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108 provisions
80 Procedure
(1) The Tribunal may make a wasted costs order on its own initiative or on the application of a party.
(2) A party may apply for a wasted costs order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.
(3) The Tribunal must not make a wasted costs order unless the representative has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in respect of the application or proposal.
(4) The Tribunal must inform the representative’s client in writing of any proceedings under this rule and of any order made against the representative.
Where the Tribunal makes a costs order, preparation time order, or wasted costs order, it may also order that the person against whom the order is made must also pay to the Lord Chancellor, in whole or in part, any allowances (other than allowances paid to members of the Tribunal) paid by the Lord Chancellor under section 5(2) or (3) of the Employment Tribunals Act to any person for the purposes of, or in connection with, that person’s attendance at the Tribunal.
In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.
(1) Subject to paragraph (2), documents may be sent to the Tribunal—
(a) by post;
(b) by direct delivery to the appropriate tribunal office (including delivery by a courier or messenger service);
(c) by electronic communication.
(2) A claim form, or a response form may only be sent in accordance with any practice direction.
(3) The Tribunal must notify the parties following the presentation of the claim of the address of the tribunal office dealing with the case (including any email or other electronic address) and all documents must be sent to either the postal, email or other electronic address so notified.
(4) The Tribunal may from time to time notify the parties of any change of address, or that a particular form of communication should or should not be used, and any documents must be sent to the Tribunal in accordance with that notification.
(1) Documents may be sent to a party (whether by the Tribunal or by another party)—
(a) by post;
(b) by direct delivery to that party’s address (including delivery by a courier or messenger service);
(c) by electronic communication;
(d) by being handed personally—
(i) if the party is not represented, or if no representative has been named in the claim form or response form, to the party,
(ii) if the party is represented, to the party’s representative, or
(iii) on the occasion of a hearing, to any person identified by the party as representing that party at that hearing.
(2) Where a document is required to be sent to a claimant or a respondent, the document must be sent—
(a) if the party is not represented, to the address given in the claim form or response form (as appropriate) or to the address notified by that party to which documents may be sent;
(b) if the party is represented, to the representative's address or to the address notified by that party to which documents may be sent.
(3) If a party has given both a postal address and one or more electronic addresses, any of them may be used unless the party has informed the Tribunal and all other parties in writing that a particular address should or should not be used.
(4) Paragraph (2)(a) does not prevent the Tribunal also sending a copy of the claim form to a respondent at an address that differs from that provided on the claim form.
(1) Subject to rule 86 (special cases), documents to be sent to a person who is not a party (“a non-party”) must be sent to the address provided by that non-party to which documents should be sent.
(2) If no address for sending of documents is provided, documents must be sent—
(a) if the non-party is not a corporate body, to any known address or place of business in the United Kingdom, or
(b) if the non-party is a corporate body, to its registered or principal office in the United Kingdom or, if permitted by the Tribunal, to an address outside the United Kingdom.
Documents to be sent to the Secretary of State, the Lord Chancellor, the Attorney General for England and Wales, the Solicitor General for England and Wales, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for Scotland, or the Counsel General to the Welsh Government, in cases where they are not parties, must be sent in accordance with any practice direction.
Where no address for the sending of documents is known or it appears that a document sent in accordance with rules 83 to 86 is unlikely to come to the attention of the addressee, the Tribunal may order that documents must be sent to an alternative address in such manner as the Tribunal may direct.
Where a document has been sent in accordance with rules 83 to 87, it must, unless the contrary is proved, be taken to have been received by the addressee—
(a) if sent by post, on the day on which it would be received in the ordinary course of post;
(b) if sent by means of electronic communication, on the day of transmission;
(c) if delivered directly or personally, on the day of delivery.
The Tribunal may treat any document as having been received by a person, notwithstanding any non-compliance with rules 83 to 87, if satisfied that the document in question, or its substance, has in fact come to the attention of that person.
90 Correspondence with the Tribunal: copying to other parties
(1) Where a party sends a communication to the Tribunal it must send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise).
(2) Paragraph (1) does not apply to an application for an order under rule 34 (requirement to give evidence) or to the detailed grounds accompanying an application under rule 93(4) (national security proceedings).
(3) The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so.
In these Rules, where a party or the Tribunal is required to send any document or communication to the Tribunal or another party and does so through the Tribunal’s digital case management system and in accordance with any practice direction, there shall be deemed compliance.
