Employment tribunals and the EAT: revised rules of procedure

A detailed look at the recent changes to the employment tribunal and Employment Appeal Tribunal rules of procedure.

Proposals to reform employment tribunals in England and Wales and Scotland have been given effect by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171) ("the Regulations") and the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001 (SI 2001/1170). Originally due to come into force on 18 April, the changes ultimately took effect on 16 July 2001 (see IRLB 664).

The proposals were made by the Government with the express intention of making the tribunal system fairer and quicker for those with reasonable claims, while penalising employees who bring unmeritorious complaints.

In essence, the new English and Scottish regulations repeal, re-enact and amend the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 (SI 1993/2687) and the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993 (SI 1993/2688) respectively.

The Scottish and English regulations are very similar in substance; to prevent unnecessary duplication, all references to the new legislation throughout this feature relate to the English regulations.

The Regulations apply to all proceedings regardless of when they commenced (reg. 14), and we set out the most significant changes and consider their likely impact on employers and employees bringing and defending claims. We also summarise recent amendments to the Employment Appeal Tribunal Rules 1993 (SI 1993/2854) laid out in the Employment Appeal Tribunal (Amendment) Rules 2001 (SI 2001/ 1128), which also came into force on 16 July (see below at p.7).

THE EMPLOYMENT TRIBUNAL RULES

The Regulations follow the structure of their 1993 counterparts. General regulations precede what are now six schedules containing the rules of procedure for various types of proceedings. Schedule 1 contains the standard rules of procedure ("the rules") to be used in most proceedings before a tribunal (reg. 11(1)). A new Schedule 2 contains amendments to the Schedule 1 rules in cases involving issues of national security (reg. 11(2)). Part 1 of Schedule 3 likewise contains the relevant amendments to be made to the Schedule 1 rules in equal value claims (reg. 11(3)). Where national security issues arise in an equal value claim, further rules are inserted into Schedule 1 by Part 2 of Schedule 3 (reg. 11(4)). Schedules 4, 5 and 6 contain the rules to be used in very specific types of case and have not been substantially amended (see below at p.7).

The overriding objective

Perhaps the most fundamental change is the introduction of an "overriding objective" to deal with cases justly (reg. 10(1)). Regulation 10(2) states that dealing with a case justly includes, so far as is practicable -

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that the case is dealt with expeditiously and fairly.

A tribunal is under a duty to give effect to the overriding objective when it exercises any power given to it by the rules or interprets any rule, and the parties are under a duty to assist it in furthering the objective. An important area where the impact of the overriding objective may be felt is costs, particularly as the financial penalties within the tribunal system have been significantly increased (see opposite). The relevant provisions of reg. 10 are set out in the document extract on p.4.

Although the inclusion of an overarching objective marks a new departure for employment tribunals, it is in similar terms to the overriding objective introduced into the civil court system in England and Wales by Part 1 of the Civil Procedure Rules 1998 (SI 1998/ 3132) ("the CPR"). The CPR, however, contain additional examples of "dealing with a case justly". Rather than "dealing with the case in ways which are proportionate to the complexity of the issues", Part 1.1(2)(c) of the CPR tells judges to deal with the case "in ways which are proportionate (i) to the amount of money involved, (ii) to the importance of the case, (iii) to the complexity of the issues, and (iv) to the financial position of each party". Additionally, Part 1.1(2)(e) of the CPR includes allotting to a case an "appropriate share of the court's resources, while taking into account the need to allot resources to other cases". However, reg. 10(2) of the Regulations is not exhaustive and there is scope for employment tribunals to develop law in this area. It is at least possible that tribunals may draw on the experiences and guidance of judges in the civil courts under the CPR.

Costs

Rule 14(1) of Schedule 1 sets out the circumstances in which a tribunal may order costs against a party. For the first time it is now expressly stated that if a party's representative acts vexatiously, abusively, disruptively or otherwise unreasonably in conducting the proceedings, the tribunal may order costs against the relevant party (but, significantly, not against the representative).

Parties can no longer be penalised with a costs order for bringing or conducting proceedings "frivolously". This term has been replaced by the term "misconceived", which is defined in reg. 2(2) as "including having no reasonable prospect of success". This definition is not exhaustive, allowing tribunals to develop guidance in this area, no doubt in line with the overriding objective.

