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The Scottish Tax Tribunals (Time Limits and Rules of Procedure) Regulations 2015

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Regulation 2(2)

SCHEDULE 2The Upper Tax Tribunal for Scotland Rules of Procedure 2015

This schedule has no associated Policy Notes
  1. PART 1 Introduction

    1. 1.Interpretation

    2. 2.Overriding objective and parties’ obligation to co-operate with the Upper Tribunal

    3. 3.Mediation

  2. PART 2 General Powers and Provisions

    1. 4.Delegation to staff

    2. 5.Case management powers

    3. 6.Procedure for applying for and giving directions

    4. 7.Failure to comply with rules etc.

    5. 8.Striking out a party’s case

    6. 9.Addition, substitution and removal of parties

    7. 10.Orders for expenses

    8. 11.Representatives

    9. 12.Calculating time

    10. 13.Sending and delivery of documents

    11. 14.Use of documents and information

    12. 15.Evidence and submissions

    13. 16.Citation of witnesses and orders to answer questions or produce documents

    14. 17.Withdrawal

    15. 18.Lead cases

    16. 19.Chairing member

    17. 20.Venue for hearings

    18. 21.Enforcement of decisions

  3. PART 3 Procedure for Cases in the Upper Tribunal

    1. 22.Application to the Upper Tribunal for permission to appeal a decision of the First-tier Tribunal

    2. 23.Decision in relation to permission to appeal a decision of the First-tier Tribunal

    3. 24.Notice of appeal to the Upper Tribunal

    4. 25.Response to the notice of appeal

    5. 26.Appellant’s reply

    6. 27.Cases transferred or referred to the Upper Tribunal, applications made directly to the Upper Tribunal and proceedings without notice to a respondent

  4. PART 4 Hearings

    1. 28.Decision with or without a hearing

    2. 29.Entitlement to attend a hearing

    3. 30.Notice of hearings

    4. 31.Public and private hearings and power to exclude

    5. 32.Hearings in a party’s absence

  5. PART 5 Decisions

    1. 33.Consent orders

    2. 34.Notice of decisions and reasons

  6. PART 6 Correcting, Setting Aside and Appealing Decisions of the Upper Tribunal

    1. 35.Interpretation

    2. 36.Clerical mistakes and accidental slips or omissions

    3. 37.Setting aside a decision which disposes of proceedings

    4. 38.Application for permission to appeal a decision of the Upper Tribunal

    5. 39.Upper Tribunal’s consideration of application for permission to appeal

    6. 40.Power to treat an application as a different type of application

PART 1Introduction

Interpretation

1.  In these Rules—

“appellant” means—

(a)

a person who makes an appeal or application, or applies for permission to appeal, to the Upper Tribunal;

(b)

in proceedings transferred or referred to the Upper Tribunal from the First-tier Tribunal, a person who started the proceedings in the First-tier Tribunal; or

(c)

in any case, a person substituted as an appellant under rule 9(1) (addition, substitution and removal of parties);

“dispose of proceedings” includes, unless indicated otherwise, disposing of a part of the proceedings;

“document” means anything in which information is recorded in any form, and an obligation under these Rules or any practice direction or direction to provide or allow access to a document or a copy of a document for any purpose means, unless the Upper Tribunal directs otherwise, an obligation to provide or allow access to such document or copy in a legible form or in a form which can be readily made into a legible form;

“hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;

“party” means a person who is (or was at the time that the Upper Tribunal disposed of the proceedings) an appellant or respondent in proceedings before the Upper Tribunal;

“practice direction” means a direction given under section 57 of RSTPA 2014;

“President” means the President of the Scottish Tax Tribunals;

“respondent” means—

(a)

in an appeal, or application for permission to appeal, against a decision of the First-tier Tribunal, any person other than the appellant who—

(i)

was a party before the First-tier Tribunal;

(ii)

otherwise has a right of appeal against the decision of the First-tier Tribunal and has given notice to the Upper Tribunal that they wish to be a party to the appeal;

(b)

in proceedings transferred or referred to the Upper Tribunal from the First-tier Tribunal, a person who was a respondent in the proceedings in the First-tier Tribunal;

(c)

in any case, a person substituted or added as a respondent under rule 9 (addition, substitution and removal of parties);

“RSTPA 2014” means the Revenue Scotland and Tax Powers Act 2014.

