Set aside procedural irregularity

Hello,

I have a query I hope you can help with. I attended a hearing which we lost, we requested Statement of reasons and instead of this we received a decision from the Judge (same judge from the hearing) advising decision set aside due to procedural irregularity “...CD recording defective in part.”. At the bottom of the notice it states “The appeal is to be relisted before the same tribunal as soon as possible. The Judge has her notes but it is appropriate to rehear the evidence.” now my issue is that the same panel that dismissed the appeal will be sitting which I feel isn’t in the interest of my client, we were hoping to find an error in the statement of reasons a new hearing with the same panel gives them an opportunity to ensure their decision is water tight. (this maybe just me being cynical but after the hearing and behaviour of the judge I am very skeptical)

I suppose my question is can they do this? and is there anything I can do about it? my client has already refused to attend if the same panel are present. My understanding is that they can reserve the hearing to themselves but we can dispute it. Any help would be great.

Many thanks

Rule 37 appears to allow a Tribunal to set aside a decision on its own initiative without an application from any of the parties so I guess the answer to your question is yes they can.

Bench book suggests as I recall that best practise would be to list before a completely new tribunal in the interests of justice. That translates broadly as “it’s quicker”.

I’ve not had this exact situation but I have had several where the tribunal have directed stuff back to themselves. The reality is that it may not work out as directed. The process of getting the same 3 people back in a room could possibly be classified as a black art. Clerk will either give it a go and fail; get a direction to re-list in front of a new 3 or not pay any attention to it at all. Would be very impressed if they ever get the same 3 sorted quickly. Probably happens only in small venues in rural areas with regular sitters.

The notes thing is interesting. Judge may well have their notes (additional to their notes of proceedings) but if they are to be considered in any way then there’s an argument they need to be put into evidence. That alone would probably be enough to persuade that perhaps a completely differently constituted tribunal starting from scratch might be a better option for the TS :)

That said, I am uncomfortable with the idea of trying to select your tribunal in this way. We’ve all had appeals where we know a specific combination of members spells “F-A-I-L” before we enter the room and we’ve all found errors of law knowing that a fresh hearing will at least give us a better shot. However, it’s a bit disingenuous to be unhappy when they set aside and save perhaps months of messing about in favour of a relatively quick re-hearing. It’s surely in the best interests and stress levels of the appellant to get it quickly set aside; heard again and possibly awarded rather than pursue months of an error of law case!!!

From the benchbook.

52. RE-HEARING AFTER SET-ASIDE

1. A re-hearing of an appeal after a previous tribunal decision has been validly set
aside is of course a complete re-hearing of the whole matter and the previous
decision no longer exists; it is therefore not permissible to say for example, if the
second decision also goes against the appellant, ‘Decision of tribunal dated ...
confirmed’ as there is no such decision to confirm.

2. As a matter of natural justice (see paragraph 34 above) the new tribunal should be
totally differently constituted from the first tribunal.

Two things there:

1) It’s guidance and good practise (at least from their perspective). Certainly not binding else all decisions would be posted out and not notifed on the day and so on for but one example.

2) The key word there is “should”. Not “must” but “should”.