(1) Where proceedings concern an enactment which provides for conciliation, the Tribunal—
(a) must, send a copy of the claim form, response form and any reply to an ACAS conciliation officer at the same time as they are sent to the claimant or respondent (as the case may be), and
(b) must, when it sends a copy of the claim form to the respondent or any other party inform the parties that the services of an ACAS conciliation officer are available to them.
(2) Subject to rules 49 (privacy and restrictions on disclosure) and 93 (national security proceedings), a representative of ACAS may attend any preliminary hearing.
(1) Where in relation to particular Crown employment proceedings a Minister considers that it would be expedient in the interests of national security, the Minister may direct the Tribunal to—
(a) conduct all or part of the proceedings in private;
(b) exclude a person from all or part of the proceedings;
(c) take steps to conceal the identity of a witness in the proceedings.
(2) Where the Tribunal considers it expedient in the interests of national security, it may order—
(a) in relation to particular proceedings (including Crown employment proceedings), anything which can be required to be done under paragraph (1);
(b) a person not to disclose any document (or the contents of any document), where provided for the purposes of the proceedings, to the public or any other person (save for any specified person).
(3) Where the Tribunal considers that it may be necessary to make an order under paragraph (2) in relation to particular proceedings (including Crown employment proceedings), the Tribunal may consider any material provided by a party (or where a Minister is not a party, by a Minister) without providing that material to any other person. Such material must be used by the Tribunal solely for the purposes of deciding whether to make that order (unless that material is subsequently used as evidence in the proceedings by a party).
(4) Where a Minister considers that it would be appropriate for the Tribunal to make an order under paragraph (2), the Minister may make an application for such an order.
(5) Where a Minister has made an application under paragraph (4), the Tribunal may order—
(a) in relation to the part of the proceedings preceding the outcome of the application, anything which can be required to be done under paragraph (1);
(b) a person not to disclose any document (or the contents of any document) to any other person (save for any specified person), where provided for the purposes of the proceedings preceding the outcome of the application.
(6) Where a Minister has made an application under paragraph (4) for an order to exclude any person from all or part of the proceedings, the Tribunal must not send a copy of the response to that person, pending the decision on the application.
(7) If before the expiry of the period specified in rule 17(1) (response) a Minister makes a direction under paragraph (1) or an application under paragraph (4), the Minister may apply for an extension of the time for presenting a response.
(8) A direction under paragraph (1) or an application under paragraph (4) may be made irrespective of whether or not the Minister is a party.
(9) Where the Tribunal decides not to make an order under paragraph (2), rule 6 of Schedule 1 (reasons in national security proceedings) applies to the written reasons given by the Tribunal under rule 60 (reasons) for that decision.
(10) The Tribunal must ensure that in exercising its functions, information is not disclosed contrary to the interests of national security.
(11) Any order made under paragraph (2) must be kept under review by the Tribunal.
(12) “Crown employment proceedings” has the same meaning as in section 10(8) of the Employment Tribunals Act.
When the Tribunal hears an application for interim relief (or for its variation or revocation) under section 161 or 165 of the Trade Union and Labour Relations (Consolidation) Act 1992 or section 128 or 131 of the Employment Rights Act 1996, rules 52 to 54 (preliminary hearings) apply to the hearing and the Tribunal must not hear oral evidence unless it directs otherwise.
95 Proceedings involving the National Insurance Fund
The Secretary of State is entitled to appear and be heard at any hearing in relation to proceedings which may involve a payment out of the National Insurance Fund and must be treated as a party for the purposes of these Rules.
(1) Where a claim includes a complaint under section 146(1) of the Equality Act relating to a term of a collective agreement, the following persons, whether or not identified in the claim, must be regarded as the persons against whom a remedy is claimed and must be treated as respondents for the purposes of these Rules—
(a) the claimant’s employer (or prospective employer), and
(b) every organisation of employers and organisation of workers, and every association of or representative of such organisations, which, if the terms were to be varied voluntarily, would be likely, in the opinion of the Tribunal, to negotiate the variation.
(2) An organisation or association must not be treated as a respondent if the Tribunal, having made such enquiries of the claimant and such other enquiries as the Tribunal thinks fit, is of the opinion that it is not reasonably practicable to identify the organisation or association.
(1) Where a devolution issue arises, the Tribunal must as soon as practicable send notice of that fact and a copy of the claim form, response form and any reply—
(a) if it is a Scottish devolution issue, to the Advocate General for Scotland and the Lord Advocate, or
(b) if it is a Welsh devolution issue, to the Attorney General and the Counsel General to the Welsh Government,
unless they are a party to the proceedings.
