Deregulation (Model Appeal Provisions) Order (Northern Ireland) 1997

Link to law: http://www.legislation.gov.uk/nisr/1997/269/made/data.htm?wrap=true
Published: 1997-06-04

Statutory Rules of Northern Ireland
1997 No. 269

DEREGULATION
Deregulation (Model Appeal Provisions) Order (Northern Ireland) 1997

Made
4th June 1997

Coming into operation
16th July 1997

The Department of Economic Development, in exercise of the powers conferred on it by Article 10 of the Deregulation and Contracting Out (Northern Ireland) Order 1996(1) and of every other power enabling it in that behalf, hereby makes the following Order:

Citation and commencement

1.  This Order may be cited as the Deregulation (Model Appeal Provisions) Order (Northern Ireland) 1997 and shall come into operation on 16th July 1997.

Model Provisions

2.  The Department of Economic Development hereby prescribes, as model provisions with respect to appeals against enforcement action, the model rules set out in the Schedule, of which—

(a)the Rules contained in Chapter I of the model Rules concern the conduct of appeals against enforcement action, and

(b)the rule set out in Chapter II of the model Rules determines the procedure to be followed before enforcement action is taken,

with a view to their being incorporated, if thought fit and with or without modifications, in enactments which include provision the effect of which is to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise.

3.  In any enactment, any reference to the “model provisions with respect to appeals” shall, unless the contrary intention appears, be taken as a reference to the provisions set out in the Schedule.

Sealed with the Official Seal of the Department of Economic Development on

L.S.
M. J. Briant
Assistant Secretary
4th June 1997.

Article 2

SCHEDULEMODEL RULES FOR APPEALSArrangement of RulesChapter IRules Concerning the Conduct of Appeals

Part IIntroduction

Interpretation

The Registrar and the name and address of the tribunal

Part IIMaking an Appeal

Time for and manner of making an appeal

Notice of appeal

Additional material

Appointment of tribunal

Amendment of grounds of appeal

Withdrawal of appeal

Part IIIResponse to the Appeal

Acknowledgement and notification

Costs warning

Incomplete appeals

Reply by the Authority

Further documents

Withdrawal of opposition

Part IVPreparation for Deciding the Appeal

Power to make interim orders and directions

Representations by interested persons

Experts

Legal assessor

Part VDecisions of the Tribunal without a Hearing

Power to decide the appeal without a hearing

Part VIThe Hearing

Arrangements for the hearing

Fixing the date for the hearing

Action by appellant and Authority on receiving notice of hearing

Alteration of place or time of the hearing

Publication of notice of hearings

Pre-hearing review

Pre-hearing review

Procedure at the hearing etc.

Hearing to be in public

Procedure at the hearing

Absence of a member of the tribunal

Evidence

Summoning or citing of witnesses

Part VIIDecision of the Tribunal

The decision

Publication

Costs and expenses

Part VIIISupplementary

Further appeals

Irregularities

Documents etc.

General power of the tribunal

Chapter IIRule Determining the Procedure to be followed before taking Enforcement Action

Procedure to be followed before taking enforcement action

Chapter IModel Rules Concerning the Conduct of Appeals

Part IIntroduction

Interpretation

1.  The following definitions apply where, by virtue of any provision in any enactment, the Rules in this Chapter have effect in relation to appeals against the taking of enforcement action under any enactment—

“the Authority” means the person taking the enforcement action in question;

“the Chairman” means the person appointed to be Chairman of the tribunal in relation to an appeal under these Rules;

“disputed action” means the enforcement action taken by the Authority against which an appeal is made under these Rules;

“document” includes information recorded in writing or in any other manner;

“enforcement action” has the same meaning as in Article 9(8) of the Deregulation and Contracting Out (Northern Ireland) Order 1996(2);

“the Registrar” means the person appointed under rule 2 to be Registrar of tribunals;

“the responsible Department” means the Department responsible for the subject matter of the enforcement action in question (and in any case where two or more Departments share such responsibility, means those Departments acting together);

“the tribunal” means a particular tribunal established for the purposes of deciding an appeal under these Rules.

The Registrar and the name and address of the tribunal

2.—(1) Where, by virtue of any provision in any enactment, these Rules come into effect in relation to appeals against the taking of enforcement action under any enactment, the responsible Department must as soon as practicable after such coming into effect—

(a)appoint a barrister or solicitor of at least seven years standing, to be Registrar of tribunals established for the purpose of hearing such appeals; and

(b)publish in such manner as it thinks appropriate the name and the address of such tribunals and, if there is more than one address, indicate which address applies in which cases.