Overriding objective and parties’ obligation to co-operate with the Upper Tribunal

2.—(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

(2) Dealing with a case in accordance with the overriding objective includes—

(a)dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated expenses and the resources of the parties;

(b)avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)using any special expertise of the Upper Tribunal effectively; and

(e)avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Upper Tribunal must seek to give effect to the overriding objective when it—

(a)exercises any power under these Rules; or

(b)interprets any rule or practice direction.

(4) Parties must, insofar as reasonably possible—

(a)help the Upper Tribunal to further the overriding objective; and

(b)co-operate with the Upper Tribunal generally.

Mediation

3.  The Upper Tribunal should seek, where appropriate—

(a)to bring to the attention of the parties the availability of mediation for the resolution of the dispute; and

(b)if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of mediation.

PART 2General Powers and Provisions

Delegation to staff

4.—(1) Staff of the Scottish Courts and Tribunals Service may, with the approval of the President, carry out functions of a judicial nature permitted or required to be done by the Upper Tribunal.

(2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.

(3) Within 14 days after the date on which the Upper Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may make a written application to the Upper Tribunal for that decision to be considered afresh by a member of the Upper Tribunal.

Case management powers

5.—(1) Subject to the provisions of RSTPA 2014 and these Rules, the Upper Tribunal may regulate its own procedure.

(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may by direction—

(a)extend or shorten the time for complying with any rule, practice direction or direction, or regulation 3(2) or 4(2) of the Scottish Tax Tribunals (Time Limits and Rules of Procedure) Regulations 2015 (time limit for permission to appeal to the Upper Tax Tribunal for Scotland or to the Court of Session);

(b)conjoin or take concurrently two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise);

(c)permit or require a party to amend a document;

(d)permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;

(e)deal with an issue in the proceedings as a preliminary issue;

(f)hold a hearing to consider any matter, including a case management issue;

(g)decide the form of any hearing;

(h)adjourn or postpone a hearing;

(i)require a party to produce a file of documents for a hearing;

(j)sist proceedings;

(k)transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—

(i)because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or

(ii)the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;

(l)suspend the effect of its own decision pending an appeal of that decision;

(m)in an appeal, or an application for permission to appeal, against the decision of the First-tier Tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal;

(n)require the First-tier Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before the First-tier Tribunal.

Procedure for applying for and giving directions

6.—(1) The Upper Tribunal may give a direction on the application of one or more of the parties or on its own initiative.

(2) An application for a direction may be made—

(a)by sending or delivering a written application to the Upper Tribunal; or

(b)orally during the course of a hearing.

(3) An application for a direction must include the reason for making that application.

(4) The Upper Tribunal must send notice of any direction to every party and to any other person affected by the direction.

(5) If a party or any other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Upper Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.

Failure to comply with rules etc.

7.—(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include—

(a)waiving the requirement;

(b)requiring the failure to be remedied;

(c)exercising its power under rule 8 (striking out a party’s case); or

(d)restricting a party’s participation in the proceedings.

Striking out a party’s case

8.—(1) The proceedings, or the appropriate part of them, will be struck out if the appellant has failed to comply with a direction that stated that failure by the appellant to comply with the direction would lead to the striking out of the proceedings or part of them.