It is possible, although perhaps unlikely, that the tribunals may interpret the term widely to encompass applicants who have unreasonably refused an offer of settlement far in excess of what they could potentially hope to be awarded by a tribunal, bearing in mind the overriding objective can involve "saving expense".

However, in Telephone Information Services Ltd v Wilkinson1, the EAT emphasised that a claim for unfair dismissal is not simply for a monetary award; it is a claim that the dismissal was unfair. In Wilkinson, the employer applied to have the case struck out on the basis that it was "frivolous" or "vexatious" for him to continue when the employee had been offered what was at that time the maximum award that could be awarded by a tribunal for unfair dismissal. The tribunal disagreed. As the employer had not offered to concede liability, the employee was entitled to proceed. On that basis, the term "no reasonable prospect of success" should similarly apply only to liability.

Under the old rules, once a tribunal decided to make an order of costs, it could not of its own volition order a specified sum exceeding £500, unless it ordered a detailed assessment of costs (which was, and will probably remain, rare). Rule 14(3)(a) raises this £500 threshold substantially to £10,000. This amendment is an obvious example of effecting one of the aims behind the tribunal reforms, namely, to discourage weak or ill-advised applications.

The increase is also significant in that currently legal aid cannot be obtained for proceedings before employment tribunals in England and Wales, although limited legal aid has been provided in Scotland. On 5 July 2001, the Lord Chancellor responded to written questions on this issue. He stated that although there is no material difference between employment tribunals in Scotland and those in England and Wales, the Government has "no plans to make any changes to the provision of public funding for representation before employment tribunals in England and Wales"2.

As we commented in Human rights and employment law, access to legal aid is a relevant factor to be considered in the light of article 6 of the European Convention of Human Rights ("the ECHR"), which guarantees the right to a fair trial. Although much depends on the particular circumstances of any given case when considering whether or not article 6 has been breached, the raising of the potential financial risks to an applicant may have some bearing.

In his 5 July responses (see above), the Lord Chancellor also stated that he is "confident" that the public funding in England and Wales is fully compliant with the ECHR. He indicated that although employment tribunals are excluded from the legal aid system, he has the power under s.6(8)(b) of the Access to Justice Act 1999 to authorise funding in exceptional cases where the Legal Aid Commission asks him to do so.

Case management

Rule 4 has consolidated and simplified the old rules 4 (on further particulars, witness attendance and discovery of documents) and 16 (power to make directions) under the new heading "case management". It does, however, contain some new additions. Rule 4(3) now provides that directions may relate to evidence, including the provision and exchange of witness statements.

The penalties for non-compliance with a direction or an order for the attendance of a witness have also been strengthened. Whereas previously a failure to comply with a direction to provide further particulars, discovery of documents or written answers could lead to the striking out of all or part of the originating application or notice of appearance as appropriate, this penalty can now be imposed, following a hearing, for failure to comply with any direction or witness order. Additionally, non-compliance can now lead to a costs order. In putting these powers into effect, the tribunal must take account of the overriding objective; it will be interesting to see whether this will reduce delays in the tribunal system.

Further strike-out provisions are contained in rule 15 (old rule 13). Under rule 15(2)(c), tribunals may order to be struck out or amended any originating application or notice of appearance (or any part) on the grounds that it is "scandalous, misconceived or vexatious". This does not involve any amendment of substance save that the term "frivolous" has been replaced with the term "misconceived", which, as noted above, includes "having no reasonable prospect of success". This change effectively statutorily reverses the recent Court of Appeal decision in Care First Partnership Ltd v Roffey and others 3.

Similarly, under rule 15(2)(d), a tribunal may strike out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by, or on behalf of, the applicant or the respondent (as the case may be) has been "scandalous, unreasonable or vexatious". Again, the only change is that the word "frivolous" has this time been replaced with the term "unreasonable".

Timing provisions

Regulations 2(6)-(10) introduce new explanatory paragraphs on the time limits set down by the rules. So, for example, reg. 2(6) states that "where any act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation". Then, helpfully, it goes on to say: "For example, a respondent receives a copy of an originating application on 1 October. He must present a written notice of appearance to the Secretary [of the Office of Tribunals ("the Secretary")] within 21 days of receiving the copy. The last day for presentation of the notice is 22 October." Full details of these provisions can be found in the document extract above.

