Tribunals

Question 1

What are tribunals?

Answer 1

CANE
Tribunals generally have two features:
* They are adjudicating institutions
* Described them as court substitutes, they deal with disputes in an alternative way

LORD CANWORTH
Tribunals are different to courts in their specialism and expertise and the flexibility of their procedures

Question 2

Why are tribunals important and potentially more advantegous than courts?

Answer 2

• Judicial review has drawbacks due to lack of legal specialism, formality of proceedings and the cost being around £10,000 or more
• Judicial review only hears around 2-3,000 cases compared to around half a million in the tribunals
• Tribunals are the usual forum for many categories of adjudication, e.g. immigration, tax

Question 3

How have tribunals grown and evolved over the years?

Answer 3

• Growth of industrialisation and urbanisation lead to the creation of specialist bodies to resolve disputes, e.g. railways
• Leggatt Report 2001, concerned about the independence of tribunals and suggested they should be more independent legal bodies like the courts
• Tribunals Service established in 2006
• Tribunal, Courts and Enforcement Act 2007

Question 4

What are the four common features of the modern system?

Answer 4

SYSTEMATISATION
* Two-tier system
* First tier tribunal hearing merit appeals
* Upper Tribunal, hearing appeals on points of law from the first tier under s11 TCEA
* S13 TCEA, onward right of appeal to Court of Appeal and Supreme Court

LEGAL AND NON-LEGAL SPECIALISM
* First tier has seven chambers, the upper four (e.g. tax, immigration, mental health)

INCREASED INDEPENDENCE
* Now managed by HM Courts and Tribunal Service, separate from the government
* Role of Senior President under s2 TCEA

PROCEDURAL FLEXIBILITY
* s22 TCEA provide that rules should ensure justice is done, make the system accessible, fair, efficient and simple

S22 is ultimately direction from Parliament that the different chambers think carefully about the needs of the service user

Question 5

What is the significance of R (Cart) v The Upper Tribunal?

Answer 5

• Court did not want to say there would be no judicial review, this would fossilize bad law, or that there was judicial review with no limitation as this would increase workload and undermine the upper tribunal
• Supreme Court aimed for a middle ground, permission to appeal would be given where the case raises an important general point of principle or there is some other compelling reason

Question 6

How has the law developed since the case of Cart?

Answer 6

s2 Judicial Review and Courts Act 2022,
* Adds s11A to Tribunal, Courts and Enforcement Act 2007
* Cart judicial review no longer available. Done on a recommendation from 2021 that this was a disproportionate use of court time with very little success rate
* However, only partial, grounds still remain under s2(4) in narrow circumstances