(2) A person to whom notice is sent may be treated as a party to the proceedings, so far as the proceedings relate to the devolution issue, if that person sends notice to the Tribunal within 14 days of receiving a notice under paragraph (1).
(3) Any notices sent under paragraph (1) or (2) must at the same time be sent to the parties.
(4) “Devolution issue” has the meaning given to it in paragraph 1 of Schedule 6 to the Scotland Act 1998 (for the purposes of a Scottish devolution issue), and in paragraph 1 of Schedule 9 to the Government of Wales Act 2006 (for the purposes of a Welsh devolution issue).
98 Transfer of proceedings between Scotland and England and Wales
(1) The Tribunal may on its own initiative or on the application of a party, transfer proceedings started in one jurisdiction (“the transferring jurisdiction”) to the other (“the receiving jurisdiction”), if the following conditions are met—
(a) the proceedings could have been started in the receiving jurisdiction under rule 10 (presenting the claim),
(b) the relevant authority in the transferring jurisdiction considers that the proceedings would more conveniently be determined in the receiving jurisdiction, and
(c) the relevant authority in the receiving jurisdiction consents to the transfer.
(2) In this rule, the relevant authority is—
(a) in England and Wales, the President (England and Wales) or a Regional Employment Judge;
(b) in Scotland, the President (Scotland) or Vice President.
The Tribunal may provide any information or documents requested by the Attorney General, a Solicitor General or the Lord Advocate for the purpose of preparing an application or considering whether to make an application under section 42 of the Senior Courts Act 1981 (restriction of vexatious legal proceedings), section 33 of the Employment Tribunals Act (restriction of vexatious proceedings), or section 100 of the Courts Reform (Scotland) Act 2014 (vexatious litigation orders).
101 Information to the Commission for Equality and Human Rights
(1) The Tribunal must send to the Commission for Equality and Human Rights copies of all judgments and written reasons relating to complaints under sections 120, 127 or 146 of the Equality Act.
(2) Paragraph (1) does not apply to any proceedings where a Minister of the Crown has given a direction or the Tribunal has made an order under rule 93 (national security proceedings), and any of the Security Service, the Secret Intelligence Service or the Government Communications Headquarters is a party to the proceedings.
(1) For the purposes of a levy appeal, references in these Rules to a claim or claimant must be read as references to a levy appeal or to an appellant in a levy appeal respectively.
(2) “Levy appeal” means an appeal against an assessment to a levy imposed under a levy order under section 11 of the Industrial Training Act 1982.
103 Appeals against improvement and prohibition notices
(1) This rule applies to a person who has presented a claim to the Tribunal in accordance with regulation 14A of the 2013 Regulations.
(2) For the purposes of an appeal against an improvement notice or a prohibition notice under section 21 or 22 respectively of the Health and Safety at Work etc. Act 1974, these Rules must be treated as modified in the following ways—
(a) references to a claim or claimant must be read as references to an appeal or to an appellant in an appeal respectively;
(b) references to a respondent must be read as references to the inspector appointed under section 19(1) of the Health and Safety at Work etc. Act 1974 who issued the notice which is the subject of the appeal.
104 Appeals against notices given under the Energy Act 2013
(1) This rule applies to a person who has presented a claim to the Tribunal in accordance with regulation 14B of the 2013 Regulations.
(2) For the purposes of an appeal against an improvement notice or a prohibition notice under paragraph 3 or 4 respectively of Schedule 8 to the Energy Act 2013, these Rules must be treated as modified in the following ways—
(a) references to a claim or claimant must be read as references to an appeal or to an appellant in an appeal respectively;
(b) references to a respondent must be read as references to the inspector appointed under paragraph 1 of Schedule 8 to the Energy Act 2013 who issued the notice which is the subject of the appeal.
(1) For the purposes of an appeal against an unlawful act notice, these Rules must be treated as modified in the following ways—
(a) references to a claim or claimant must be read as references to a notice of appeal or to an appellant in an appeal against an unlawful act notice respectively;
(b) references to a respondent must be read as references to the Commission for Equality and Human Rights.
(2) “Unlawful act notice” means a notice under section 21 of the Equality Act 2006.
Schedule 1 Procedure in national security proceedings
Rule 1(3)(a)
Application and interpretation of Schedule 1
1 (1) This Schedule applies to national security proceedings.
