Secretary of State for Defence, R (on the application of) v Pensions Appeal Tribunal

Where judicial review raises an important issue of general application affecting numerous present and future cases, the court should ordinarily decide it only after hearing properly presented arguments on both sides. The absence of representation for an independent tribunal is not, by itself, a sufficient basis for determining the issue in the tribunal’s absence. Where appropriate, the court may adjourn the claim and invite the Attorney General to consider appointing counsel as amicus curiae. Delay caused by that course may be justified where it secures a properly argued and reliable decision.

The Secretary of State for Defence sought judicial review of the President of the Pensions Appeal Tribunals’ refusal to strike out an appeal under rule 9 of the Pensions Appeal Tribunal (England and Wales) Rules 1980. The individual appeal had subsequently been withdrawn, but the application raised wider questions about the validity and meaning of rule 9, including whether the tribunal could require a statement of case when deciding whether an apparent withdrawal was genuine.

The tribunal was not represented at the substantive hearing. The court had previously adjourned the matter to allow discussions between the parties. The central issue was whether the wider questions should be decided on the Secretary of State’s submissions alone.

1. Adjournment ordered. The court declined to determine the substantive judicial review issues in the absence of representation for the Pensions Appeal Tribunals. The questions concerning the validity, meaning and practical operation of rule 9 were of general significance and affected many existing and future appeals.
2. The Secretary of State’s application was not confined to the individual case, because that appeal had already been disposed of following acceptance of the appellant’s withdrawal. The issues included whether rule 9(1) required the tribunal to decide whether an apparent withdrawal was genuine and whether the Secretary of State could be required to prepare a substantive statement of case for that purpose. Related issues arose under rules 9(2) and 9(3), including the effect of an increased assessment on a pending appeal.
3. Although the Secretary of State was ready to proceed, and the tribunal had previously advanced substantial arguments concerning vires, article 6 of the European Convention on Human Rights and construction, those arguments were no longer to be presented by counsel properly instructed. The President’s practical experience could inform the issues, but was not a substitute for legal submissions.
4. It was inappropriate to decide an important issue of general application after hearing only one side. The court therefore directed that the matter be adjourned and that the Administrative Court Office ask the Attorney General to consider providing counsel to act as amicus curiae and present the arguments on both sides.
5. The case was directed to be listed on the first available date after the beginning of the following term, with a time estimate of half a day. Costs were reserved.

The judgment records that Walker J had previously adjourned the claim on 1 February 2005 to permit further discussions. No citation for that earlier order is stated. The present court adjourned the substantive judicial review application for further argument.