In this section

Practice Statement, Guidance Note and Standard Directions issued by the Presiding Special Commissioner

September 2006

Practice Statement

Directions and Related Matters

What are Directions and why are they needed?

Once an appeal has been taken to the Special Commissioners, the Special Commissioners need to prepare a framework to make sure that it is brought on for hearing as speedily and as effectively as possible. They need to know at the outset what the appeal is about and how long it is likely to last. They then need to let the parties know what case management steps are expected of them. The framework is made up of Directions, being Basic Directions that deal with the structure of the appeal and Management Directions that deal with case-management matters.

Straightforward cases can be covered by simple Directions. The parties will usually agree these without any input from the Special Commissioners. This will usually be the case when the party referring the appeal to the Special Commissioners does so in accordance with the published guidance (see below). The more complex the case, the more specific the Directions have to be. The parties may not be able to agree these. In that case there may have to be a preliminary hearing (see below).

Guidance Note:

This is available from the Clerk to the Special Commissioners and should be followed by anyone referring an appeal for registration to the Special Commissioners. It is also available on our website. It asks for basic information about the appeal. If the guidance is fully complied with the party referring the appeal will not be required to carry out Basic Direction 1.

Basic Directions:

These are four Directions to be complied with by stages. They are concerned with getting the measure of the appeal, rather than the nuts and bolts of management. The Directions will be sent out by the Special Commissioners when the appeal is registered; if they are unsuitable for any reason, other Directions will be sent out.

If the party referring the appeal has fully complied with the guidance, this will be endorsed by the Special Commissioner on the Basic Directions and there will be no need for the party to comply with Direction 1.

Management Directions:

The standard Management Directions are set out in the Appendix to the Basic Directions. The parties are free to submit their own bespoke Directions for particular procedural matters. If these are accepted by the Special Commissioners, they will replace those standard Management Directions. Otherwise the standard Management Directions as contained in the Appendix will apply.

If one or both of the parties wish to substitute the standard Management Directions with their own bespoke Management Directions they should present an agreed draft to the Clerk to the Special Commissioners who will normally issue them as Directions under Regulation 4. The Special Commissioners will, however, retain the discretion to make modifications to these agreed bespoke Directions in order to ensure that the case is properly prepared for hearing. They expect to use this power sparingly. A party objecting to any modification to bespoke Directions presented by the other party can require a preliminary hearing to determine whether the modifications should be made.

Applications for sittings in private:

The Special Commissioners will rule on applications for hearings in private even where these are agreed (see below).

Lodging of documents:

Agreed bespoke Directions should in all cases provide that all documents (but not drafts in the process of agreement) be lodged with the Special Commissioners not later than 14 days before the hearing.

Preliminary hearings on pre-trial matters:

Where agreement cannot be reached on the form of Directions, whether Basic, Management or bespoke, one or both of the parties can request the Clerk to the Special Commissioners to call a preliminary hearing at which a Special Commissioner will hear representations from both parties and decide the form of the Directions to be issued. It is hoped that genuine attempts will be made to agree Directions before requesting a preliminary hearing in order to reduce the number of cases where agreement is reached immediately before the preliminary hearing.

Setting the hearing date:

Steps can be taken to arrange a hearing date either as part of a process of making Directions so that Directions can count back from the hearing date, or the Directions can request the fixing of a hearing not earlier than a stated date as soon as possible after the Directions are issued. Postponement of an agreed hearing date inconveniences the parties, the Tribunal and the parties to other cases wishing to have a hearing. Normally, parties will be expected to comply with Directions and Special Commissioners will expect to use their power under Regulation 24(1) to impose a penalty for non-compliance. Only as a last resort will a hearing date be postponed. Postponement will not be allowed unless the Commissioners consider that this is necessary for a fair hearing.

Witness statements:

A witness statement is a written statement signed by a person which contains the evidence that that person would give orally. Where a witness statement has been served, the party who wishes to rely on the evidence of the witness must call the witness to give oral evidence unless the tribunal directs otherwise. A witness statement should contain the full names, address and occupation of the witness; it should be in the witness's own words, expressed in the first person; and should be divided into numbered paragraphs and should exhibit all necessary documents. It must conclude with the words "I believe that the facts stated in this witness statement are true" and be signed and dated by the witness. The use of witness statements is optional in Scottish appeals.

If either party intends to call expert evidence, attention is drawn to Regulation 12 (which does not apply in Scotland). Unless an agreement is made between the parties in accordance with Regulation 12(1(a) an application should be made for a Direction relating to the calling of expert evidence.

Applications for sittings in private:

One of the matters covered by the Preliminary Directions, which apply in all cases, is an application for a hearing in private. Under Regulation 15 (2) of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994 as amended by the General Commissioners and Special Commissioners (Jurisdiction and Procedure) (Amendment) Regulations 2002 (SI 2002 No.2976), applying to proceedings commenced on or after 31 December 2002:

"(1) Subject to the following paragraphs of this regulation, hearings before a Tribunal shall be in public.–

"(2) A Tribunal may direct that all or part of a hearing shall be in private. –

  1. upon the application of all the parties by notice to the Clerk;
  2. upon the application of any party by notice to the clerk;
  3. of its own motion,

if in each case, a Tribunal is satisfied that a hearing in private is necessary –

  1. in the interests of morals, public order, national security, juveniles or for the protection of the private life of the party; or
  2. it considers that publicity would prejudice the interests of justice. "

The rules also provide that in cases (2)(b) and (2)(c) the Tribunal shall give the other party or parties to the proceedings the opportunity to make representations, and also that before giving a direction that the entire hearing be in private the Tribunal shall consider whether only part of the hearing should be heard in private.

The Special Commissioners will decide whether to make a direction under Regulation 15(2) even it is included in agreed Directions. Any such application should be made to the Clerk to the Special Commissioners stating the full reasons for the request.

Human rights points:

Attention is drawn to the following Practice Direction issued in October 2000:

‘If it is necessary for a party to give evidence at a hearing of an authority referred to in section 2 of the Human Rights Act 1998

  1. the authority to be cited should be an authoritative and complete report; and
  2. the party must give to the court and any other party a list of the authorities he intends to cite and copies of the reports not less than three days before the hearing. (Section 2(1) of the Human Rights Act 1998 requires the court to take into account the authorities listed there).

Copies of the complete original texts issued by the European Court and Commission either paper based or from the Court's judgment database (HUDOC), which is available on the Internet, may be used."

Scotland

The Basic Directions, and if not otherwise agreed the Management Directions shall apply to Scottish appeals subject to the variation in Direction 12.

Proceeds of Crime Act 2002 appeals

These Directions do not apply to appeals against assessments made by the Assets Recovery Agency.

STEPHEN OLIVER QC

September 2005