(2) The Upper Tribunal must strike out the whole or a part of the proceedings if the Upper Tribunal—

(a)does not have jurisdiction in relation to the proceedings or that part of them; and

(b)does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

(3) The Upper Tribunal may strike out the whole or a part of the proceedings if—

(a)the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

(b)the appellant has failed to co-operate with the Upper Tribunal to such an extent that the Upper Tribunal cannot deal with the proceedings fairly and justly; or

(c)in proceedings which have been transferred from the First-tier Tribunal, the Upper Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.

(4) The Upper Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.

(5) The effect of proceedings being struck out is that all issues are determined against the appellant. The effect of proceedings being partially struck out is that the relevant issues are determined against the appellant.

(6) If the proceedings, or a part of them, have been struck out under paragraph (1) or (3)(a), the appellant may make a written application for the proceedings, or a part of them, to be reinstated.

(7) An application under paragraph (6) must be received by the Upper Tribunal within 30 days after the date on which the Upper Tribunal sent notification of the striking out to the appellant.

(8) This rule applies to a respondent as it applies to an appellant except that—

(a)a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and

(b)a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent taking further part in the proceedings.

(9) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Upper Tribunal need not consider any response or other submission made by that respondent, and may summarily determine any or all issues against that respondent.

Addition, substitution and removal of parties

9.—(1) The Upper Tribunal may give a direction adding, substituting or removing a party as an appellant or a respondent including where—

(a)the wrong person has been named as a party; or

(b)the addition, substitution or removal has become necessary because of a change in circumstances since the start of proceedings.

(2) If the Upper Tribunal gives a direction under paragraph (1) it may give such consequential directions as it considers appropriate.

(3) A person who is not a party may make a written application to the Upper Tribunal to be added or substituted as a party under this rule.

(4) If the Upper Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the Upper Tribunal.

Orders for expenses

10.—(1) The Upper Tribunal may not make an order in respect of expenses in proceedings transferred or referred by, or on appeal from, the First-tier Tribunal except to the extent and in the circumstances that the First-tier Tribunal had the power to make an order in respect of expenses.

(2) In other proceedings, the Upper Tribunal may not make an order in respect of expenses except—

(a)in relation to wasted expenses and expenses incurred in applying for such expenses; or

(b)if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.

(3) The Upper Tribunal may make an order for expenses on an application or on its own initiative.

(4) A person making an application for an order for expenses must—

(a)send or deliver a written application to the Upper Tribunal and to the person against whom it is proposed that the order be made; and

(b)send or deliver with the application a schedule of the expenses claimed in sufficient detail to allow summary assessment of such expenses by the Upper Tribunal.

(5) An application for an order for expenses may be made at any time during the proceedings but may not be made later than 30 days after the date on which the Upper Tribunal sends—

(a)a decision notice recording the decision which finally disposes of all issues in the proceedings; or

(b)notice under rule 17(2) that a withdrawal which ends the proceedings has taken effect.

(6) The Upper Tribunal may not make an order for expenses against a person (the “paying person”) without first—

(a)giving that person an opportunity to make representations; and

(b)if the paying person is an individual, considering that person’s financial means.

(7) The amount of expenses to be paid under an order under this rule may be ascertained by—

(a)summary assessment by the Upper Tribunal;

(b)agreement of a specified sum by the paying person and the person entitled to receive the expenses (the “receiving person”); or

(c)assessment of the whole or a specified part of the expenses, including the expenses of the assessment, incurred by the receiving person, if not agreed.

(8) Following an order for assessment under paragraph (7)(c)—

(a)the paying person or the receiving person may apply to the Auditor of the Court of Session (as specified in the order); or

(b)the Upper Tribunal may make a remit to the Auditor of the Court of Session,

for the taxation of the expenses according to the fees payable in that Court.

(9) Upon making an order for the assessment of expenses, the Upper Tribunal may order an amount to be paid on account before the expenses are assessed.

(10) In this rule, “wasted expenses” means any expenses incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of such a representative; or

(b)which, in the light of any such act or omission occurring after they were incurred, the First-Tier Tribunal considers it is unreasonable to expect that party to pay.

