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
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
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.