(2) In this Schedule, “excluded person” means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of a direction under rule 93(1)(b) or an order under rule 93(2)(a) (read with rule 93(1)(b)).
(3) Any reference in this Schedule to a rule is a reference to a rule in Parts 1 to 15 of these Rules.
Sending of documents
2 The Tribunal must not send a copy of the response to any excluded person.
Witness orders and disclosure of documents
3 (1) Where a person or their representative has been excluded under rule 93 (national security proceedings) from all or part of the proceedings and the Tribunal is considering whether to make an order under rule 33 (disclosure of documents and information) or 34 (requirement to attend to give evidence), a Minister (whether or not the Minister is a party to the proceedings) may make an application to the Tribunal objecting to that order.
(2) If an order under rule 33 or 34 has been made, the Minister may make an application to vary or set aside the order.
(3) The Tribunal must hear and determine the Minister’s application in private and the Minister is entitled to address the Tribunal.
Special advocate
4 (1) The Tribunal must inform the relevant Law Officer if a party becomes an excluded person.
(2) The relevant Law Officer may appoint a special advocate to represent the interests of a person in respect of those parts of the proceedings from which—
(a) the person’s representative is excluded;
(b) the person and their representative are excluded;
(c) the person is excluded and is unrepresented.
(3) A special advocate must be a person who has a right of audience in relation to any class of proceedings in any part of the Senior Courts or all proceedings in county courts or magistrates’ courts, or must be an advocate or a solicitor admitted in Scotland.
(4) An excluded person (where that person is a party) may make a statement to the Tribunal before the commencement of the proceedings or the relevant part of the proceedings.
(5) The special advocate may communicate, directly or indirectly, with an excluded person at any time before receiving material from a Minister in relation to which the Minister states an objection to disclosure to the excluded person (“closed material”).
(6) After receiving closed material, the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (7) or (9) or an order of the Tribunal.
(7) The special advocate may communicate about the proceedings with—
(a) the Tribunal;
(b) the Minister, or their representative;
(c) the relevant Law Officer, or their representative;
(d) any other person, except for an excluded person or their representative, with whom it is necessary for administrative purposes to communicate about matters not connected with the substance of the proceedings.
(8) The special advocate may apply for an order from the Tribunal to authorise communication with an excluded person or with any other person. If such an application is made—
(a) the Tribunal must notify the Minister of the request, and
(b) the Minister may, within a period specified by the Tribunal, send to the Tribunal and the special advocate notice of any objection to the proposed communication.
(9) After the special advocate has received closed material, an excluded person may only communicate with the special advocate in writing and the special advocate must not reply to the communication, except that the special advocate may send a written acknowledgment of receipt to the representative for the excluded person.
(10) In this rule, “the relevant Law Officer” means, in relation to England and Wales, the Attorney General, and, in relation to Scotland, the Advocate General for Scotland.
(11) Reference in Parts 1 to 15 of these Rules and this Schedule to a party or parties includes any special advocate appointed in particular proceedings, except for references in rules 4, 6(2)(c), 35, and 37(2) and (3), the first reference in rule 38, and references in rules 39, 40, 47, 62, 64, 72 to 82, 92 and 95.
Hearings
5 Subject to any order under rule 49 (privacy and restrictions on disclosure) or any direction or order under rule 93 (national security proceedings), any hearing must take place in public, and any party may attend and participate in the hearing.
Reasons in national security proceedings
6 (1) The Tribunal must send a copy of the written reasons given under rule 60 (reasons) to the Minister.
(2) The Tribunal must allow 42 days from the date that a copy of the written reasons is sent under paragraph (1) for the Minister to make a direction under paragraph (4). If after this period the Minister has not made a direction, the Tribunal may send the written reasons to each party and where the written reasons relate to a judgment, enter them onto the Register.
(3) If the Tribunal considers it expedient in the interests of national security, it may by order take steps to keep secret all or part of the written reasons.
(4) If the Minister considers it expedient in the interests of national security, the Minister may direct that the written reasons—
(a) must not be disclosed to specified persons and require the Tribunal to prepare a further document which sets out the reasons for the decision, but omits specified information (“the edited reasons”);
(b) must not be disclosed to specified persons and that no further document setting out the reasons for the decision should be prepared.
(5) Where the Minister has directed the Tribunal to prepare the edited reasons, the presiding member must initial each omission.