Representatives

11.—(1) A party may appoint a representative to represent that party in the proceedings.

(2) If a party appoints a representative, that party must send or deliver to the Upper Tribunal and to each other party to the proceedings notice of the representative’s name and address.

(3) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.

(4) A person who receives due notice of the appointment of a representative—

(a)must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and

(b)may assume that the representative is and remains authorised as such until they receive notification that this is not so from the representative or the represented party.

(5) At a hearing a party may be accompanied by another person whose name and address has not been notified under paragraph (2) but who, subject to the permission of the Upper Tribunal, may act as a representative or otherwise assist in presenting the party’s case at the hearing.

(6) Paragraphs (2) to (4) do not apply to a person who accompanies a party under paragraph (5).

Calculating time

12.—(1) An act required by these Rules, a practice direction or a direction to be done on or by a particular day must be done by 5pm on that day.

(2) If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.

(3) In this rule “working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday in Scotland under section 1 of the Banking and Financial Dealings Act 1971.

Sending and delivery of documents

13.—(1) Any document to be provided to the Upper Tribunal under these Rules, a practice direction or a direction must be—

(a)sent by pre-paid post or by document exchange, or delivered by hand, to the address specified for the proceedings; or

(b)sent or delivered by such other method as the Upper Tribunal may permit or direct.

(2) Subject to paragraph (3), if a party provides a fax number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.

(3) If a party informs the Upper Tribunal and all other parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party, that form of communication must not be so used.

(4) If the Upper Tribunal or a party sends a document to a party or the Upper Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.

(5) The Upper Tribunal and each party may assume that the address provided by a party or its representative is and remains the address to which documents should be sent or delivered until receiving notification to the contrary.

Use of documents and information

14.—(1) The Upper Tribunal may make an order prohibiting the disclosure or publication of—

(a)specified documents or information relating to the proceedings; or

(b)any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.

(2) The Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a)the Upper Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b)the Upper Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party (“the first party”) considers that the Upper Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (“the second party”), the first party must—

(a)exclude the relevant document or information from any documents that will be provided to the second party; and

(b)provide to the Upper Tribunal the excluded document or information, and the reason for its exclusion, so that the Upper Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) If the Upper Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Upper Tribunal may give a direction that the documents or information be disclosed to that representative if the Upper Tribunal is satisfied that—

(a)disclosure to the representative would be in the interests of the party; and

(b)the representative will act in accordance with paragraph (5).

(5) Documents or information disclosed to a representative in accordance with a direction under paragraph (4) must not be disclosed either directly or indirectly to any other person without the Upper Tribunal’s consent.

(6) The Upper Tribunal may, on its own initiative or on the application of a party, give a direction that certain documents or information must or may be disclosed to the Upper Tribunal on the basis that the Upper Tribunal will not disclose such documents or information to other persons, or specified other persons.

(7) A party making an application for a direction under paragraph (6) may withhold the relevant documents or information from other parties until the Upper Tribunal has granted or refused the application.

(8) The Upper Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1) or a direction given under paragraph (2) or (6).

Evidence and submissions

15.—(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Upper Tribunal may give directions as to—

(a)issues on which it requires evidence or submissions;

(b)the nature of the evidence or submissions it requires;

(c)whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;

(d)any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;

(e)the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—

(i)orally at a hearing; or

(ii)by written submissions or witness statement; and

(f)the time at which any evidence or submissions are to be provided.

(2) The Upper Tribunal may—

(a)admit evidence whether or not—

(i)the evidence would be admissible in a court in Scotland; or

(ii)the evidence was available to a previous decision maker; or

(b)exclude evidence that would otherwise be admissible where—

(i)the evidence was not, without reasonable excuse, provided within the time allowed by a direction or a practice direction;

(ii)the evidence was, without reasonable excuse, otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii)it would otherwise be unfair to admit the evidence.

(3) The Upper Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.