(2) The terms and conditions on which the Registrar is appointed, including those concerning remuneration and allowances, shall be determined by the responsible Department.

(3) The Registrar shall have the functions conferred on him by these Rules, and must carry out his functions in relation to each appeal under these Rules in cooperation with the Chairman, and generally carry out his functions with a view to ensuring that appeals to tribunals established under these Rules are conducted as fairly, efficiently and economically as possible.

(4) The Registrar may, with the approval of the responsible Department, appoint such staff as he may determine, and may determine the terms and conditions on which they are appointed.

(5) Any function of the Registrar in relation to a particular appeal, other than his functions under rule 15, may be performed on his behalf by any other member of his staff whom he may authorise for the purpose, and references to the Registrar shall be construed accordingly.

Part IIMaking an Appeal

Time for and manner of making an appeal

3.—(1) An appeal to the tribunal must be made by sending a notice of appeal to the Registrar so that it is received not later than the end of the period of twenty eight days beginning with the date on which the disputed action is taken.

(2) The Registrar may extend the time limit imposed by paragraph (1), whether or not it has already expired, but must not do so unless he is satisfied—

(a)that the circumstances are such that it would not be reasonable to expect the appellant to comply (or, as the case may be, to have complied) with the time limit; and

(b)that not to extend the limit would result in substantial injustice.

(3) Where the appellant considers it likely that a notice of appeal will be received outside the time limit, he may include with the notice of appeal a statement of the reasons on which he relies to justify the delay, and the Registrar must consider any such statement in deciding whether or not to extend the time limit.

Notice of appeal

4.—(1) The notice of appeal must state the name and address of the appellant and must contain sufficient information to identify the disputed action.

(2) The notice of appeal must set out the grounds of appeal in sufficient detail to indicate—

(a)to what extent (if any) the appellant contends that the disputed action was based on an error of fact;

(b)to what extent (if any) he contends that the disputed action was wrong in law; and

(c)to what extent (if any) he is appealing against the Authority’s exercise of its discretion in relation to the action.

(3) The appellant or his representative must sign the notice of appeal.

(4) The Registrar must make available on request a form which may be used for making an appeal, but a notice of appeal need not be made using such a form.

Additional material

5.—(1) The appellant must send the material required by paragraphs (2) and (3) (the “additional material”) to the Registrar either—

(a)with his notice of appeal; or

(b)so that it is received not later than the end of the period of twenty eight days beginning with the date on which he sent the notice of appeal to the Registrar.

(2) The appellant must send to the Registrar—

(a)a copy of any document he has received from the Authority notifying him of the disputed action;

(b)a copy of any notice he has received from the Authority, either before or after the Authority took the disputed action, explaining its reasons for considering or taking the action; and

(c)two copies of every other document on which the appellant relies for the purposes of the appeal.

(3) The appellant must send to the Registrar a document stating—

(a)the name and address and the profession of the person (if any) representing the appellant, and whether the tribunal should send documents concerning the appeal to the representative instead of to the appellant;

(b)whether the appellant requests that the appeal should be decided at an oral hearing; and

(c)if in the opinion of the appellant any other person has direct interest in the subject matter of the appeal, the name and address of such other person.

(4) Where the Registrar is satisfied that it would not be reasonable to expect the appellant to send any document, or documents of any description, within the time limit mentioned in paragraph (1), he may extend the time limit in relation to that document or documents of that description.

Appointment of tribunal

6.—(1) There shall be a panel of chairmen.

(2) Appointments shall be made to the panel of chairmen, by the Lord Chancellor from persons being a barrister or solicitor of at least seven years standing.

(3) A person appointed to the panel of chairmen—

(a)must be appointed (or reappointed) for a period not exceeding five years; but

(b)may be removed from office by the Lord Chancellor on the grounds of incapacity or misbehaviour,

and subject to that, shall hold and vacate office in accordance with the terms of his appointment.

(4) On receiving a notice of appeal under rule 3, the Registrar must without delay request the responsible Department to assign a Chairman of the tribunal and appoint two other members of the tribunal to decide the appeal.

(5) The responsible Department must assign the Chairman within fourteen days and the other members of the tribunal within twenty eight days of receiving the request under paragraph (4).

(6) The Chairman must be assigned from the panel of chairmen.

