Joint Committee on Statutory Instruments Third Report


Memorandum by the Ministry of Defence


  1. This memorandum is in answer to the letter of 6 June 1997 from the Commons Clerk of the Committee which asked for a memorandum on the following point:

    "Rule 28(1)(d) provides that the Tribunal may award costs in the circumstances described in rule 6(b), that is, if the appellant (with the leave of the Tribunal) withdraws his appeal after notice of the hearing has been delivered to him. Explain why there is no corresponding power to award costs where the authority withdraws its opposition to the appeal.

  2. In a case where the Authority has stated in its reply that it opposes the appeal but later wishes to withdraw its opposition it would do so by stating in writing that it no longer opposes the appeal. In this event the Tribunal could award costs to the appellant under rule 28(1)(a) if it was of the opinion that the Authority had acted frivolously or vexatiously, or that its conduct in resisting the appeal had been wholly unreasonable.

  3. The Committee have, however, highlighted an anomaly in the treatment under rule 28(1) of an appellant who withdraws the appeal after receiving notice of the hearing date compared with that of the Authority where it states in writing that it withdraws its opposition after receiving notice of the hearing date. The Ministry will consider amending the Rules when it next reviews how the Rules are working in practice.

12th June 1997

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