Consolidation

Rule 1 has been amended so that "two or more originating applications may be presented in a single document by applicants who claim relief in respect of the same set of facts." Similarly, rule 3 allows notices of appearance to be consolidated provided that:

  • the respondent intends to resist the applications and the grounds for doing so are the same in each case; or

  • the respondent does not intend to resist the applications.

    Notices of appearance

    Provisions that used to deem notices of appearance presented out of time to include an application for an extension of time have been deleted from the new rules. Thus, a separate application under rule 17 will now be required in this situation.

    Pre-hearing reviews

    If a tribunal decides that a case, or any matter required to be determined by a tribunal, has no reasonable prospect of success following a pre-hearing review, it can order the relevant party to pay a deposit as a condition of being permitted to take part in the proceedings relating to that matter. Rule 7 increases the maximum deposit that can be so ordered from £150 to £500.

    This is a further example of the Government's stated desire to deter applicants from bringing or continuing unmeritorious proceedings.

    Devolution

    Following devolution of power in Wales and Scotland, the Regulations now require the Secretary to inform the Attorney General and National Assembly for Wales or the Advocate General for Scotland and the Lord Advocate (as the case may be) of any proceedings in which a "devolution issue" arises (rule 18). A "devolution issue" is defined in para. 1 of Schedule 8 of the Government of Wales Act 1998 and para. 1 of Schedule 6 to the Scotland Act 1998, as appropriate.

    Dismissals in connection with industrial action

    An applicant may claim that his or her dismissal was automatically unfair if it was on grounds of participation in industrial action, as defined in s.238A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A") (see Unfair dismissal of striking workers). Rule 9 allows a tribunal to adjourn such proceedings where there are proceedings taking place in the civil courts to determine whether an employee taking part in industrial action is protected by the "tort immunity" provisions of the TULR(C)A.

    The President and chairmen

    Regulation 3(1) has been amended to allow the President of the Employment Tribunals (England and Wales) ("the President") to be an advocate or solicitor admitted in Scotland of at least seven years' standing, or a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least seven years' standing. Regulation 5 has been similarly amended in respect of tribunal chairmen.

    Territorial jurisdiction

    The opportunity has not been taken to clarify the territorial jurisdiction of the employment tribunals. As we commented in our Guidance Note on international employment disputes and conflicts of law (International employment disputes - conflicts of law), there is no prima facie territorial jurisdictional limit laid down on tribunals in respect of statutory claims where international conventions do not apply. Regulation 11(5) states:

    "The rules ... shall apply in proceedings to which they relate where -

    (a)the respondent or one of the respondents resides or carries on business in England or Wales; or

    (b)had the remedy been by way of action in the county court, the cause of action would have arisen wholly or partly in England and Wales; or

    (c)the proceedings are to determine a question which has been referred to the tribunal by a court in England and Wales."

    This is in the same form as in the 1993 Regulations. Although it appeared to be treated as jurisdictional by the EAT in Knulty and another v Eloc Electro- Optiek and Communicatie BV4, the regulation is not phrased in that context. It is regrettable that suitable amendments have not been made to clarify the position, particularly if the regulation is intended to confer territorial limits on the tribunal's powers. If the provision is not jurisdictional, it remains the case that under conflicts of law rules the tribunal may have jurisdiction conferred upon it in a situation that does not fall within reg. 11(5), in which case it is unclear what rules will apply in any subsequent proceedings.

    National security

    The most substantial body of amendments comes in the area of national security. Section 193 of the Employment Rights Act 1996 ("the ERA") used to preclude Crown employees certified by a minister of the Crown for the purposes of safeguarding national security from taking advantage of many employment rights contained in the ERA, such as unfair dismissal. Paragraph 1 of Schedule 8 to the Employment Relations Act 1999 ("the 1999 Act"), which came into force on 16 July 2001, removes this bar by substituting a new s.193. This new section re-enacts the current prohibition on members of the Security Service, Secret Intelligence Service or Government Communications Headquarters from bringing claims relating to whistleblowing under Part IVA and s.47B of the ERA but, significantly, goes no further. Thus, even workers employed by these sensitive organisations will be able to assert their other statutory rights under the ERA before an employment tribunal.