(7) Of the other members of the tribunal—

(a)one must be a person whom the responsible Department considers by reason, of experience or otherwise, to have special knowledge of matters likely to be considered by the tribunal; and

(b)the other must be a person whom the responsible Department considers representative of the interests of persons in relation to whom the Authority has the power to take the enforcement action in question.

(8) The responsible Department may determine the fees and expenses to be paid to the Chairman and members of the tribunal, and any other expenses of the tribunal which are to be defrayed.

Amendment of grounds of appeal

7.—(1) The appellant may at any time before the date by which he must send the additional material under rule 5—

(a)amend the grounds of appeal identified in the notice of appeal; or

(b)withdraw or amend any of the additional material mentioned in rule 5(2)(c) and (3).

(2) After that date, the appellant may amend the notice of appeal or withdraw or amend any of the additional material mentioned in rule 5(2)(c) and (3), or supply any further additional material, only with the leave of the Chairman.

(3) The Chairman must not grant leave under paragraph (2) unless he is satisfied—

(a)that the circumstances are such that it would not be reasonable to expect the appellant to have made the amendment or withdrawal or supplied the material within the time allowed under paragraph (1); and

(b)that the amendment or withdrawal (if made), or the material (if supplied), is capable of significantly affecting the outcome of the appeal.

(4) Where the Chairman grants leave under paragraph (2), he may do so on such terms as he thinks fit.

(5) The appellant must send two copies of every amendment or every item of additional material to the tribunal.

(6) On receiving the copies required under paragraph (5), the Registrar must without delay—

(a)send one of the copies to the Authority; and

(b)where the copy is sent after the Authority has sent its reply to the tribunal, invite the Authority to send a revised reply to the tribunal so that it is received before the end of the period of seven days beginning with the date of the invitation.

(7) The tribunal must not decide the appeal before the end of any period allowed under paragraph (6)(b).

Withdrawal of appeal

8.—(1) The appellant may withdraw his appeal at any time before the date by which he must send the additional material under rule 5.

(2) After that date the appellant may withdraw his appeal only with the leave of the Chairman.

(3) Where an appeal is withdrawn, any interim order made or direction given under rule 15 shall immediately cease to have effect.

(4) Where an appeal is withdrawn, a fresh appeal may not be brought in relation to the disputed action.

Part IIIResponse to the Appeal

Acknowledgement and notification

9.—(1) On receiving the notice of appeal and any additional material, the Registrar must in each case without delay—

(a)send an acknowledgement of its receipt to the appellant; and

(b)send a copy of it to the Authority.

(2) This rule is subject to rule 10.

Costs warning

10.—(1) Where a notice of an appeal has been received by the Registrar, and at the end of the period within which the appellant is required to send the additional material under rule 5, the Registrar is of the opinion—

(a)that it is so unlikely that the appeal will succeed on the basis of the notice and any additional material supplied that to proceed with it would be unfair to the Authority; or

(b)that the notice and any additional material supplied reveal no valid grounds of appeal, or that the notice is otherwise misconceived,

he may, before sending the additional material to the Authority, serve a notice to that effect on the appellant.

(2) A notice under this rule must state the Registrar’s reasons for his opinion and inform the appellant—

(a)that the appeal will not proceed unless the appellant informs the Registrar in writing within fourteen days of the date of the notice that he wishes it to proceed; and

(b)that if he makes such a statement, and the appeal is subsequently withdrawn or decided against him, he may be liable, subject to the limitations imposed by rule 32, to pay the costs incurred by the Authority in connection with the appeal.

(3) Where a notice is given under this rule in relation to an appeal, unless the appellant informs the Registrar in writing before the end of the period of fourteen days starting with the date of the notice, that he wishes to proceed with the appeal—

(a)no further proceedings shall be taken in relation to the appeal; and

(b)at the end of the period, any interim order made or direction given under rule 15 immediately ceases to have effect.

Incomplete appeals

11.—(1) Where notice of an appeal and additional material have been received by the Registrar, and he considers that the appeal could be decided more fairly and efficiently if the appellant provided further additional material, the Registrar may serve on the appellant a notice to that effect, inviting him to supply that material to the Registrar within fourteen days of the date of the notice.

(2) Where the Registrar serves a notice under paragraph (1), he must at the same time inform the Authority that he has done so.

(3) Where the Registrar has served a notice under paragraph (1) on the appellant, the time limit imposed by rule 12 shall not begin until the expiry of the period within which the further additional material may be supplied.

(4) The Registrar must without delay send to the Authority a copy of any material he receives under this rule.

