Joint Committee on Statutory Instruments Twenty-Fifth Report


2. S.I. 2003/1372: defective drafting

Competition Appeal Tribunal Rules 2003 (S.I 2003/1372)

2.1 The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted.

2.2 Rule 16 allows persons with a sufficient interest to be granted permission to intervene in proceedings before the Tribunal. On granting permission, the Tribunal may direct the intervener to submit a statement of intervention and the principal parties to respond to that statement. Rule 16(9) requires the statement of intervention and any response thereto to contain a succinct presentation of the facts and arguments supporting the intervention, the relief sought by the intervener, a schedule listing all the documents annexed to the intervention, and a copy of every document on which the intervener relies. The Committee asked the Department for Trade and Industry why a response to a statement of intervention is required to contain particulars which must already have been included in that statement. In a memorandum printed at Appendix 2, the Department states that its intention is to require any response to be in a similar form to the statement of intervention, acknowledges that the drafting does not clearly achieve this result, and proposes to review with the Tribunal the need for an appropriate amendment. The Committee accordingly reports rule 16(9) for defective drafting, acknowledged by the Department.

2.3 Rule 43(7), which requires the Tribunal to order a claimant to pay specified costs in certain circumstances, is expressed to be notwithstanding rule 55(3). The Department states that the italicised words are intended to impose a mandatory rule which overrides any earlier exercise of discretion by the Tribunal in relation to those costs under rule 55(3). Apart from the fact that it is rule 55(2) (not (3)) which confers the discretion to make costs orders, the fact that rule 43(7) is clearly expressed in mandatory terms and rule 55 in discretionary terms means that the former must override the latter and the italicised words are otiose. The Committee accordingly reports rule 43(7) for defective drafting.

2.4 Paragraph (1) of rule 55 defines "costs" for the purpose of the Rules; paragraph (2) provides that the Tribunal may at its discretion, subject to paragraph (3), make orders as to costs; and paragraph (3) empowers the Tribunal to give directions as to payment of costs and deals with the assessment of the sum to be paid pursuant to any order under paragraph (1), (2) or (3).

2.5 The Department states that the reference in paragraph (3) to an order under paragraph (3) is intended to cover any direction under that paragraph. The Committee does not consider that "order" and "direction" are interchangeable. The phrase "or a direction under this paragraph" should have been used instead.

2.6 The Department also admits that the references in paragraphs (3) and (4) to an order under paragraph (1) are inappropriate, and undertakes to make appropriate amendments.

2.7 The Committee therefore reports rule 55 for defective drafting, acknowledged in part by the Department.

2.8 The Department also accepts that a reference in rule 62(1)(a) to rule 28(2) should be to rule 28(4), and that a reference in rule 62(1)(f) to rule 58 is otiose, and the Committee accordingly reports rule 62(1) for defective drafting, acknowledged by the Department.

2.9 Rule 63 deals with the sending and service of documents. Paragraph (5)(b) states that a document sent by first class post is to be treated as having been received on the second day after it was posted. Paragraph (5)(d) states that a document sent by electronic mail or similar means is to be treated as received on the second day after the day on which it is transmitted. Paragraph (6) states that if a document (other than a fax) is served after 5pm on a business day, or at any time on a Saturday, Sunday or a Bank Holiday, it shall be treated as having been served on the next business day (that is, a day other than a Saturday, Sunday, Bank Holiday, Christmas Day or Good Friday). The Committee asked the Department whether "second day" in sub-paragraphs (b) and (d) should have read "second business day".

2.10 The Department argues that paragraph (5) needs to be read in conjunction with paragraph (6), so that a document sent on the Friday before a Bank Holiday would be treated as having been served on the Tuesday following the Bank Holiday. The Committee is not persuaded by this argument. Even if the terms "sent" and "served" are to be read interchangeably (which the Committee doubts), according to paragraph (5)(b), a document posted before 5pm on the Friday is to be treated as having been served or received on the following Sunday. Paragraph (6) applies only when the document is in fact served on the Sunday. For the Department's argument to be correct, paragraph (6) would have needed to refer to the case where a document is served, or is treated by virtue of paragraph (5) as being served, on a Sunday. Similar considerations apply in respect of paragraph (5)(d). The Committee accordingly reports rule 63 for defective drafting.


 
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