Citation of witnesses and orders to answer questions or produce documents

16.—(1) On the application of a party or on its own initiative, the Upper Tribunal may—

(a)by citation require any person to attend as a witness at a hearing at the time and place specified in the citation; or

(b)order any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.

(2) A citation under paragraph (1)(a) must—

(a)give the person required to attend 14 days’ notice of the hearing or such other period as the Upper Tribunal may direct; and

(b)where the person is not a party, make provision for the person’s necessary expenses of attendance to be paid, and state who is to pay them.

(3) A person who receives a citation or order may apply to the Upper Tribunal for it to be varied or set aside if the person did not have an opportunity to object to it before it was made or issued.

(4) A person making an application under paragraph (3) must do so as soon as reasonably practicable after receiving notice of the citation or order.

(5) A citation or order under this rule must—

(a)state that the person on whom the requirement is imposed may apply to the Upper Tribunal to vary or set aside the citation or order, if the person did not have an opportunity to object to it before it was made or issued; and

(b)state the consequences of failure to comply with the citation or order.

Withdrawal

17.—(1) Subject to any provision in RSTPA 2014 relating to withdrawal or settlement of particular proceedings, a party may give notice to the Upper Tribunal of the withdrawal of the case made by it in the Upper Tribunal proceedings, or any part of that case—

(a)by sending or delivering to the Upper Tribunal a notice of withdrawal; or

(b)orally at a hearing.

(2) The Upper Tribunal must notify each party of its receipt of a withdrawal under this rule.

(3) A party which has withdrawn its case may make a written application to the Upper Tribunal for the case to be reinstated.

(4) An application under paragraph (3) must be received by the Upper Tribunal within 30 days after—

(a)the date on which the Upper Tribunal received the notice under paragraph (1)(a); or

(b)the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).

Lead cases

18.—(1) This rule applies if—

(a)two or more cases have been started before the Upper Tribunal;

(b)in each such case the Upper Tribunal has not made a decision disposing of the proceedings; and

(c)the cases give rise to common or related issues of fact or law.

(2) The Upper Tribunal may give a direction—

(a)specifying one or more cases falling under paragraph (1) as a lead case or lead cases; and

(b)sisting the other cases falling under paragraph (1) (“the related cases”).

(3) When the Upper Tribunal makes a decision in respect of the common or related issues—

(a)the Upper Tribunal must send a copy of that decision to each party in each of the related cases; and

(b)subject to paragraph (4), that decision shall be binding on each of those parties.

(4) Within 30 days after the date that the Upper Tribunal sent a copy of the decision to a party under paragraph (3)(a), that party may make a written application for a direction that the decision does not apply to, and is not binding on the parties to, that case.

(5) The Upper Tribunal must give directions in respect of cases which are sisted under paragraph (2)(b), providing for the disposal of or further steps in those cases.

(6) If the lead case or cases are withdrawn or disposed of before the Upper Tribunal makes a decision in respect of the common or related issues, the Upper Tribunal must give directions as to—

(a)whether another case or other cases are to be heard as a lead case or lead cases; and

(b)whether any direction affecting the related cases should be set aside or amended.

Chairing member

19.  Where a matter is to be decided by two or more members of the Upper Tribunal, the President must determine the chairing member.

Venue for hearings

20.  The Upper Tribunal is to be convened at such time and place in Scotland as the President may determine.

Enforcement of decisions

21.  An order for the payment of a sum payable in pursuance of a decision of the Upper Tribunal, or a copy of such an order certified by the Upper Tribunal, may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the Sheriff Court of any sheriffdom in Scotland.

PART 3Procedure for Cases in the Upper Tribunal

Application to the Upper Tribunal for permission to appeal a decision of the First-tier Tribunal

22.—(1) A person may make a written application to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of the First-tier Tribunal only if—

(a)the person has made an application for permission to appeal to the First-tier Tribunal; and

(b)that application has been refused, has not been admitted or has been granted only on limited grounds.

