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
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
(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
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