    As a result, the 1999 Act amended the Employment Tribunals Act 1996 ("the ETA") to allow for regulations to be made in a number of areas. Under these provisions, amendments have been made to the rules that, essentially, come into play when national security is an issue in proceedings.

    Specifically, rule 8 gives powers to both a minister of the Crown and the tribunal in relation to "Crown employment proceedings", which, by reg. 2(2), has the meaning conferred upon it by s.10(8) of the ETA. Section 10(8) states that proceedings are Crown employment proceedings if the employment to which the complaint relates is -

  • Crown employment; or

  • connected with the performance of functions on behalf of the Crown.

    In Crown employment proceedings, by rule 8(1) a minister of the Crown may, "if he considers it expedient in the interests of national security", direct a tribunal by notice to the Secretary to -

  • sit in private for all or part of the proceedings;

  • exclude the applicant for all of part of the proceedings;

  • exclude the applicant's representative from all or part of the proceedings; and/or

  • take steps to conceal the identity of a particular witness.

    By rule 8(2), a tribunal may, of its own motion and on the same grounds, order anything that a minister may direct under rule 8(1) and, in addition -

  • direct any person to whom any document (including any decision or record of the proceedings) has been provided for the purposes of the proceedings not to disclose any such document or the content thereof to -

    (i)any excluded person;

    (ii)any person excluded because a minister has directed the case to be held in private, or the tribunal has so ordered; or

    (iii)any person who would be excluded if the tribunal ordered their exclusion, from the time when a minister of the Crown informs the tribunal that he or she wishes to address the tribunal with a view to it making such an order under rule 8(3); or

  • take steps to keep secret all or part of the reasons for its decision.

    Under rule 8(3), by informing the Secretary by notice, a minister of the Crown is entitled to address the tribunal if he or she considers it appropriate for a tribunal to make a rule 8(2) order.

    The tribunal remains under a duty to keep under review any order it makes under rule 8(2). It is also under a general duty to ensure that information is not disclosed contrary to the interests of national security when it exercises its functions (rule 8(4)).

    Although article 6 of the ECHR (right to a fair trial) entitles everyone to a public hearing, it states that "the press and public may be excluded from all or part of the trial in the interests of ... national security in a democratic society". Interestingly, it is not clear whether or not this allows the exclusion of the applicant from proceedings he or she has instituted.

    By reg. 11(2), in any case where a minister wishes to address the tribunal under rule 8(3) or directs the tribunal under rule 8(1), or where the tribunal makes a rule 8(2) order, the amendments set out in Schedule 2 apply to Schedule 1. The main modifications are set out below (for full details see the box above).

    National security panels

    The new s.10(2)-(4) of the ETA, inserted by the 1999 Act, allows employment tribunal regulations to make provision for the composition of tribunals in Crown employment proceedings where a minister of the Crown, the President or a regional chairman considers it expedient in the interests of national security. Regulation 6 of the new Regulations is to that effect, allowing the President to select panels of chairmen and lay members to sit in such cases. Regulation 9, on the mechanics of the composition of tribunals, is amended accordingly.

    Special advocates

    By rule 7A(1), where -

  • an unrepresented applicant is excluded from proceedings;

  • an applicant's representative is excluded; or

  • both an applicant and his or her representative are excluded;

    the Attorney General may appoint a special advocate to represent the applicant. Where the applicant has been excluded from all or part of the proceedings, he or she is nevertheless permitted to make a statement to the tribunal before proceedings (or the part of proceedings from which he or she is excluded) have begun (rule 7A(3)).

    Full details of what a special advocate can and cannot do are set out in the box above.

    Criminal offences

    Where a tribunal has been directed or has determined to take steps to conceal the identity of a particular witness or to keep secret all or part of the reasons for its decision (rules 8(1)(d), 8(2)(a) read with 8(1)(d), and 8(2)(c)), by s.10B(2) of the ETA it is an offence to publish -

  • anything likely to lead to the identity of a witness; or

  • the reasons for the tribunal's decision or the part of its reasons that it is directed or has determined to keep secret.