(6) Where a direction has been made under paragraph (4)(a), the Tribunal must—
(a) send the edited reasons to the specified persons,
(b) send the edited reasons and the written reasons to the relevant persons listed in paragraph (8), and
(c) where the written reasons relate to a judgment, enter the edited reasons on the Register but must not enter the written reasons on the Register.
(7) Where a direction has been made under paragraph (4)(b), the Tribunal must send the written reasons to the relevant persons listed in paragraph (8), but must not enter the written reasons on the Register.
(8) The relevant persons are—
(a) the respondent or the respondent’s representative, provided that they were not specified in the direction made under paragraph (4),
(b) the claimant or the claimant’s representative, provided that they were not specified in the direction made under paragraph (4),
(c) any special advocate appointed in the proceedings, and
(d) where the proceedings were referred to the Tribunal by a court, to that court.
(9) Where written reasons or edited reasons are corrected under rule 67 (correction of clerical mistakes and accidental slips), the Tribunal must send a copy of the corrected reasons to the same persons who had been sent the written reasons or edited reasons respectively.
Rule 1(3)(b)
Application and interpretation of Schedule 2
1 (1) This Schedule applies to equal value claims.
(2) In this Schedule—
“comparator” means the person of the opposite sex to the claimant in relation to whom the claimant alleges that his or her work is of equal value;
“the facts relating to the question” has the meaning in rule 6(1)(a);
“independent expert” means a member of the panel of independent experts mentioned in section 131(8) of the Equality Act;
“the question” means whether the claimant’s work is of equal value to that of the comparator;
“report” means a report required by a Tribunal to be prepared in accordance with section 131(2) of the Equality Act;
“study” means a job evaluation study as defined in section 80(5) of the Equality Act.
(3) Any reference in this Schedule to a rule, is a reference to a rule in this Schedule unless otherwise provided.
General power to manage proceedings
2 (1) Subject to rules 3(1) (conduct of stage 1 equal value hearing) and 6(1) (conduct of stage 2 equal value hearing) the Tribunal may order—
(a) that no new facts are to be admitted in evidence by the Tribunal unless they have been disclosed to all other parties in writing before a date specified by the Tribunal (unless it was not reasonably practicable for a party to have done so);
(b) the parties to send copies of documents or provide information to the independent expert;
(c) the respondent to grant the independent expert access to the respondent’s premises during a period specified in the order to allow the independent expert to conduct interviews with persons identified as relevant by the independent expert;
(d) when more than one expert is to give evidence in the proceedings, that those experts present to the Tribunal a joint statement of matters which are agreed between them and matters on which they disagree.
Conduct of stage 1 equal value hearing
3 (1) Where there is a dispute as to whether one person’s work is of equal value to another’s (equal value being construed in accordance with section 65(6) of the Equality Act), the Tribunal must conduct a hearing, which must be referred to as a “stage 1 equal value hearing”, and at that hearing must—
(a) strike out the claim, or the relevant part of it, if in accordance with section 131(6) of the Equality Act the Tribunal must determine that the work of the claimant and the comparator are not of equal value,
(b) determine the question or require an independent expert to prepare a report on the question,
(c) if the Tribunal has decided to require an independent expert to prepare a report on the question, fix a date for a further hearing, which must be referred to as a “stage 2 equal value hearing”, and
(d) if the Tribunal has not decided to require an independent expert to prepare a report on the question, fix a date for the final hearing.
(2) Before a claim or a part of it is struck out under sub-paragraph (1)(a), the Tribunal must send notice to the claimant and allow the claimant to make representations to the Tribunal as to whether the evaluation contained in the study in question falls within sub-paragraph (a) or (b) of section 131(6) of the Equality Act. The Tribunal is not required to send a notice under this paragraph if the claimant has been given an opportunity to make such representations orally to the Tribunal.
(3) The Tribunal may, on the application of a party, hear evidence and submissions on the issue of defence of material factor contained in section 69 of the Equality Act before determining whether to require an independent expert to prepare a report under paragraph (1)(b).
(4) The Tribunal must give the parties reasonable notice of the date of the stage 1 equal value hearing. The notice must specify the matters that are to be, or may be, considered at the hearing and give notice of the standard orders in rule 4.
