal practice ..."
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 Melanie Carter Partner, Bates Wells & Braithwaite London LLP
"Excellent guide by two seasoned tribunal practitioners ... Invaluable practical guidance to the organisation and operation of the new tribunal structure ... Perhaps most invaluably of all from a practitioner’s perspective, Coppel and Hanif explain in detail the life‐cycle of an appeal to a tribunal ... This is useful both as an overview to the tribunal process as a whole and also as a point of reference for each discrete part of the process ... The authors have produced what will probably become the leading textbook on the current tribunal structure and an indispensable guide for those who act for both appellants and respondents alike ... The essential companion for every serious tribunal practitioner ..."
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 Sarabjit Singh
On 3 November 2008, the new two-tier tribunal system, established by the Tribunal, Courts and Enforcement Act 2007 came into force. The Act marked an important step in the evolution of the relationship between the executive and the individual in this country. It made into a quaternity the principal concepts that maintain the equilibrium of that relationship:

 (1) the establishment of a coherent body of principles governing the supervision of the executive decision-making process – ‘judicial review’. Lord Diplock wrote of the progress that had been made in the 30 preceding years ‘towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime’ (R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 641);
 (2) the appointment of permanent office holders to investigate maladministration – ‘ombudsmen’;
 (3) a universal right of access to official information not confined by subject matter, or by the persons who may exercise the right, or by some recognised need to know – ‘freedom of information’; and now
 (4) the introduction of a single adjudicative body whose remit is to come up with the right decision – ‘the tribunal system’.

 It is difficult to overstate the significance of these changes. We have seen in the last 60 years a growth in State activity and regulation that has exceeded what many feared. The ‘State’ which, as Professor AJ Taylor remarked, only involved itself in an Englishman’s life through the village policeman and post office, now involves itself in a person’s life from conception to cremation. The information it holds on each of us, both visual and written, could not rationally have been predicted 60 years ago. No-one could have imagined its current ability to analyse and process that information.

 Yet, for most of us, most of the time, the Orwellian dystopia has not come to pass: 1984 remains a great work of fiction, not of premonition. It is not through mere acclimatisation that most of us have become reconciled to this state of affairs. Hand-in-hand with greater state involvement, there has been a transformation of the process by which the decisions of those same public bodies are scrutinised, renewed and re-taken. That greater accountability has been secured by the fundamental changes in the legal relationship between those governing and those whom they govern. The relationship is a more responsible and responsive one. And the new tribunal system forms an important part in this changed relationship.

 So viewed, where it applies, the new tribunal system is to be welcomed. It recognises that in a modern democracy, a decision that directly affects the rights, liabilities or obligations of an individual should be the right one. No longer will the practitioner have to tell the puzzled client who has established that a decision was unlawful, that the new decision may still be the wrong one. The new system will undoubtedly evolve. Problems will be solved. Precedents will be set.

 We hope that this book will be useful to all involved in this process – tribunal members, practitioners and lay users alike.

 We are grateful to all those at Jordans’ who have assisted in the publication of this text, and in particular to Tony Hawitt.

 The law in this text is up to date to 31 September 2012.
 Philip Coppel QC
 Saima Hanif
 October 2012
 1.1 The Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’) laid down the statutory basis for the most fundamental overhaul of the system of administrative tribunals in the United Kingdom since the implementation of the recommendations of the Franks Report in the late 1950s. That overhaul represents an important step in the post-World War II evolution of public law in this country. It is an evolution which has been shared, with a remarkable degree of similarity and over the same period, by other countries having a like democratic tradition. It has typically included the introduction of a system by which an independent tribunal is empowered to re-determine the merits of governmental decisions that refuse or confer rights, or which impose liabilities or obligations, upon an individual.

 1.2 Within the United Kingdom, the concept of executive decision-making by a nominally independent body arose in the first half of the nineteenth century. Industrialisation brought with it a greater need for State involvement and for the making of decisions that had a major impact upon selected individuals. These decisions could displace the proprietary rights of a particular individual, whilst leaving others untouched. The various railways acts, the public health acts and the inclosure acts – to pick three examples – all conferred powers for the compulsory acquisition of or interference with land through executive decision-making powers. The potential harshness of those powers was tempered by a mechanism in which their exercise was either vested in or subject to review by a person or body independent of those upon whom the power had been conferred. Although variously labelled ‘Commissioners’ and ‘Boards’, what unified these decision-makers The New System of Administrative Appeals Tribunals was a measure of independence and some form of prescribed procedure governing their conduct: attributes that are now associated with an administrative tribunal. By this device, strong centralised authority could be exercised without abandonment of cherished principles of English governance.

 1.3 Nevertheless, despite the mechanism, the various Commissioners and Boards were sometimes perceived as an extension of the executive arm of government. Although they provided the means by which executive government could inform itself of the best way to exercise its powers, it could sometimes seem that the system rarely served to frustrate or prevent the exercise of those powers.

 1.4 In the immediate aftermath of the Second World War, the range of peace-time activities with which government involved itself increased markedly. The preceding decade had demonstrated the destructive and de-humanising effect of the unchecked subordination of an individual’s interests to those of the State. Much of what is now recognised as a developed system of administrative law evolved in response to the need to square that increased governmental involvement without a repetition of those then-recent mistakes.
 9.95 Consistent with its remit to come up with the right outcome based upon the evidence presented to it, where the circumstances require, a tribunal can and should examine and determine a relevant issue even where neither party has raised that issue. This is no more than an application of the principle which applies to concessions (see paras 9.76–9.80 above).

 9.96 In the event that the tribunal does exercise its discretion to examine an issue of its own motion, both parties must be given an adequate opportunity to make submissions on the new point.


 9.97 Appeals to the First-tier Tribunal are merit-based appeals: in other words they do not revolve around the lawfulness of a decision made in the past but are concerned with reaching the right one based on the material presented to it. As such, unless the statute otherwise provides, the parties can and should bring to the Tribunal’s attention all matters that are relevant to the decision that the Tribunal has to make, regardless of whether that material existed at the time the original decision was made.

 In the Upper Tribunal, in an asylum case or an immigration case, if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party indicating the nature of the evidence; and explaining why it was not submitted to the First-tier Tribunal. When considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.

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