Jonathan Mitchell QC

In the Court of Session, appeals against statutory tribunals are brought under Chapter 41 of the Rules of Court. Rules 41.3(1A) and 41.21(4) provide that the appeal should be intimated to the tribunal as well as any party to the case. What happens if the appeal attacks the manner in which the tribunal acted, for example alleging a breach of natural justice? This happened recently in S.C. v City of Edinburgh Council, 2008 CSOH 60, in which I appeared for the respondent. In S.C., it was suggested that the Additional Support Needs Tribunal had no right to appear in the appeal.

Sometimes the body appealed against enters the process as a respondent. The Scottish Information Commissioner, for example, has done so in every appeal to the Court of Session against his decisions under FOISA. Dumfries and Galloway Council v Scottish Information Commissioner 2008 CSIH 12 is an example. His appearance, invariably in cases when the true respondent neither appeared nor could have been expected to, has never, so far as I know, been criticised as improper. But other tribunals, on the whole, do not.

In N.C.B. v. Collins, 29 January 1970, an appeal against a decision of a Rent Assessment Committee which has never been reported but was helpfully noted by the Sheriff in Lightheart v City of Edinburgh DLB, 1978 SLT (Sh. Ct.) 41, the Inner House held:

“This is a statutory appeal from an administrative tribunal. In such appeals apart altogether from the merits of the issue between the parties there may well be raised some question as to the conduct of the proceedings by the Chairman, or some dispute as to jurisdiction or ultra vires which is alleged to have arisen at the hearing before the Committee. To meet such a situation it is therefore peremptory under the Rules of Court that the Chairman should be given an opportunity of informing the Court of the facts on these matters as he sees them. Hence the requirement of intimation to him. On the other hand under the Rules of Court the Chairman is under no obligation to lodge answers. He only requires to do so ‘if so advised’, and these words are inserted in the Rules to cover a case where for instance his conduct of the original hearing is criticised or some dispute about jurisdiction or ultra vires is raised. […] it would be quite contrary to our principles of justice and fair play if the Chairman [sc. of a rent assessment committee] having decided the case with the help of his Committee then proceeded to step down into the arena and to argue before the Appeal Court that the issue had been rightly decided at the Hearing before him.”

In S.C., the tribunal answered the allegations against it by letter to the Court. What happened can be seen at paragraphs 8 to 14 of Lord Wheatley’s opinion. It was common ground that the court could proceed on the basis of the letter sent, the relevant facts not being in dispute. But there seems to be no reason in principle why a tribunal which has been attacked in this way should not appear in the appeal, and I suggest that following N.C.B. v. Collins it has a locus to do so. Whether N.C.B. v. Collins should still be followed in a case, such as the FOISA appeals, where the tribunal appears to defend its decision on the merits, is a more difficult question. In Coakley v Secretary of State for Transport 2003 SC 455, an Extra Division held, with what seems to have been a rather limited consideration of authority, that a tribunal had no locus to do so; but later in the same case, 2004 SC 398, a differently-composed Extra Division suggested that that might be reviewed by a larger court.

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