The Hearing

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Chapter 28

The Hearing

COMPOSITION OF THE TRIBUNAL England and Wales
28.1 Under the terms of a Practice Statement issued by the Senior President of Tribunals on 30 October 2008,¹a decision that disposes of proceedings (i.e. a final decision) or a decision that determines a preliminary issue²made at or following a hearing must be made by a tribunal consisting of a tribunal judge, a service member³and a medical member.⁴There is provision for a tribunal to include two medical members if the Chamber President thinks it appropriate.

Scotland and Northern Ireland
28.2 In Scotland and Northern Ireland, paragraph 2A of the Schedule to the Pensions Appeal Tribunals Act 1943 requires that tribunal members include members who are legally qualified to hold judicial office, persons who are medically qualified, and persons with knowledge or experience of service in the armed forces. There is also a requirement to have regard to the desirability for tribunals to include persons with knowledge or experience of disability issues.

¹Practice Statement: Composition of Tribunals in relation to matters that fall to be decided by the

War Pensions and Armed Forces Compensation Chamber on or after 3 November 2008, Senior President of Tribunals (30 October 2008).

²With the exception of decisions under the England and Wales Procedure Rules, Pt 4.

³Defined as a ‘member who has substantial experience of service in Her Majesty’s naval, military or air forces or who is a transferred-in other member from the Pensions Appeal Tribunal who is not a registered medical practitioner’.

⁴A registered medical practitioner.

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NOTICE OF HEARING
28.3 Rule 25 of the England and Wales Procedure Rules allows an appeal to be decided without a hearing if the parties do not object and if the tribunal considers that it is able to decide the appeal without a hearing. ‘Paper hearings’ are uncommon in war pensions and armed forces compensation appeals, but may become more frequent. If a case is dealt with in this way, the tribunal’s reasons should show why the tribunal considers that it is able to decide the appeal without a hearing. In Scotland, rule 7 of the Scotland Procedure Rules now requires the tribunal to list a case for hearing 28 days after receiving the appellant’s answer to the Statement of Case, or on the expiry of the period within which an answer may be submitted, but with power to list the case earlier if there is a good reason for doing so.⁵In response to the COVID-19 emergency, a temporary rule 5A and other consequential amendments were added to the England and Wales Procedure Rules in 2020⁶permitting a decision finally disposing of proceedings to be made without a hearing if a matter is urgent and it is not reasonably practicable for there to be an actual or video or audio hearing and it is in the interests of justice to do so.

28.4 Hearings are held wherever possible in a venue which is convenient for the appellant. Rule 27 requires the parties to be given reasonable notice of the time and place of the hearing (including any adjourned or postponed hearing) and of any changes. The period of notice must be at least 14 days unless the parties consent to a shorter period of notice or there are urgent or exceptional circumstances. The period of notice of the hearing required by rule 8 of the Scotland and Northern Ireland Procedure Rules is not less than 10 clear days.

ADJOURNING OR POSTPONING A HEARING
28.5 In England and Wales, the power to adjourn or postpone a hearing is conferred by rule 5(3)(h) of the England and Wales Procedure Rules. It is usual to refer to a hearing being ‘adjourned’ if it has already begun, and being ‘postponed’ if it has not yet taken place. In Scotland and Northern Ireland, there is no express power to postpone a hearing that has not started, but by analogy with the position in courts, tribunals must have an implied power to postpone a hearing⁷

if it is necessary to do so in the interests of justice.

⁵Substituted by Pensions Appeal Tribunals (Scotland) Rules 2017 (SI 2017/367) (Scottish SI), r 2(6).

⁶By the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 (SI 2020/416).

⁷See Hinckley and South Leicestershire Building Society v Freeman [1941] Ch 32.

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28.6 The power under rule 5 to postpone or adjourn a hearing is discretionary, but the discretion must be exercised judicially⁸and in accordance with the overriding objective.⁹The overriding objective includes ‘avoiding delay so far as compatible with proper consideration of the issues’,¹⁰but also requires the tribunal to ensure ‘so far as practicable, that the parties are able to participate fully in the proceedings’.¹¹The purpose of an adjournment is always to ensure a fair hearing (see R v Medical Appeal Tribunal (Midland Region) ex parte Carrarini¹²).