Reply by the Authority

12.—(1) The Authority must send to the Registrar the documents required under this rule and rule 13 (“the reply”) so that they are received not later than the end of the period of twenty eight days beginning with the first date on which it has received the copies of the notice of appeal and of the additional material.

(2) The reply must—

(a)acknowledge that the Authority has received the notice of appeal and the additional material;

(b)indicate whether the Authority seeks to uphold the disputed action; and

(c)give the information required under paragraph (3).

(3) The following information is required under this paragraph—

(a)the address of the Authority;

(b)the name, address and profession of the person (if any) representing the Authority and whether the tribunal should send documents concerning the appeal to the representative rather than to the Authority;

(c)if in the opinion of the Authority any other person has a direct interest in the subject matter of the appeal, the name and address of such other person.

(4) The Registrar may extend the time limit imposed by paragraph (1), but must not do so unless he is satisfied—

(a)that the circumstances are such that it would not be reasonable to expect the Authority to comply with the time limit; and

(b)that it is necessary to extend the time limit in order to avoid a significant risk of harm to any person.

(5) On receiving the reply, the Registrar must without delay send a copy to the appellant.

Further documents

13.  Where the Authority seeks to uphold the disputed action, it must send to the Registrar—

(a)a statement summarising its answer to each ground of appeal supplied by the appellant;

(b)two copies of every document on which it relies for the purposes of opposing the appeal;

(c)where the appellant has not sent to the Registrar a copy of a notice giving the Authority’s reasons as mentioned in rule 5(2)(b), a statement explaining why it took the disputed action; and

(d)a statement indicating whether or not the Authority requests an oral hearing.

Withdrawal of opposition

14.  Where the Authority states in the reply or at any time in writing that it does not seek to uphold the disputed action, the tribunal must without delay allow the appeal.

Part IVPreparation for Deciding the Appeal

Power to make interim orders and directions

15.—(1) The Chairman may make an order granting on an interim basis any remedy which the tribunal would have the power to grant in its final decision, or otherwise give an interim direction in relation to the enforcement action in question.

(2) An order may be made or a direction given under this rule of the Chairman’s own motion or on the application of—

(a)the appellant; or

(b)any interested person whom the Registrar is required to invite to make representations under rule 16.

(3) Where an application is made for an order or direction under this rule before the appointment of the Chairman, the order or direction may be made or given by the Registrar on a temporary basis.

(4) An order made or direction given by the Registrar under paragraph (3) is subject to the decision of the Chairman, and when the Chairman has been appointed, he must without delay either affirm the order or direction (with or without variation) or discharge it.

(5) Before making, giving or affirming an order or direction under this rule, the Chairman or Registrar must give the Authority an opportunity to object, and, subject to paragraph (6), must consider any such objection.

(6) In an urgent case, the Chairman or Registrar may make an order or give a direction under this rule before considering any objection made by the Authority, but he must consider whether to revoke or vary the order or direction in the light of any such objection.

(7) The Chairman or Registrar may exercise his power to make, give or affirm an order or direction under this rule only if he is satisfied that—

(a)failure to do so will deprive the appellant of the substance of the remedy which may be available if the appeal is successful; and

(b)such an order or direction, if given or made, will not cause significant risk of harm to any person.

(8) Any order or direction under this rule is subject to the tribunal’s final decision under rule 30.

Representations by interested persons

16.—(1) The Registrar must as soon as practicable send to—

(a)any person named by the appellant or the Authority as having a direct interest in the subject matter of the appeal; and

(b)any other person whom the Chairman is satisfied has such a direct interest,

copies of the documents supplied by each party in relation to the appeal, together with an invitation to send written representations to the tribunal so that they are received before the end of a period of twenty one days beginning with the date of that invitation.

(2) The Registrar must as soon as practicable send to each of the parties a copy of any representations received under this rule, together with an invitation to send written comments on them to the tribunal so that they are received before the end of the period of seven days beginning with the date of that invitation.

(3) The tribunal must not decide the appeal before—

(a)the end of the period allowed for making representations under paragraph (1); or

(b)the end of any period allowed for making comments under paragraph (2),

whichever is the later.

Experts

17.—(1) The Chairman may, if he thinks that any technical question arises in relation to the appeal on which it would be desirable for the tribunal to have the assistance of an expert, appoint a person having appropriate qualifications to enquire into and report on the matter and, if either party requests, to attend the hearing and give evidence.