    Where a body corporate (ie a company) commits the offence with the "consent of or connivance of" a director, manager, secretary or other similar officer (or a person purporting to act in any such capacity), or the offence is attributable to their neglect, that person will also be guilty of the offence (s.10B(5)).

    It is a defence to prove that the person was unaware at the time of publication that the restricted matter was included in the publication (s.10B(4)).

    On summary conviction, a person will be liable to pay a fine not exceeding level 5, currently £5,000 (s.10B(3)).

    Schedules 4, 5 and 6

    Schedules 4 and 5 contain the rules on training levy appeals and health and safety improvement or prohibition notices respectively. Neither schedule has been substantively amended, save for the inclusion of rules on "devolution issues". Schedule 6 contains the rules on non-discrimination notices and is widened in scope to include disability discrimination notices issued by the Disability Rights Commission.

    THE EAT RULES

    Changes to the EAT rules of procedure have also been made by the Employment Appeal Tribunal (Amendment) Rules 2001 (SI 2001/1128), which came into effect on 16 July 2001. These rules amend the existing Employment Appeal Tribunal Rules 1993 (SI 1993/2854) ("the EAT rules") and apply to all proceedings regardless of when they commenced (rule 28).

    National security

    The main area of change is again in the area of national security. The 1999 Act amended the ETA to allow for the making of regulations to amend the EAT rules of procedure.

    General national security provisions

    A new rule 30A provides for similar powers in respect of EAT proceedings to those conferred by rule 8 of the tribunal procedure rules (see above at pp.5-6). Similarly, rules 30A and 31A respectively provide for the use of special advocates and for the EAT reasons for its decision to be kept wholly or partially secret, in the same terms as in the tribunal rules.

    The EAT is under a general duty not to disclose information contrary to the interests of national security (rule 30).

    National security appeals

    The EAT rules now contain special provisions that apply to "national security appeals", defined in rule 2(2) as appeals from a decision or order of an employment tribunal in respect of which a minister of the Crown directed the tribunal in the interests of national security to keep secret all or part of the reasons for that decision, or the tribunal made an order in those terms.

    Thus, under rules 3 and 6, provisions are made for the grounds of appeal or resistance (as appropriate), or any statement of cross-appeal, to be sent to the registrar in a separate document and not to the other party. A special advocate may also submit such a document on behalf of whichever party was the applicant before the tribunal.

    European Works Councils

    Under the Transnational Information and Consultation of Employees Regulations 1999 ("the 1999 Regulations"), the Central Arbitration Committee ("CAC") was given power to adjudicate on matters relating to the arrangements for setting up European Works Councils ("EWCs"). Under reg. 38(8) of the 1999 Regulations, an appeal lies on a question of law arising in any proceedings of the CAC or from any declaration or order made by it. The EAT rules have been amended to take account of this additional jurisdiction.

    To institute an appeal under reg. 38(8), a copy of the CAC's declaration or order must be lodged, together with a notice of appeal, within a 42-day period from the date on which the written notification of the declaration or order was sent to the appellant (rules 3(1) and (3)). A sealed copy of the notice of appeal will be served on the chairman of the CAC (rule 4(1)(e)) and the respondents to the appeal, who (together with the appellant) will also be informed of the arrangements for the hearing of the appeal (rule 7).

    Under the 1999 Regulations, parties may complain directly to the EAT under regs. 20 and 21. Regulation 20 allows complaints where an agreement has been reached on the establishment of an EWC or an information and consultation procedure and, because of the failure of the central management of the company, the EWC or procedure has not been established fully or at all. Regulation 21 covers the situation where an EWC or information and consultation procedure has been established but the terms of the agreement have not been complied with. A new form has been added to the EAT rules to cover either circumstance (rule 16A). A respondent wishing to resist an application under either regulation must enter an appearance on the relevant form within 14 days of receiving a sealed copy of the application (rule 16C).

    Appeals from decisions of the Certification Officer

    Rule 5(a) adds references to ss.45D, 56A and 108C of the TULR(C)A. Those sections, inserted by Schedule 6 of the 1999 Act, provide that an appeal lies to the EAT on any question of law arising in any proceedings before, or arising from, decisions of the Certification Officer for Trade Unions and Employers' Associations (see Employment Relations Act 1999: the deluge begins).