Standard orders for stage 1 equal value hearing
4 (1) At a stage 1 equal value hearing a Tribunal must, unless it considers it inappropriate to do so, order that—
(a) before the end of the period of 14 days from the date of the stage 1 equal value hearing the claimant must—
(i) disclose in writing to the respondent the name of any comparator, or, if the claimant is not able to name the comparator, disclose information which enables the respondent to identify the comparator, and
(ii) identify to the respondent in writing the period in relation to which the claimant considers that the claimant’s work and that of the comparator are to be compared,
(b) before the end of the period of 28 days from the date of the stage 1 equal value hearing—
(i) where the claimant has not disclosed the name of the comparator to the respondent under sub-paragraph (a)(i) but the respondent has been provided with sufficient detail to be able to identify the comparator, the respondent must disclose in writing the name of the comparator to the claimant,
(ii) the parties must provide each other with written job descriptions for the claimant and any comparator, and
(iii) the parties must identify to each other in writing the facts which they consider relevant to the question,
(c) the respondent must grant access to the respondent’s premises during a period specified in the order to allow the claimant and the claimant’s representative to interview any comparator,
(d) the parties must before the end of the period of 56 days from the date of the stage 1 equal value hearing send to the Tribunal an agreed written statement specifying—
(i) job descriptions for the claimant and any comparator,
(ii) the facts which both parties consider are relevant to the question, and
(iii) the facts on which the parties disagree (as to the fact or as to the relevance to the question) and a summary of their reasons for disagreeing,
(e) the parties must, at least 56 days before the final hearing, disclose to each other, to any independent expert or other expert and to the Tribunal written statements of any facts on which they intend to rely in evidence at the final hearing, and
(f) the parties must, at least 28 days before the final hearing, send to the Tribunal a statement of facts and issues on which the parties agree, a statement of facts and issues on which the parties disagree and a summary of their reasons for disagreeing.
(2) The Tribunal may add to, vary or omit any of the standard orders in paragraph (1).
Involvement of independent expert in fact finding
5 Where the Tribunal has decided to require an independent expert to prepare a report on the question, it may, on its own initiative or on the application of a party, order the independent expert to assist the Tribunal in establishing the facts on which the independent expert may rely in preparing the report.
Conduct of stage 2 equal value hearing
6 (1) At a stage 2 equal value hearing the Tribunal must—
(a) make a determination of facts on which the parties cannot agree which relate to the question and must require the independent expert to prepare the report on the basis of facts which have (at any stage of the proceedings) either been agreed between the parties or determined by the Tribunal (referred to as “the facts relating to the question”), and
(b) fix a date for the final hearing.
(2) Subject to paragraph (3), the facts relating to the question are the only facts on which the Tribunal must rely in relation to the question at the final hearing.
(3) At any stage of the proceedings the independent expert may make an application to the Tribunal for some or all of the facts relating to the question to be amended, supplemented or omitted.
(4) The Tribunal must give the parties reasonable notice of the date of the stage 2 equal value hearing. The notice must draw the attention of the parties to this rule and give notice of the standard orders in rule 7.
Standard orders for stage 2 equal value hearing
7 (1) At a stage 2 equal value hearing the Tribunal must, unless it considers it inappropriate to do so, order that—
(a) by a specified date the independent expert must prepare their report on the question and must (subject to rule 13 (national security proceedings)) send copies of it to the parties and to the Tribunal, and
(b) the independent expert must prepare their report on the question on the basis only of the facts relating to the question.
(2) The Tribunal may add to, vary or omit any of the standard orders in paragraph (1).
Final hearing
8 (1) Where an independent expert has prepared a report, unless the Tribunal determines that the report is not based on the facts relating to the question, the report must be admitted in evidence.
(2) If the Tribunal does not admit the report of an independent expert in accordance with paragraph (1), it may determine the question itself or require another independent expert to prepare a report on the question.
(3) The Tribunal may refuse to admit evidence of facts or hear submissions on issues which have not been disclosed to the other party as required by these Rules or any order (unless it was not reasonably practicable for a party to have done so).
Duties and powers of the independent expert
9 (1) When the Tribunal makes an order under rule 3(1)(b) (conduct of stage 1 equal value hearing) or 5 (involvement of independent expert in fact finding), it must inform the independent expert of the duties and powers under this rule.