(2) An application for permission to appeal must state—

(a)the name and address of the appellant;

(b)the name and address of the representative (if any) of the appellant;

(c)an address where documents for the appellant may be sent or delivered;

(d)details (including the full reference) of the decision challenged;

(e)the grounds on which the appellant relies; and

(f)whether the appellant wants the application to be dealt with at a hearing.

(3) The appellant must provide with the application a copy of—

(a)any written record of the decision being challenged;

(b)any separate written statement of reasons for that decision; and

(c)if the application is for permission to appeal against a decision of the First-tier Tribunal, the notice of refusal of permission to appeal from the First-tier Tribunal.

(4) If the appellant provides the application to the Upper Tribunal later than the time required by regulation 3(2) or 4(2) of the Scottish Tax Tribunals (Time Limits and Rules of Procedure) Regulations 2015 or by an extension of time allowed under rule 5(3)(a) (power to extend time)—

(a)the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b)unless the Upper Tribunal extends time for the application under rule 5(3)(a), the Upper Tribunal must not admit the application.

(5) In this rule, a reference to notice of a refusal of permission to appeal is to be taken to include a reference to notice of a grant of permission to appeal on limited grounds.

Decision in relation to permission to appeal a decision of the First-tier Tribunal

23.—(1) If the Upper Tribunal refuses permission to appeal, it must send notice of the refusal and of the reasons for the refusal to the appellant.

(2) If the Upper Tribunal gives permission to appeal—

(a)the Upper Tribunal must send notice of the permission, and of the reasons for any limitations or conditions on such permission, to each party;

(b)subject to any direction by the Upper Tribunal, the application for permission to appeal stands as the notice of appeal and the Upper Tribunal must send to each respondent a copy of the application for permission to appeal and any documents provided with it by the appellant; and

(c)the Upper Tribunal may, with the consent of the appellant and each respondent, determine the appeal without obtaining any further response.

(3) Where the Upper Tribunal, without a hearing, determines an application for permission to appeal, the appellant may make a written application for the decision to be reconsidered at a hearing if the Upper Tribunal—

(a)refuses permission to appeal; or

(b)gives permission to appeal on limited grounds or subject to conditions.

(4) An application under paragraph (3) must be received by the Upper Tribunal within 14 days after the date on which the Upper Tribunal sent notice of its decision regarding the application to the appellant.

Notice of appeal to the Upper Tribunal

24.—(1) This rule applies—

(a)if the First-tier Tribunal has given permission for a party to appeal to the Upper Tribunal; or

(b)subject to any other direction by the Upper Tribunal, if the Upper Tribunal has given permission to appeal and has given a direction that the application for permission to appeal does not stand as the notice of appeal.

(2) The appellant must provide a notice of appeal to the Upper Tribunal so that it is received within 30 days after the date that the First-tier Tribunal or Upper Tribunal (as appropriate) sent notice of such permission to the appellant.

(3) The notice of appeal must include the information listed in rule 22(2)(a) to (f) (content of the application for permission to appeal) and, where the Upper Tribunal has given permission to appeal, the Upper Tribunal’s case reference.

(4) If the First-tier Tribunal has granted permission to appeal, the appellant must provide with the notice of appeal a copy of—

(a)any written record of the decision being challenged;

(b)any separate written statement of reasons for that decision; and

(c)the notice of permission to appeal.

(5) If the appellant provides the notice of appeal to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—

(a)the notice of appeal must include a request for an extension of time and the reason why the notice was not provided in time; and

(b)unless the Upper Tribunal extends time for the notice of appeal under rule 5(3)(a), the Upper Tribunal must not admit the notice of appeal.

(6) When the Upper Tribunal receives the notice of appeal, it must send a copy of the notice and any accompanying documents to each respondent.

Response to the notice of appeal

25.—(1) Subject to any direction given by the Upper Tribunal, a respondent may provide a written response to a notice of appeal.

