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PART 1 continued CHAPTER 2 continued
(3) In acting under subsection (2)(b)(i), the relevant appellate court may also—
(a) direct that the persons who are chosen to reconsider the case are not to be the same as those who—
(i) where the case is remitted to the Upper Tribunal, made the decision of the Upper Tribunal that has been set aside, or
(ii) where the case is remitted to another tribunal or person, made the decision in respect of which the appeal or reference to the Upper Tribunal was made;
(b) give procedural directions in connection with the reconsideration of the case by the Upper Tribunal or other tribunal or person.
(4) In acting under subsection (2)(b)(ii), the relevant appellate court—
(a) may make any decision which the Upper Tribunal could make if the Upper Tribunal were re-making the decision or (as the case may be) which the other tribunal or person could make if that other tribunal or person were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.
(5) Where—
(a) under subsection (2)(b)(i) the relevant appellate court remits a case to the Upper Tribunal, and
(b) the decision set aside under subsection (2)(a) was made by the Upper Tribunal on an appeal or reference from another tribunal or some other person,
the Upper Tribunal may (instead of reconsidering the case itself) remit the case to that other tribunal or person, with the directions given by the relevant appellate court for its reconsideration.
(6) In acting under subsection (5), the Upper Tribunal may also—
(a) direct that the persons who are chosen to reconsider the case are not to be the same as those who made the decision in respect of which the appeal or reference to the Upper Tribunal was made;
(b) give procedural directions in connection with the reconsideration of the case by the other tribunal or person.
(7) In this section “the relevant appellate court”, as respects an appeal under section 13, means the court specified as respects that appeal by the Upper Tribunal under section 13(11).
(1) The Upper Tribunal has power, in cases arising under the law of England and Wales or under the law of Northern Ireland, to grant the following kinds of relief—
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order;
(d) a declaration;
(e) an injunction.
(2) The power under subsection (1) may be exercised by the Upper Tribunal if—
(a) certain conditions are met (see section 18), or
(b) the tribunal is authorised to proceed even though not all of those conditions are met (see section 19(3) and (4)).
(3) Relief under subsection (1) granted by the Upper Tribunal—
(a) has the same effect as the corresponding relief granted by the High Court on an application for judicial review, and
(b) is enforceable as if it were relief granted by the High Court on an application for judicial review.
(4) In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review.
(5) In deciding whether to grant relief under subsection (1)(d) or (e), the Upper Tribunal must—
(a) in cases arising under the law of England and Wales apply the principles that the High Court would apply in deciding whether to grant that relief under section 31(2) of the Supreme Court Act 1981 (c. 54) on an application for judicial review, and
(b) in cases arising under the law of Northern Ireland apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review.
(6) For the purposes of the application of subsection (3)(a) in relation to cases arising under the law of Northern Ireland—
(a) a mandatory order under subsection (1)(a) shall be taken to correspond to an order of mandamus,
(b) a prohibiting order under subsection (1)(b) shall be taken to correspond to an order of prohibition, and
(c) a quashing order under subsection (1)(c) shall be taken to correspond to an order of certiorari.
(1) This section applies in relation to an application to the Upper Tribunal for relief under section 15(1).
(2) The application may be made only if permission (or, in a case arising under the law of Northern Ireland, leave) to make it has been obtained from the tribunal.
(3) The tribunal may not grant permission (or leave) to make the application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
(4) Subsection (5) applies where the tribunal considers—
(a) that there has been undue delay in making the application, and
(b) that granting the relief sought on the application would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(5) The tribunal may—
(a) refuse to grant permission (or leave) for the making of the application;
(b) refuse to grant any relief sought on the application.
(6) The tribunal may award to the applicant damages, restitution or the recovery of a sum due if—
(a) the application includes a claim for such an award arising from any matter to which the application relates, and
(b) the tribunal is satisfied that such an award would have been made by the High Court if the claim had been made in an action begun in the High Court by the applicant at the time of making the application.
(7) An award under subsection (6) may be enforced as if it were an award of the High Court.
(8) Where—
(a) the tribunal refuses to grant permission (or leave) to apply for relief under section 15(1),
(b) the applicant appeals against that refusal, and
(c) the Court of Appeal grants the permission (or leave),
the Court of Appeal may go on to decide the application for relief under section 15(1).