(2) The Registrar must supply the Authority and the appellant with a copy of any report received under paragraph (1) in advance of the hearing.

(3) The tribunal shall pay such fees as it may determine to any person appointed under this rule.

Legal assessor

18.—(1) The Chairman may, if he thinks that a question of law arises in relation to the appeal on which it would be desirable to have the advice of a lawyer, appoint a solicitor or barrister to give such advice.

(2) The tribunal shall pay such fees as it may determine to any person appointed under this rule.

Part VDecisions of the Tribunal without a Hearing

Power to decide the appeal without a hearing

19.—(1) Where, at the end of the period within which the Authority is required to send its reply—

(a)the Authority has not done so; or

(b)neither the appellant nor the Authority has requested an oral hearing,

and the Chairman does not consider that a hearing is necessary, the tribunal may decide the appeal without a hearing.

(2) Subject to paragraph (3) and rules 7 and 16, where the tribunal may decide the appeal under this rule, it must do so as soon as practicable after the end of the period mentioned in paragraph (1).

(3) Before deciding the appeal the tribunal must consider—

(a)the notice of the appeal and the appellant’s additional material;

(b)any reply sent by the Authority;

(c)any representations or comments received under rule 16,

and may if it thinks fit direct the appellant or the Authority to provide in writing further information about any matter relevant to the appeal.

(4) A direction under paragraph (3) must include a statement of the time allowed for complying with it, and where the appellant or the Authority has not complied with such a direction within the time allowed, the tribunal may—

(a)decide the appeal on the basis of the material available; or

(b)apply to the county court for an order requiring a party to comply with the tribunal’s direction.

(5) Where the tribunal delays its decision so that it can consider information provided under paragraph (3) or representations received under rule 16, it must send to the appellant and the Authority a notice giving the reasons for the delay, and stating when it expects to decide the appeal.

Part VIThe Hearing

Arrangements for the hearing

Fixing the date for the hearing

20.—(1) The following Rules of this Part apply where the appeal is to be decided on the basis of an oral hearing.

(2) When the tribunal has received the notice of appeal, the additional material and the reply, the Registrar must without delay fix a date for the hearing, bearing in mind—

(a)the seriousness and complexity of the case;

(b)the convenience of the parties;

(c)whether there is to be a pre-hearing review under rule 24;

(d)whether representations are to be (or have been) invited under rule 16.

(3) The Registrar must serve on the parties a notice informing each of them—

(a)of the time and place of the hearing of the appeal;

(b)where there is to be a pre-hearing review, of the time and place of the review and the powers of the Chairman in relation to the review.

(4) The date fixed for the hearing must be no less than twenty one days and no more than six weeks after the date of the notice under paragraph (3).

(5) The notice must include guidance in a form approved by the Chairman, regarding the procedure which will apply to the hearing, including in particular information about—

(a)attending the hearing and bringing documents and evidence;

(b)calling witnesses and the power of the tribunal to summon witnesses;

(c)the right to be represented or assisted at the hearing;

(d)the right to receive reasons in writing for the determination made by the tribunal;

(e)the limitation imposed by rule 32 on any award of costs which the tribunal is able to make; and

(f)the right to appeal on a question of law arising from the decision of the tribunal.

Action by appellant and Authority on receiving notice of hearing

21.—(1) No less than fourteen days before the date fixed for the hearing, the appellant and the Authority—

(a)must each inform the tribunal whether or not he (or it) intends to appear or be represented at the hearing, and which, if any, witnesses he (or it) intends to call; and

(b)may each, if he (or it) does not intend to appear or be represented at the hearing, send to the Registrar further written representations in support of material already sent to the Registrar.

(2) The Registrar must as soon as practicable send to each of the parties a copy of any representations received under this rule.

Alteration of place or time of the hearing

22.—(1) The Registrar may alter the time and place of the hearing—

(a)where both the appellant and the Authority agree; or

(b)in exceptional circumstances, provided that the altered date of the hearing is not earlier than the original date.

(2) Where the Registrar alters the time or place of the hearing under paragraph (1)(b), he must without delay inform the appellant and the Authority in writing of the alteration and the reasons for it.

Publication of notice of hearings

23.—(1) The Registrar must publish a list of all appeals for which an oral hearing is to be held and of the time and place fixed for each hearing. Publication may be in such manner as the Chairman may direct, taking into account the need for transparency, the importance of each appeal and the degree of public interest in each appeal.

