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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for Defence, R (on the application of) v The Pensions Appeal Tribunial [2007] EWHC 1451 (Admin) (16 May 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1451.html Cite as: [2007] EWHC 1451 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR DEFENCE | (CLAIMANT) | |
-v- | ||
THE PENSIONS APPEAL TRIBUNAL | (DEFENDANT) | |
(1) MR ANTHONY CORRIE | ||
(AND 18 OTHERS) | (INTERESTED PARTIES) |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Daniel Beard (instructed by Treasury Solicitor) appeared on behalf of the Claimant
Mr Charles Bourne (instructed by Treasury Solicitor) appeared as an Advocate to the Court
The defendant and the interested parties were not represented
____________________
Crown Copyright ©
The proceedings
The legal background and the identification of the issues
"the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement."
"5. Appeals against assessment of extent of disablement
(1) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, the Minister makes an interim assessment of the degree of the disablement, he shall notify the claimant thereof and an appeal shall lie to the Tribunal from the interim assessment and from any subsequent interim assessment, and the Tribunal on any such appeal may uphold the Minister's assessment or may alter the assessment in one or both of the following ways, namely--
(a) by increasing or reducing the degree of disablement it specifies; and
(b) by reducing the period or which the assessment is to be in force.
In this section the expression 'interim assessment' means any assessment other than such a final assessment as is referred to in the next following subsection.
(2) Where, in the case of any such claim as is referred to in section one, section two or section three of this Act in respect of the disablement of any person, it appears to the Minister that the circumstances of the case permit a final settlement of the question to what extent, if any, the said person is disabled, and accordingly--
(a) he decides that there is no disablement or that the disablement has come to an end or, in the case of any such claim as is referred to in section three of this Act, that the disablement is not or is no longer serious and prolonged; or
(b) he makes a final assessment of the degree or nature of the disablement;
he shall notify the claimant of the decision or assessment, stating that it is a final one, and thereupon an appeal shall lie to the Tribunal on the following issues, namely--
(i) whether the circumstances of the case permit of a final settlement of the question aforesaid;
(ii) whether the Minister's decision referred to in paragraph (a) hereof or, as the case may be, the final assessment of the degree or nature of the disablement was right;
and the Tribunal on any such appeal may set aside the said decision or assessment on the ground that the circumstances do not permit of such a final settlement, or may uphold that decision or assessment, or may make such final assessment of the degree or nature of the disablement as they think proper, which may be higher or lower than the Minister's assessment, if any, and if the Tribunal so set aside the Minister's decision or assessment they may, if they think fit, make such interim assessment of the degree or nature of the disablement, to be in force until such date not later than two years after the making of the Tribunal's assessment, as they think proper."
"5B Matters relevant on appeal
In deciding any appeal, a Pensions Appeal Tribunal-
(a) need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decisions appealed against was made."
(3C) Rules under this Schedule may-
(a) make provision with respect to the striking out or reinstatement of proceedings before the Tribunal;
(b) provide that where an appeal to the Tribunal under this Act is struck out in pursuance of such rules no further appeal under this Act shall be brought in respect of the matters to which the struck-out appeal related except with leave given in pursuance of such rules ..."
(1) An appellant may at any time before the hearing give notice to the Pensions Appeal Office that he desires to withdraw his appeal, and thereupon the appeal shall be struck out.
(2) Where, after notice of appeal has been given, the Secretary of State decides the issue arising on the appeal in favour of the appellant, the Secretary of State shall give notice of his decision to the Pension Appeal Office and to the appellant, and the appeal shall be struck out.
(3) In an assessment appeal the making of a new increased assessment for the period under appeal (whether covering additional disabilities or not) shall be deemed to be a decision by the Secretary of State in favour of the appellant and, on notice given in accordance with paragraph (2), the appeal shall be struck out without prejudice to any appeal against that decision."
The rationale of Rule 9(3)
The Tribunal's decision
Decision
There is a second issue on this application, namely whether the PAT had power to re-open its decision not to strike out the appeal under Rule 9(3). The Secretary of State submits that the PAT had such power and should have exercised it. In the light of my judgment on the first issue, I believe that the second issue has been rendered academic. It is plain that the PAT should strike out appeals in the circumstances prescribed by Rule 9(3), and no power to re-open any decision is required in the present context.
The point in issue is not straightforward, and I should not decide it unless it is strictly necessary to do so. Mr Beard rested his case on essentially two arguments. First, he referred to Rule 37, which empowers the PAT or the President to give such directions as may be necessary for mitigating the consequences of non-compliance with any of the Rules. Second, he argued that a decision relating to strike out under Rule 9(3) was constitutive of jurisdiction (see Ashan v Carter [2005] EWCA Civ 990, by Sedley LJ at paragraphs 16 and 17.
The appeals, if continued, would have been nullities in Mr Beard's contention, and it was always open to a Tribunal to re-open an interlocutory decision where there were grounds for believing that a continued purported exercise of jurisdiction would be a nullity or "inexistant" -- a term Mr Beard used drawing on his recondite knowledge of droit administratif. However, I have doubts whether Rule 37 was designed with this type of situation in mind, and I also have doubts whether the distinction between constitutive and adjudicative jurisdiction leads to the conclusion advanced. As Mr Bourne pointed out, there is no general power in Tribunals to revisit interlocutory decisions, whether constitutive or adjudicative, and in this case arguably there was no specific rule which conferred such power. However, in the event, as I have already indicated, I believe that it is unnecessary to decide this question.