(9) Subsections (4) and (5) do not prevent Tribunal Procedure Rules from limiting the time within which applications may be made.
(1) If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect of a decision, it may in addition—
(a) remit the matter concerned to the court, tribunal or authority that made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal, or
(b) substitute its own decision for the decision in question.
(2) The power conferred by subsection (1)(b) is exercisable only if—
(a) the decision in question was made by a court or tribunal,
(b) the decision is quashed on the ground that there has been an error of law, and
(c) without the error, there would have been only one decision that the court or tribunal could have reached.
(3) Unless the Upper Tribunal otherwise directs, a decision substituted by it under subsection (1)(b) has effect as if it were a decision of the relevant court or tribunal.
(1) This section applies where an application made to the Upper Tribunal seeks (whether or not alone)—
(a) relief under section 15(1), or
(b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1).
(2) If Conditions 1 to 4 are met, the tribunal has the function of deciding the application.
(3) If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court.
(4) Condition 1 is that the application does not seek anything other than—
(a) relief under section 15(1);
(b) permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1);
(c) an award under section 16(6);
(d) interest;
(e) costs.
(5) Condition 2 is that the application does not call into question anything done by the Crown Court.
(6) Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4).
(7) The power to give directions under subsection (6) includes—
(a) power to vary or revoke directions made in exercise of the power, and
(b) power to make different provision for different purposes.
(8) Condition 4 is that the judge presiding at the hearing of the application is either—
(a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or
(b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.
(9) Where the application is transferred to the High Court under subsection (3)—
(a) the application is to be treated for all purposes as if it—
(i) had been made to the High Court, and
(ii) sought things corresponding to those sought from the tribunal, and
(b) any steps taken, permission (or leave) given or orders made by the tribunal in relation to the application are to be treated as taken, given or made by the High Court.
(10) Rules of court may make provision for the purpose of supplementing subsection (9).
(11) The provision that may be made by Tribunal Procedure Rules about amendment of an application for relief under section 15(1) includes, in particular, provision about amendments that would cause the application to become transferrable under subsection (3).
(12) For the purposes of subsection (9)(a)(ii), in relation to an application transferred to the High Court in Northern Ireland—
(a) an order of mandamus shall be taken to correspond to a mandatory order under section 15(1)(a),
(b) an order of prohibition shall be taken to correspond to a prohibiting order under section 15(1)(b), and
(c) an order of certiorari shall be taken to correspond to a quashing order under section 15(1)(c).
(1) In the Supreme Court Act 1981 (c. 54), after section 31 insert—
(1) This section applies where an application is made to the High Court—
(a) for judicial review, or
(b) for permission to apply for judicial review.
(2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal.
(3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.
(4) Condition 1 is that the application does not seek anything other than—
(a) relief under section 31(1)(a) and (b);
(b) permission to apply for relief under section 31(1)(a) and (b);
(c) an award under section 31(4);
(d) interest;
(e) costs.
(5) Condition 2 is that the application does not call into question anything done by the Crown Court.
(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.
(7) Condition 4 is that the application does not call into question any decision made under—
(a) the Immigration Acts,
(b) the British Nationality Act 1981 (c. 61),
(c) any instrument having effect under an enactment within paragraph (a) or (b), or
(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.”
(2) In the Judicature (Northern Ireland) Act 1978 (c. 23), after section 25 insert—
(1) This section applies where an application is made to the High Court—
(a) for judicial review, or
(b) for leave to apply for judicial review.
(2) If Conditions 1, 2, 3 and 4 are met, the High Court must by order transfer the application to the Upper Tribunal.
(3) If Conditions 1, 2 and 4 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.
(4) Condition 1 is that the application does not seek anything other than—
(a) relief under section 18(1)(a) to (e);
(b) leave to apply for relief under section 18(1)(a) to (e);
(c) an award under section 20;
(d) interest;
(e) costs.
(5) Condition 2 is that the application does not call into question anything done by the Crown Court.
(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.
(7) Condition 4 is that the application does not call into question any decision made under—
(a) the Immigration Acts,
(b) the British Nationality Act 1981,
(c) any instrument having effect under an enactment within paragraph (a) or (b), or
(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.”