(2) The Registrar must, subject to paragraph (3), make available on request the material supplied by each party in relation to each appeal for which an oral hearing is to be held.

(3) Where any material supplied by either party contains any matter which is confidential, the party may request that for that reason it is not made available under this rule, or is made available in an amended form, and in such a case the material must be made available to such extent and in such form as the Chairman thinks appropriate, and the Chairman may make such deletions from any material as may be necessary for the purposes of complying with this paragraph.

(4) For the purposes of this rule, a matter is confidential if—

(a)it relates to intimate personal or financial circumstances, is commercially sensitive, or consists of information communicated or obtained in confidence; or

(b)its disclosure would be contrary to the interests of national security.

(5) This rule does not affect any duty of confidentiality imposed by or under any other enactment or by any rule of law.

Pre-hearing review

Pre-hearing review

24.—(1) Where the tribunal has received the notice of appeal, the additional material and the reply, the Chairman must without delay decide whether it is appropriate to conduct a pre-hearing review with a view to—

(a)identifying the issues which are likely to be material to the tribunal’s decision;

(b)expediting the proceedings at the hearing; and

(c)assisting his management of the appeal.

(2) The Chairman may, if he is satisfied that to do so will produce a substantial saving in the cost of the appeal, determine at the pre-hearing review any question of law arising in relation to the appeal which he is satisfied will significantly affect its outcome.

(3) The Registrar must as soon as practicable send to each of the parties a copy of any determination made under paragraph (2).

(4) A determination under paragraph (2) may be varied or reversed by the tribunal at the hearing of the appeal, but otherwise it shall have effect throughout the hearing.

Procedures at the hearing etc.

Hearing to be in public

25.  The hearing must be in public except where the tribunal is satisfied that, because the subject matter to be considered by the tribunal—

(a)relates to intimate personal or financial circumstances, is commercially sensitive, or consists of information communicated or obtained in confidence; or

(b)is a matter whose disclosure would be contrary to the interests of national security,

or for any other reason, it is fair and reasonable for the hearing, or any part of the hearing, to be conducted in private.

Procedure at the hearing

26.—(1) At the beginning of the hearing the Chairman must explain the order of proceedings which the tribunal proposes to adopt.

(2) The tribunal must conduct the hearing in the manner which it considers most suitable to clarification of the issues before it and generally to fair handling of the proceedings; it shall so far as appears appropriate seek to avoid formality in its proceedings.

(3) The appellant and the Authority may appear at the hearing and may be represented or assisted by any person.

(4) If the appellant or the Authority fails to attend or be represented at the hearing, the tribunal may hear and, provided they have considered any representations made by the party under rule 21(1)(b), determine the appeal in that party’s absence.

(5) The tribunal must consider any representations made by an interested person under rule 16.

(6) Subject to paragraph (7), the appellant and the Authority are entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal both on the evidence and generally on the subject matter of the appeal.

(7) The tribunal may at any point in the hearing limit the rights of either party under paragraph (6), provided that it is satisfied that to do so will not prevent the appeal from being decided fairly.

(8) The tribunal may adjourn the hearing, but must not do so unless it is satisfied that it is necessary to do so in order for the appeal to be decided fairly.

(9) The time and place fixed for an adjourned hearing must be—

(a)announced before the adjournment; or

(b)published in accordance with rule 23.

Absence of a member of the tribunal

27.  The tribunal may continue to hear the appeal in the absence of one member of the tribunal other than the Chairman, and the tribunal shall be taken to be properly constituted in those circumstances.

Evidence

28.—(1) Evidence before the tribunal may be given orally or, if the tribunal so orders, by affidavit or written statement, but the tribunal may at any stage of the proceedings require the personal attendance of any deponent or maker of a written statement.

(2) The tribunal may receive evidence of any fact which appears to the tribunal to be relevant, whether or not the evidence—

(a)would be admissible in a court of law; or

(b)was available to the Authority when the disputed action was taken.

(3) The tribunal may require any witness to give evidence on oath or affirmation which may be administered for the purpose by the Chairman.

Summoning or citing of witnesses

29.—(1) Subject to paragraphs (2) and (3), the tribunal may, on the application of either party, issue a summons, requiring any person in Northern Ireland—

(a)to attend as a witness at the hearing, at the time and place set out in the summons; and

(b)to answer any questions or produce any documents or other material in his possession or under his control which relate to any matter in question in the appeal.

(2) No person may be required to attend in compliance with a summons under this rule unless—

(a)he has been given at least seven days' notice of the hearing; and

(b)he is paid the necessary expenses of his attendance.