(2) The independent expert has a duty to the Tribunal to—
(a) assist it in furthering the overriding objective,
(b) comply with the requirements of these Rules and any orders made by the Tribunal,
(c) keep the Tribunal informed of any delay in complying with any order (with the exception of minor or insignificant delays in compliance),
(d) comply with any timetable imposed by the Tribunal in so far as this is reasonably practicable,
(e) when requested, inform the Tribunal of progress in the preparation of the report,
(f) prepare a report on the question based on the facts relating to the question and (subject to rule 13 (national security proceedings)) send it to the Tribunal and the parties, and
(g) attend hearings.
(3) The independent expert may make an application for any order or for a hearing to be held as if the independent expert were a party to the proceedings.
(4) At any stage of the proceedings the Tribunal may, after giving the independent expert the opportunity to make representations, withdraw the requirement on the independent expert to prepare a report. If it does so, the Tribunal may itself determine the question, or it may require a different independent expert to prepare a report.
(5) When paragraph (4) applies, the independent expert who is no longer required to prepare a report must provide the Tribunal with all documentation and work in progress relating to the proceedings by a date specified by the Tribunal. Such documentation and work in progress must be in a form which the Tribunal is able to use and may be used in relation to those proceedings by the Tribunal or by another independent expert.
Use of expert evidence
10 (1) The Tribunal must restrict expert evidence to that which it considers is reasonably required to resolve the proceedings.
(2) An expert has a duty to assist the Tribunal on matters within the expert’s expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
(3) No party may call an expert or put in evidence an expert’s report without the permission of the Tribunal.
(4) No expert report shall be put in evidence unless it has been disclosed to all other parties and any independent expert at least 28 days before the final hearing.
(5) In proceedings in which an independent expert has been required to prepare a report on the question, the Tribunal must not admit evidence of another expert on the question unless such evidence is based on the facts relating to the question. Unless the Tribunal considers it inappropriate to do so, any such expert report must be disclosed to all parties and to the Tribunal on the same date on which the independent expert is required to send their report to the parties and to the Tribunal.
(6) If an expert (other than an independent expert) does not comply with these Rules or an order made by the Tribunal, the Tribunal may order that the evidence of that expert must not be admitted.
(7) Where two or more parties wish to submit expert evidence on a particular issue, the Tribunal may order that the evidence on that issue is to be given by one joint expert only. If the parties wishing to instruct the joint expert cannot agree an expert, the Tribunal may select an expert.
Written questions to experts (including independent experts)
11 (1) When an expert has prepared a report, a party or any other expert involved in the proceedings may put written questions about the report to the expert who has prepared the report.
(2) Unless the Tribunal agrees otherwise, written questions under paragraph (1)—
(a) may be put once only,
(b) must be put within 28 days of the date on which the parties were sent the report,
(c) must be for the purpose only of clarifying the factual basis of the report, and
(d) must be copied to all other parties and experts involved in the proceedings at the same time as they are sent to the expert who prepared the report.
(3) An expert must answer written questions within 28 days of receipt and the answers must be treated as part of the expert’s report.
(4) Where a party has put a written question to an expert instructed by another party and the expert does not answer that question within 28 days, the Tribunal may order that the party instructing that expert may not rely on the evidence of that expert.
(5) In this rule, reference to an expert includes reference to an independent expert.
Procedural matters
12 (1) Where an independent expert has been required to prepare a report, the Tribunal must send that expert notice of any hearing, application, order or judgment in the proceedings as if the independent expert were a party to those proceedings and when these Rules or an order requires a party to provide information to another party, such information must also be provided to the independent expert.
(2) There may be more than one stage 1 or stage 2 equal value hearing in any case.
National security proceedings
13 Where in an equal value claim a direction is given, or order is made, under rule 93 of Part 15 to these Rules (national security proceedings)—
(a) any independent expert appointed must send a copy of any report and any responses to written questions to the Tribunal only, and
(b) rule 6 of Schedule 1 to these Rules (reasons in national security proceedings) applies with the following modifications—
(i) references to the written reasons must be read as references to the independent expert’s report and any answers to that report;
(ii) references to the edited reasons must be read as references to the edited report;
(iii) references to the reasons for the decision must be read as references to the independent expert’s report and any answers to that report;
(iv) in paragraph (1), omit “given under rule 60 (reasons)”;
(v) in paragraph (2)—
(aa) after the words “under paragraph (1)” insert the words “, or if later, from the date that any answers to that report are sent,”;
(bb) omit “and where the written reasons relate to a judgment, enter them onto the Register”;
(vi) paragraph (6)(c) does not apply;
(vii) in paragraph (7), omit “, but must not enter the written reasons on the Register”;
(viii) omit paragraph (9).