(3) Where an application is transferred to the Upper Tribunal under 31A of the Supreme Court Act 1981 (c. 54) or section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court of judicial review applications)—
(a) the application is to be treated for all purposes as if it—
(i) had been made to the tribunal, and
(ii) sought things corresponding to those sought from the High Court,
(b) the tribunal has the function of deciding the application, even if it does not fall within a class specified under section 18(6), and
(c) any steps taken, permission given, leave given or orders made by the High Court in relation to the application are to be treated as taken, given or made by the tribunal.
(4) Where—
(a) an application for permission is transferred to the Upper Tribunal under section 31A of the Supreme Court Act 1981 (c. 54) and the tribunal grants permission, or
(b) an application for leave is transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) and the tribunal grants leave,
the tribunal has the function of deciding any subsequent application brought under the permission or leave, even if the subsequent application does not fall within a class specified under section 18(6).
(5) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsections (3) and (4).
(6) For the purposes of subsection (3)(a)(ii), in relation to an application transferred to the Upper Tribunal under section 25A of the Judicature (Northern Ireland) Act 1978—
(a) a mandatory order under section 15(1)(a) shall be taken to correspond to an order of mandamus,
(b) a prohibiting order under section 15(1)(b) shall be taken to correspond to an order of prohibition, and
(c) a quashing order under section 15(1)(c) shall be taken to correspond to an order of certiorari.
(1) Where an application is made to the supervisory jurisdiction of the Court of Session, the Court—
(a) must, if Conditions 1, 2 and 4 are met, and
(b) may, if Conditions 1, 3 and 4 are met, but Condition 2 is not,
by order transfer the application to the Upper Tribunal.
(2) Condition 1 is that the application does not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session.
(3) Condition 2 is that the application falls within a class specified for the purposes of this subsection by act of sederunt made with the consent of the Lord Chancellor.
(4) Condition 3 is that the subject matter of the application is not a devolved Scottish matter.
(5) Condition 4 is that the application does not call into question any decision made under—
(a) the Immigration Acts,
(b) the British Nationality Act 1981 (c. 61),
(c) any instrument having effect under an enactment within paragraph (a) or (b), or
(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.
(6) There may not be specified under subsection (3) any class of application which includes an application the subject matter of which is a devolved Scottish matter.
(7) For the purposes of this section, the subject matter of an application is a devolved Scottish matter if it—
(a) concerns the exercise of functions in or as regards Scotland, and
(b) does not relate to a reserved matter within the meaning of the Scotland Act 1998 (c. 46).
(8) In subsection (2), the reference to the exercise of the supervisory jurisdiction of the Court of Session includes a reference to the making of any order in connection with or in consequence of the exercise of that jurisdiction.
(1) The Upper Tribunal has the function of deciding applications transferred to it from the Court of Session under section 20(1).
(2) The powers of review of the Upper Tribunal in relation to such applications are the same as the powers of review of the Court of Session in an application to the supervisory jurisdiction of that Court.
(3) In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court.
(4) An order of the Upper Tribunal by virtue of subsection (1)—
(a) has the same effect as the corresponding order granted by the Court of Session on an application to the supervisory jurisdiction of that Court, and
(b) is enforceable as if it were an order so granted by that Court.
(5) Where an application is transferred to the Upper Tribunal by virtue of section 20(1), any steps taken or orders made by the Court of Session in relation to the application (other than the order to transfer the application under section 20(1)) are to be treated as taken or made by the tribunal.
(6) Tribunal Procedure Rules may make further provision for the purposes of supplementing subsection (5).
(1) There are to be rules, to be called “Tribunal Procedure Rules”, governing—
(a) the practice and procedure to be followed in the First-tier Tribunal, and
(b) the practice and procedure to be followed in the Upper Tribunal.
(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.
(3) In Schedule 5—
Part 1 makes further provision about the content of Tribunal Procedure Rules,
Part 2 makes provision about the membership of the Tribunal Procedure Committee,
Part 3 makes provision about the making of Tribunal Procedure Rules by the Committee, and
Part 4 confers power to amend legislation in connection with Tribunal Procedure Rules.