(3) No person may be required in compliance with a summons under this rule to give any evidence or produce any document or other material that he could not be required to produce in legal proceedings.

(4) Where a person summoned under paragraph (1)—

(a)refuses or neglects, without sufficient cause, to appear or to produce any documents required by the summons to be produced; or

(b)having been so summoned, refuses to be sworn or to give evidence,

a judge may, on the application of the Chairman, exercise his powers under Articles 54 and 55 of the County Courts (Northern Ireland) Order 1980(3) in relation to that person as though the person had been summoned in pursuance of County Court Rules as a witness in a county court.

(5) In this rule, “legal proceedings” means proceedings in a county court.

Part VIIDecision of the Tribunal

The decision

30.—(1) The tribunal must decide, taking into account in particular the appellant’s grounds of appeal—

(a)whether the disputed action is justified on its merits;

(b)what (if any) enforcement action should be taken in relation to the matter; and

(c)what (if any) other action should be taken by either party in relation to the matter,

and it is the duty of the parties to give effect to its decision.

(2) A decision of the tribunal may be taken by a majority, and the decision must record whether it was unanimous or taken by a majority; provided that where the tribunal is constituted by two members the Chairman shall have a second or casting vote.

(3) The decision of the tribunal may be made and announced at the end of the hearing, but in any event, whether there has been a hearing or not, must be recorded immediately it is made in a document which must also contain a statement of the reasons for the decision and must be signed and dated by the Chairman.

(4) Where the decision is not announced at the end of the hearing, the tribunal must—

(a)within two days of the end of the hearing, inform each party of its decision under paragraph (1)(a); and

(b)as soon as reasonably possible, send to each party a copy of the document mentioned in paragraph (3).

(5) Except where the decision is announced at the end of a hearing, it shall be treated as having been made on the day on which a copy of the document mentioned in paragraph (3) is sent to the appellant.

(6) Any award made by the tribunal may be enforced and shall have the like effect as a decree of a county court.

Publication

31.—(1) The responsible Department must make such arrangements for the publication of the tribunal’s decisions as it considers appropriate, but in doing so must have regard to the need to preserve the confidentiality of any evidence heard in private or of any confidential material supplied to the tribunal.

(2) For the purposes of any arrangements made under paragraph (1), the Registrar may make any necessary deletions from the text of a decision.

Costs and expenses

32.—(1) The tribunal may make an order awarding costs to or against the appellant or the Authority.

(2) The tribunal must, unless it is satisfied that it would not be just to do so, make an order under paragraph (1) against the appellant where the appeal has been decided against him and a notice was issued to him under rule 10.

(3) An order under paragraph (1) may require the party against whom it is made to pay to the other party either—

(a)a specified sum not exceeding the relevant costs incurred by that other party; or

(b)the whole or part of those costs as taxed (if not otherwise agreed),

and, in determining how much the party is required to pay, the tribunal must take account of the conduct of both parties in relation to the appeal.

(4) The relevant costs of a party are the costs incurred by the party in—

(a)attending the hearing, including loss of income;

(b)reimbursing the expenses of witnesses attending the hearing on his behalf; or

(c)being represented at the hearing, where the tribunal consider that it was desirable for him to be represented and that the costs so incurred were reasonable.

(5) Any costs required by an order under this rule to be taxed shall be taxed in the same manner as costs in equity suits or proceedings in the county court.

Part VIIISupplementary

Further appeals

33.—(1) The appellant or the Authority may, at any time during the period of three months beginning with the day on which the decision is made, bring a further appeal on any question of law arising from the decision of the appeal by the tribunal.

(2) Any further appeal under this rule must be made to the High Court.

(3) The High Court may confirm, vary, set aside, revoke or remit the decision of the tribunal, and may make any order the tribunal could have made.

(4) No appeal to the Court of Appeal may be brought from a decision of the High Court under this rule except with the leave of the High Court or the Court of Appeal.

Irregularities

34.—(1) Any irregularity resulting from failure to comply with any provision of these Rules before the tribunal has reached its decision shall not of itself render the proceedings void.

(2) Where any such irregularity comes to the attention of the tribunal, the tribunal may, and must if it considers any person may have been prejudiced by the irregularity, give such directions as it thinks just, before reaching its decision, to cure or waive the irregularity.

(3) Clerical mistakes in any document recording a direction, order or decision of the Chairman or tribunal, or errors arising in such a document from an accidental slip or omission, may be corrected by the Chairman by certificate under his hand.

