CHAPTER 3
chapter 3
Procedure
3.1Principles of procedural justice 3.4The essential features of judicial decision-making 3.8Systemic considerations The Franks Committee • The Woolf Report • The Bowman Report • The Leggatt Report • The Council on Tribunals
3.22The overriding objective and the duty to co-operate 3.26Procedural and substantive justice 3.35Sources of procedural provisions 3.35Practice and procedure 3.48Rules of procedure under TCEA 3.54The nature of the rules 3.55Other delegated legislation 3.56Retrospective changes to the rules of procedure 3.58Powers and duties outside the express rules Supplementing the legislation • Background rules • Inherent powers • Implied powers • The relationship between inherent and implied powers
3.103Overriding objective and co-operation 3.103The overriding objective 3.104The function of the overriding objective 3.106A general principle of fairness 3.108Interpreting and applying rules of procedure 3.114Interpreting practice directions 3.119TCEA, practice statements and substantive law 3.120The duty to co-operate 3.136Previous authorities 3.153The sources of the right to fairness Natural justice • Analogous principle • No fault • Article 6(1)
3.172The relationship between fairness and procedural legislation Natural justice • Convention right • The overriding objective
3.186The nature of the right to fairness 3.190Process and substance The scope of the Convention right
Determination • Civil right or obligation • A variable standard
Right of access • Equality of arms • Material before the tribunal • Understanding proceedings • Understanding the consequences of decisions • Interpreters • Enforcement
3.223The tribunal’s relationship with the State 3.225The tribunal’s attitude to the proceedings Hearing both sides • The tribunal’s thinking • Concentration on proceedings • Participation in the proceedings • Detachment • Discourtesy • Bias
3.246Bias presumed from an interest in the outcome of the case 3.247Possibility of subconscious bias 3.255Judge’s previous involvement 3.263Recusal – principle and good practice 3.266When should an allegation of bias be raised? 3.272Fairness when evidence or information is withheld Fairness on appeal or judicial review
When an appeal or judicial review is required • When an appeal or judicial review is available
3.283Compensation for delay 3.292Forms of proceedings 3.298Referral or reference 3.299Relationship between appeal and judicial review 3.300Relationship between appeal and referral 3.301Proceedings on procedural issues 3.302Alternative dispute resolution