Joint Committee on Statutory Instruments Twenty-Fifth Report


Appendix 2 S.I. 2003/1372: memorandum from the Department of Trade and Industry

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

1. The Joint Committee asked the Department of Trade and Industry to submit a memorandum on the following points:

Rule 16(9) requires any response to a statement of intervention to contain particulars which must already have been included in that statement. Explain the purpose of this requirement.

2. The purpose of this requirement was that any response should be in a similar form to the statement of intervention, subject to any directions given under rule 16(7), to enable ease of use for the Tribunal and other parties. It is recognised, however, that the drafting does not clearly achieve this result and the Department therefore proposes to review with the Tribunal the need for an appropriate modification to the rules to clarify the intention.

Explain the purpose and effect of the words "Notwithstanding rule 55(3)" in rule 43(7).

3. The words "notwithstanding rule 55(3)" are intended to impose a mandatory rule in relation to the awarding of costs in a case where a claimant fails to better a payment to settle which overrides any earlier exercise of discretion in relation to those costs under rule 55(3).

With respect to rule 55, explain:

(a) why paragraph (2) is made subject to paragraph (3);

(b) the reference in paragraph (3) to an order under paragraph (1) or (3);

(c) the reference in paragraph (4) to an order made pursuant to paragraph (1).

4. As to point (a), paragraph (2) is made subject to paragraph (3) to make clear that the discretion in rule 55(2) cannot be exercised in relation to any matter to the extent that the matter has already been determined under rule 55(3).

5. As to point (b), it is not now thought the reference to paragraph (1) adds anything as that paragraph does not itself give an order making power. The reference to an order under paragraph (3) was intended to cover any direction made under rule 55(3).

6. As to point (c), it is not now considered that the reference to paragraph (1) adds anything as that paragraph does not give an order making power. It is proposed to make appropriate modifications to the rules to deal with points (b) and (c).

With respect to rule 62:

(a) in paragraph (1)(a), should the reference to rule 28(2) be to rule 8(2)?

(b) identify the procedural acts required or authorised by rule 58 (see rule 62(1)(f)).

7. As to point (a), the reference should be to rule 28(4) rather than rule 28(2). It is proposed to correct this by an amending instrument.

8. As to point (b), the reference to rule 58 was intended to cover any administrative or procedural act that may be made by the Tribunal where an application for permission to appeal to the Tribunal is made. However, the Department now doubts whether any such acts will be taken under rule 58, rather than rule 59, and proposes to remove this reference.

In rule 63(5)(b) and (d), should "the second day" read "the second business day"? If not, what is the effect of this rule where a document is sent on the Friday before a Bank Holiday weekend?

9. No. Rules 63(5)(b) and (d) need to be read in conjunction with rule 63(6). If a document is sent on the Friday before a Bank Holiday weekend 63(5)(b) or (d) taken alone would mean that it would be treated as having been received 2 days later i.e. on a Sunday except that 63(6) provides that if a document (other than a facsimile, for which there is specific reference to "business day") is served at any time on a Saturday, Sunday or a Bank Holiday, the document shall be treated as having been served on the next business day. A document falling within rules 63(5)(a), (b) or (d) served on the Friday before a Bank Holiday would therefore be treated as having been served on the Tuesday after the Bank Holiday, that being the next "business day".

10. It is recognised that where amendments to the Competition Appeal Tribunal Rules are to be made to deal with the above points, they should be made at an early opportunity.

1st July 2003


 
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