(2) Any response provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received—

(a)if an application for permission to appeal stands as the notice of appeal, no later than 30 days after the date on which the respondent was sent notice that permission to appeal had been granted;

(b)in any other case, no later than 30 days after the date on which the Upper Tribunal sent a copy of the notice of appeal to the respondent.

(3) The response must state—

(a)the name and address of the respondent;

(b)the name and address of the representative (if any) of the respondent;

(c)an address where documents for the respondent may be sent or delivered;

(d)whether the respondent opposes the appeal;

(e)the grounds on which the respondent relies, including (in the case of an appeal against the decision of the First-tier Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal; and

(f)whether the respondent wants the case to be dealt with at a hearing.

(4) If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time.

(5) When the Upper Tribunal receives the response, it must send a copy of the response and any accompanying documents to the appellant and each other party.

Appellant’s reply

26.—(1) Subject to any direction given by the Upper Tribunal, the appellant may provide a written reply to any response provided under rule 25 (response to the notice of appeal).

(2) Any reply provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within 30 days after the date on which the Upper Tribunal sent a copy of the response to the appellant.

(3) When the Upper Tribunal receives the reply, it must send a copy of the reply and any accompanying documents to each respondent.

Cases transferred or referred to the Upper Tribunal, applications made directly to the Upper Tribunal and proceedings without notice to a respondent

27.—(1) Paragraphs (2) and (3) apply to—

(a)a case transferred or referred to the Upper Tribunal from the First-tier Tribunal; or

(b)a case which is started by an application made directly to the Upper Tribunal.

(2) In a case to which this paragraph applies—

(a)the Upper Tribunal must give directions as to the procedure to be followed in the consideration and disposal of the proceedings;

(b)the preceding rules in this Part will only apply to the proceedings to the extent provided for by such directions.

(3) If a case or matter to which this paragraph applies is to be determined without notice to or the involvement of a respondent—

(a)any provision in these Rules requiring a document to be provided by or to a respondent; and

(b)any other provision in these Rules permitting a respondent to participate in the proceedings,

does not apply to that case or matter.

PART 4Hearings

Decision with or without a hearing

28.—(1) Subject to paragraph (2), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.

Entitlement to attend a hearing

29.  Subject to rule 31(4) (exclusion of a person from a hearing), each party is entitled to attend a hearing together with any representative permitted by rule 11.

Notice of hearings

30.—(1) The Upper Tribunal must give each party entitled to attend a hearing reasonable notice of the time and place of the hearing (including any adjourned or postponed hearing) and any change to the time and place of the hearing.

(2) The period of notice under paragraph (1) must be at least 14 days except that the Upper Tribunal may give shorter notice—

(a)with the parties’ consent; or

(b)in urgent or exceptional circumstances.

Public and private hearings and power to exclude

31.—(1) Subject to the following paragraphs, all hearings must be held in public.

(2) The Upper Tribunal may give a direction that a hearing, or part of it, is to be held in private if the Upper Tribunal considers that restricting access to the hearing is justified—

(a)in the interests of public order or national security;

(b)in order to protect a person’s right to respect for their private and family life;

(c)in order to maintain the confidentiality of sensitive information;

(d)in order to avoid serious harm to the public interest; or

(e)because not to do so would prejudice the interests of justice.

(3) Where a hearing, or part of it, is to be held in private, the Upper Tribunal may determine who is entitled to attend the hearing or part of it.

(4) The Upper Tribunal may give a direction excluding from any hearing, or part of it—

(a)any person whose conduct the Upper Tribunal considers is disrupting or is likely to disrupt the hearing;

(b)any person whose presence the Upper Tribunal considers is likely to prevent another person from giving evidence or making submissions freely;

(c)any person where the purpose of the hearing would be defeated by the attendance of that person; or

(d)a person under the age of sixteen years.