Accordingly, a postponement request should generally be granted if an appellant is prevented from attending a hearing because of illness or an emergency. In CIS/2292/2000,¹³it was held that a tribunal had erred in law in not granting an adjournment request made on behalf of a claimant who was in prison and whose oral evidence was important. In LJT v Secretary of State for Work and Pensions,¹⁴

it was held that a tribunal ought not to bind itself by saying that an appeal must proceed when next listed, although it could make it clear that a case should not be adjourned again except for compelling reasons.

28.7 In MHA v Secretary of State for Work and Pensions,¹⁵the appellant sought an adjournment to obtain medical evidence. Judge Jacobs considered that the questions which were likely to arise in such a case were: What would be the benefit of an adjournment? Why was the party not ready to proceed? What impact will an adjournment have on the other party and the operation of the tribunal system? So far as the first question was concerned, it was relevant to take into account: (i) the evidence that was already before the tribunal; (ii) the evidence that was likely to be obtained if the proceedings were adjourned; (iii) how long it would take to obtain it; and (iv) whether the tribunal could use its expertise to compensate for the lack of additional evidence. Judge Jacobs considered that the impact of an adjournment on the tribunal system as a whole was unlikely to be of great significance in most cases.

28.8 In JG v Secretary of State for Defence (AFCS),¹⁶the claimant was a trainee who was injured in a road accident on a public road while on his way back to base from a social event. At the hearing of his appeal against the refusal of his claim under the Armed Forces Compensation Scheme, the claimant’s representative applied for a postponement of the hearing in order to obtain statements from other

⁸See Jacobs v Norsalta Limited [1977] ICR 189.

⁹See para 27.2.

¹⁰England and Wales Procedure Rules, r 2(2)(e).

¹¹England and Wales Procedure Rules, r 2(2)(c).

¹²[1966] 1 WLR 883.

¹³Unreported.

¹⁴[2019] UKUT 21 (AAC).

¹⁵[2009] UKUT 211 (AAC).

¹⁶[2014] UKUT 0194 (AAC).

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trainees who had attended the event, with a view to showing that they were under some compulsion to attend the event, and that attendance at the event was therefore ‘required by an order’ for the purposes of article 11(8)(a) of the AFCS 2011. The tribunal refused the postponement request on a number of grounds, including the absence of evidence of any element of compulsion to attend the social event and the possibility that the other trainees might not wish to give evidence. Judge Rowland allowed the claimant’s appeal against the tribunal’s decision, on the basis that it was irrational to refuse an adjournment for the purpose of obtaining statements from witnesses to support a case on the ground that, in the absence of such statements, there was no evidence supporting the case. Judge Rowland also considered that it was arguably wrong to refuse an adjournment on the ground that a witness might not wish to give evidence, without ascertaining whether that was in fact so, or considering whether it might be appropriate to issue a witness summons.

28.9 Rule 14 of the Scotland and Northern Ireland Procedure Rules confers on the tribunal a specific power to adjourn a hearing if ‘it appears to the tribunal that it is necessary to obtain further information on any point, or that the appellant or the Secretary of State should be allowed or required to procure or produce further evidence’. The appellant must be given an opportunity to comment in writing on any further information which is obtained, and either party can request a further hearing. If neither party requests a further oral hearing, the tribunal can come to a decision taking into account any written comments on the new information. If the appellant has been required to obtain or provide further evidence and does not do so due to wilful default, the case is placed on the deferred list.¹⁷

‘IN ABSENCE’ HEARINGS
28.10 Rule 29 of the England and Wales Procedure Rules allows a tribunal to proceed with a hearing in the appellant’s absence if:

(i) it is satisfied that the appellant has been notified of the hearing or that reasonable steps have been taken to notify the appellant of the hearing; and

(ii) it considers that it is in the interests of justice to proceed with the hearing.

28.11 Rule 20 of the Scotland and Northern Ireland Procedure Rules allows an appeal to be heard in the absence of the parties and provides that if a party fails

¹⁷See para 26.10.

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