    ENDNOTE

    Government to consult on further radical reform

    Four days after the amendments outlined above came into force, the Government announced further proposals for change to the system. These focus on:

  • improving dispute resolution procedures within employing organisations to avoid the need for litigation; and

  • introducing a "modest" charging re-gime for use of the employment tribunal system.

    Other proposals include:

  • increasing tribunal awards where a basic new dispute resolution procedure has not been used by an employer and reducing them where an employee has not exhausted the grievance procedure before bringing a claim;

  • extending the time limit for lodging tribunal claims where an internal disciplinary or grievance procedure is still in play;

  • amending the unfair dismissal legislation to allow tribunals to disregard minor procedural errors by employers, provided such errors have made no difference in practice and the dismissal is otherwise fair (which, depending on how it is phrased, could effectively overturn the House of Lords decision of Polkey v AE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd)5; and

  • introducing a fast-track system for jurisdictions such as unlawful pay deductions and breach of contract.

    Responses to the Government's consultation document, Routes to resolution: improving dispute resolution in Britain, are sought by 8 October 2001. It is available on the DTI web site at: www.dti.gov.uk/er/individual/etresponse1.htm

    References

    1[1991] IRLR 148

    2House of Lords, Hansard (cols. WA51-WA52), 5 July 2001

    3[2001] IRLR 85

    4[1979] ICR 827

    5[1987] IRLR 503

    "I am concerned that there are too many weak cases in the system causing significant delays for those with genuine claims ... People pursuing a claim with no reasonable prospect of success, or who indulge in time-wasting tactics, must be prepared to face heavy financial penalties"

    (Stephen Byers, Secretary of State for Trade and Industry, announcing the proposals to reform employment tribunals, 27 November 2000)

    Main points to note

    Employment tribunal rules

  • The rules apply to all proceedings, regardless of when they commenced (reg. 14).

  • Tribunals will now be under a duty to give effect to the "overriding objective" of dealing with cases justly when they exercise any power or interpret any provision under the rules. The parties will be under a duty to assist the tribunal in furthering the objective (reg. 10).

  • The conduct of a party or his or her representative in conducting proceedings may lead to a costs order against the relevant party (rule 14(1)).

  • Costs may be ordered where the bringing or conducting of proceedings was misconceived. The meaning of "misconceived" includes having no reasonable prospect of success.

  • Tribunals may now order unassessed costs of up to £10,000 (rule 14(3)(a)).

  • Directions of the tribunal may relate to evidence, including the provision and exchange of witness statements (rule 4(3)).

  • Failure to comply with any direction or witness order may lead to an order for striking out the originating application or notice of appearance, or to a costs order (rule 4(8)).

  • Originating applications and notices of appearance may be consolidated in certain circumstances.

  • The maximum deposit that can be ordered following a pre-hearing review has been increased to £500.

  • New rules have been introduced for use where national security is an issue. Under these rules, the tribunal may sit in private, exclude the applicant and/or his or her representative, conceal the identity of witnesses and keep secret the reasons for its decision. Members of a special national security panel will hear such cases.

    The EAT rules

  • Amendments have been made to the 1993 EAT rules of procedure, and apply regardless of when proceedings commenced.

  • New rules have been introduced to deal with national security cases in the same manner as in the tribunal rules.

  • Rules have been included to deal with the EAT's jurisdiction under the 1999 European Works Council Regulations.

  • Additional references to the widened jurisdiction of the Certification Officer under the 1999 Act have been included.

    The overriding objective

    Regulation 10(1) - The overriding objective of the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals to deal with cases justly.

    10(2) - Dealing with a case justly includes, so far as is practicable -

    (a)ensuring that the parties are on an equal footing;

    (b)saving expense;

    (c)dealing with the case in ways which are proportionate to the complexity of the issues; and

    (d)ensuring that it is dealt with fairly and expeditiously.

    10(3) - A tribunal shall seek to give effect to the overriding objective when it -

    (a)exercises any power given to it by the rules in Schedules 1, 2, 3, 4, 5 and 6; or

    (b)interprets any rule in Schedules 1, 2, 3, 4, 5 and 6.

    10(4) - The parties shall assist the tribunal to further the overriding objective.

    Costs

    Rule 14(1) - Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make -

    (a)an order containing an award against that party in respect of the costs incurred by another party;

    (b)...