(5) The Upper Tribunal may give a direction excluding a witness from a hearing until that witness gives evidence.

(6) When publishing a decision notice referred to in rule 34(2) resulting from a hearing which was held wholly or partly in private, the Upper Tribunal must, so far as practicable, ensure that the report does not disclose information which was referred to only in a part of the hearing that was held in private (including such information which enables the identification of any person whose affairs were dealt with in the part of the hearing that was held in private) if to do so would undermine the purpose of holding the hearing in private.

Hearings in a party’s absence

32.  If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal—

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

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

PART 5Decisions

Consent orders

33.—(1) The Upper Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.

(2) Notwithstanding any other provision of these Rules, the Upper Tribunal need not hold a hearing before making an order under paragraph (1) or provide reasons for the order.

Notice of decisions and reasons

34.—(1) Subject to the remainder of this rule, the Upper Tribunal may give a decision orally at a hearing.

(2) The Upper Tribunal must provide to each party, as soon as reasonably practicable after making a decision (other than a decision under Part 6) which finally disposes of all issues in the proceedings or of a preliminary issue dealt with following a direction under rule 5(3)(e), a decision notice which—

(a)states the Upper Tribunal’s decision; and

(b)notifies the party of any right of appeal against the decision and the time within which, and the manner in which, the right of appeal may be exercised.

(3) Unless each party agrees that it is unnecessary, and in any event subject to rule 31(6), the Upper Tribunal must provide written reasons for its decision with a decision notice provided under paragraph (2) unless—

(a)the decision was made with the consent of the parties; or

(b)the parties have consented to the Upper Tribunal not giving written reasons.

(4) The Upper Tribunal may provide written reasons for any decision to which paragraph (2) does not apply.

(5) The Upper Tribunal must, subject to rule 31(6), publish reports of its decisions, including on a website.

PART 6Correcting, Setting Aside and Appealing Decisions of the Upper Tribunal

Interpretation

35.  In this Part, “appeal” means the exercise of a right of appeal under section 36 of RSTPA 2014.

Clerical mistakes and accidental slips or omissions

36.  The Upper Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, a direction or any document produced by it (or record of such a thing) by—

(a)sending notification of the amended decision or direction, or a copy of the amended document or record, to all parties; and

(b)making any necessary amendment to any information published in relation to the decision, direction, document or record.

Setting aside a decision which disposes of proceedings

37.—(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a)the Upper Tribunal considers that it is in the interests of justice to do so; and

(b)one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;

(b)a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;

(c)a party, or a party’s representative, was not present at a hearing related to the proceedings; or

(d)there has been some other procedural irregularity in the proceedings.

(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 30 days after the date on which the Upper Tribunal sent notice of the decision to the party.

(4) If the Upper Tribunal sets aside a decision or part of a decision under this rule, the Upper Tribunal must notify the parties as soon as practicable.

Application for permission to appeal a decision of the Upper Tribunal

38.—(1) A person seeking permission to appeal must make a written application to the Upper Tribunal for permission to appeal.

(2) An application under paragraph (1) must—

(a)identify the decision of the Upper Tribunal to which it relates;

(b)identify the alleged error or errors of law in the decision; and

(c)state the result the party making the application is seeking.

Upper Tribunal’s consideration of application for permission to appeal

39.—(1) The Upper Tribunal must send a record of its decision to the parties as soon as practicable.

(2) If the Upper Tribunal refuses permission to appeal it must send with the record of its decision—

(a)a statement of its reasons for such refusal; and

(b)notification of the right to make an application to the Court of Session for permission to appeal and the time within which, and the method by which, such an application must be made.

(3) The Upper Tribunal may give permission to appeal against part only of the decision or on limited grounds, but must comply with paragraph (2) to the extent that permission is refused.

Power to treat an application as a different type of application

40.  The Upper Tribunal may treat an application for a decision to be corrected or set aside, or for permission to appeal against a decision, as an application for any other one of those things.

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