(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing—
(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,
(b) that the tribunal system is accessible and fair,
(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,
(d) that the rules are both simple and simply expressed, and
(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
(5) In subsection (4)(b) “the tribunal system” means the system for deciding matters within the jurisdiction of the First-tier Tribunal or the Upper Tribunal.
(1) The Senior President of Tribunals may give directions—
(a) as to the practice and procedure of the First-tier Tribunal;
(b) as to the practice and procedure of the Upper Tribunal.
(2) A Chamber President may give directions as to the practice and procedure of the chamber over which he presides.
(3) A power under this section to give directions includes—
(a) power to vary or revoke directions made in exercise of the power, and
(b) power to make different provision for different purposes (including different provision for different areas).
(4) Directions under subsection (1) may not be given without the approval of the Lord Chancellor.
(5) Directions under subsection (2) may not be given without the approval of—
(a) the Senior President of Tribunals, and
(b) the Lord Chancellor.
(6) Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
(a) the application or interpretation of the law;
(b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal.
(7) Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of criteria for determining which members of the First-tier Tribunal or Upper Tribunal may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Lord Chancellor.
(1) A person exercising power to make Tribunal Procedure Rules or give practice directions must, when making provision in relation to mediation, have regard to the following principles—
(a) mediation of matters in dispute between parties to proceedings is to take place only by agreement between those parties;
(b) where parties to proceedings fail to mediate, or where mediation between parties to proceedings fails to resolve disputed matters, the failure is not to affect the outcome of the proceedings.
(2) Practice directions may provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(3) The provision that may be made by virtue of subsection (2) includes provision for a member to act as a mediator in relation to disputed matters in a case even though the member has been chosen to decide matters in the case.
(4) Once a member has begun to act as a mediator in relation to a disputed matter in a case that is the subject of proceedings, the member may decide matters in the case only with the consent of the parties.
(5) Staff appointed under section 40(1) may, subject to their terms of appointment, act as mediators in relation to disputed matters in a case that is the subject of proceedings.
(6) In this section—
“member” means a judge or other member of the First-tier Tribunal or a judge or other member of the Upper Tribunal;
“practice direction” means a direction under section 23(1) or (2);
“proceedings” means proceedings before the First-tier Tribunal or proceedings before the Upper Tribunal.
(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal—
(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and
(b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.
(2) The matters are—
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal’s functions.
(3) Subsection (1) shall not be taken—
(a) to limit any power to make Tribunal Procedure Rules;
(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.
(4) A power, right, privilege or authority conferred in a territory by subsection (1) is available for purposes of proceedings in the Upper Tribunal that take place outside that territory (as well as for purposes of proceedings in the tribunal that take place within that territory).
Each of the First-tier Tribunal and the Upper Tribunal may decide a case—
(a) in England and Wales,
(b) in Scotland, or
(c) in Northern Ireland,
even though the case arises under the law of a territory other than the one in which the case is decided.
(1) A sum payable in pursuance of a decision of the First-tier Tribunal or Upper Tribunal made in England and Wales—
(a) shall be recoverable as if it were payable under an order of a county court in England and Wales;
(b) shall be recoverable as if it were payable under an order of the High Court in England and Wales.
(2) An order for the payment of a sum payable in pursuance of a decision of the First-tier Tribunal or Upper Tribunal made in Scotland (or a copy of such an order certified in accordance with Tribunal Procedure Rules) may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(3) A sum payable in pursuance of a decision of the First-tier Tribunal or Upper Tribunal made in Northern Ireland—
(a) shall be recoverable as if it were payable under an order of a county court in Northern Ireland;
(b) shall be recoverable as if it were payable under an order of the High Court in Northern Ireland.
(4) This section does not apply to a sum payable in pursuance of—
(a) an award under section 16(6), or
(b) an order by virtue of section 21(1).
(5) The Lord Chancellor may by order make provision for subsection (1) or (3) to apply in relation to a sum of a description specified in the order with the omission of one (but not both) of paragraphs (a) and (b).
(6) Tribunal Procedure Rules—
(a) may make provision as to where, for purposes of this section, a decision is to be taken to be made;
(b) may provide for all or any of subsections (1) to (3) to apply only, or not to apply except, in relation to sums of a description specified in Tribunal Procedure Rules.
Tribunals, Courts and Enforcement Act 2007