Documents etc

35.—(1) Anything required to be sent to or served on any person for the purposes of the appeal may be—

(a)delivered to the person personally;

(b)sent to him at his appropriate address by post or by recorded delivery; or

(c)sent to him by fax or E-mail (electronic mail), or other similar means which are capable of producing a document containing the text of the communication, in which case the document shall be regarded as sent when it is received in a legible form.

(2) A person’s appropriate address for the purposes of paragraph (1) is—

(a)in the case of a document directed to the tribunal or to the Registrar, the address published under rule 2;

(b)in the case of a document directed to the appellant or his representative, the address stated in the notice of appeal in accordance with rule 4 or such other address as may be subsequently notified to the tribunal;

(c)in the case of a document addressed to the Authority, the address stated in the reply in accordance with rule 12 or such other address as may be subsequently notified to the tribunal.

(3) Anything required to be sent to or served on a company is duly sent or served if it is sent to or served on the secretary of the company at its principal or registered address for the time being.

(4) Anything required to be sent or delivered to or served on a partnership is duly sent or served if it is sent to or served on any one of the partners for the time being.

(5) Where anything is sent to any person by registered post or recorded delivery, it shall be treated as if it had been received by that person on the date on which it is received for dispatch by the Post Office.

General power of the tribunal

36.  Subject to the provisions of these Rules, the tribunal may regulate its own procedure.

Chapter IIRule Determining the Procedure to be followed before taking Enforcement Action

Procedure to be followed before taking enforcement action

37.—(1) Subject to paragraph (2), before an enforcement officer takes any enforcement action against any person, the officer—

(a)must give to that person a written notice stating—

(i)that he is considering taking the action and the reasons why he is considering it, and

(ii)that the person may, within a period specified in the notice, make written representations to that officer or, if he so requests, make oral representations to the officer in the presence of a senior officer of the Authority who shall be appointed by the Authority;

(b)must consider any representations which are duly made and not withdrawn; and

(c)where, having considered any such representations, he decides to take the enforcement action, must give to the person a further written notice stating the reasons for his decision.

(2) Nothing in paragraph (1) prevents an enforcement officer from taking immediate enforcement action against any person, or requiring any person to take immediate remedial action, in any case where it appears to the officer to be necessary to do so; but where the officer does so he must as soon as practicable give to that person a written notice explaining why it appeared to be necessary to take such action or impose such a requirement.

(3) Nothing in paragraph (1) or (2) requires any enforcement officer to disclose any information the disclosure of which would be contrary to the public interest.

(4) Where—

(a)an enforcement officer has taken enforcement action against any person; and

(b)any enactment (whenever passed or made) confers a right of appeal against such action,

the officer must as soon as practicable give to that person a written notice explaining how, where, within what period and on what grounds, an appeal may be brought, and whether the enforcement action would be stayed while the appeal were pending.

(5) Where an enforcement officer takes or considers taking enforcement action in relation to any restriction, requirement or condition, he must take reasonable steps to identify any person who—

(a)will or may be required to meet or make a significant contribution towards the cost of observing the restriction or complying with the requirement or condition; or

(b)has supplied, or is to supply, any goods or services to which the enforcement action specifically relates,

and he must give to any person so identified a copy of any notice given under paragraph (4); and paragraphs (1) and (2) apply in relation to any person so identified as if that person was the person against whom the enforcement action is taken or considered.

(6) Expressions used in this rule and in Article 9 of the Deregulation and Contracting Out (Northern Ireland) Order 1996(4) have the same meaning in this rule as they have in that Article.

Explanatory Note

(This note is not part of the Order.)
This Order sets out, in the Schedule to the Order, model provisions with respect to appeals against enforcement action. As required by Article 10 of the Deregulation and Contracting Out (Northern Ireland) Order 1996 (under which the Order is made), the provisions have been prescribed with a view to their being incorporated, if thought fit and with or without modifications, in enactments which include provision the effect of which is to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise.
The Schedule to the Order contains two Chapters.
Chapter 1 sets out model rules concerning the conduct of appeals.
Chapter II sets out a model rule determining the procedure to be followed before enforcement action is taken.


(1)
S.I. 1996/1632 (N.I. 11)

(2)
S.I. 1996/1632 (N.I. 11)

(3)
S.I. 1980/397 (N.I. 3)

(4)
S.I. 1996/1632 (N.I. 11)
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