    ...

    14(3) - An order containing an award against a party ("the first party") in respect of the costs incurred by another party ("the second party") shall be -

    (a)where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;

    (b)...

    (c)...

    Timing provisions

    Regulation 2(7) - Where any act must or may be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation. For example, a respondent receives a copy of an originating application on 1 October. He must present a written notice of appearance to the Secretary within 21 days of receiving the copy. The last day for presentation of the notice is 22 October.

    2(8) - Where any act must or may be done not less than a certain number of days before or after an event, the date of that event shall not be included in the calculation. For example, if a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application, he must submit them not less than seven days before the hearing. If the hearing is fixed for 8 October, the representations must be submitted no later than 1 October.

    2(9) - Where the tribunal or a chairman gives any decision, direction, declaration, order, recommendation, award or determination which imposes a time limit for doing any act, the last date for compliance shall, wherever practicable, be expressed as a calendar date.

    2(10) - In rule 5(2) of Schedule 1, rule 8 of Schedule 4, rule 6(1) of Schedule 5 and rule 4(1) of Schedule 6, the requirement to send the notice of hearing to the parties not less than 14 days before the date fixed for the hearing shall not be construed as a requirement for service of the notice to have been effected not less than 14 days before the hearing date, but as a requirement for the notice to have been placed in the post not less than 14 days before that date. For example, a hearing is fixed for 15 October. The last day on which the notice may be placed in the post is 1 October.

    Amendments to Schedule 1 rules of procedure in national security cases

    Notice of appearance

    Where a minister of the Crown makes a rule 8(1) direction to exclude the applicant or informs the Secretary under rule 8(3) that he wishes to address the tribunal with a view to the tribunal making such an order, in either case before the standard time limit for submitting the notice of appearance has expired, the notice of appearance shall not contain particulars of resistance (rule 3(1A)).

    Where the tribunal decides not to make an order excluding the applicant, the respondent has 21 days to provide particulars of resistance from the date of that decision, which shall be provided to the applicant by the Secretary in the normal way. Where a ministerial direction or tribunal order is made, the respondent has 42 days to provide particulars to the tribunal and, where appropriate, to the special advocate (rule 3(1B)).

    Where an order or ministerial direction is made to exclude the applicant's representative, the notice of appearance shall not be sent to that person (rule 3(1C)).

    Where a minister of the Crown wishes to address the tribunal to make an order excluding the applicant's representative, the notice of appearance shall not be sent to the representative until the matter has been determined (rule 3(1D)).

    Directions

    Where a minister has directed that the applicant or his or her representative be excluded, or the tribunal has so ordered, or is considering whether to so order, the minister may object to any direction made by the tribunal, whether general or made under the specific powers to order the attendance of witnesses or disclosure of documents (rule 4(9)).

    Pre-hearing review

    A special advocate may address a pre-hearing review on behalf of the applicant (rule 7(3)).

    Special advocates

    Unless authorised by the tribunal, the special advocate may not communicate, directly or indirectly, with any person (including an excluded person), other than the tribunal or the respondent, on any matter contained in the particulars of resistance submitted under rule 3(1B)(b). Similarly, he or she may not communicate with any person not present, on any matter discussed or referred to in any part of the proceedings where the tribunal is sitting in private (rule 7A(4)). The special advocate may apply to the tribunal for directions authorising him to take instructions from or otherwise communicate with the excluded person on any of the above matters (rule 7A(5)).

    The tribunal's reasons for its decision

    Where a direction or order has been made for the tribunal to sit in private, or for the applicant or his representative to be excluded, a copy of the document containing the reasons for the tribunal's decision shall be sent to the minister before it is entered in the register (rules 7B(1) and (2)). The minister may direct non-disclosure to an excluded person and whether or not another document should be provided, omitting specified parts (rule 7B(3)). If another document is so provided, the chairman shall sign it and it will be marked at the places where omissions have been made (rule 7B(4)). Consequential amendments to rule 12 have also been made.

    Consequential amendments have also been made to take account of the new national security rules. For example, rule 10(2), which requires all hearings to take place in public, has been amended to take account of the fact that a tribunal may sit in private in the specified circumstances outlined above at p.5.