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The Pensions Regulator Tribunal Rules 2005

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PART 2Preliminary matters

Reference notice

4.—(1) A reference shall be made by way of a written notice (“the reference notice”) signed and filed by or on behalf of the applicant.

(2) The reference notice shall state—

(a)the name and address of the applicant;

(b)the name and address of the applicant’s representative (if any);

(c)the name and address of the pension scheme;

(d)if no representative is named under sub-paragraph (b), the applicant’s address for service in the United Kingdom (if different from the address notified under sub-paragraph (a));

(e)that the notice is a reference notice; and

(f)the issues concerning the determination notice (standard procedure) or final notice (special procedure) that the applicant wishes the Tribunal to consider.

(3) In paragraph (2)(a) and (c), “address” in respect of a corporation means the address of the registered or principal office.

(4) Where the applicant was given a determination notice (standard procedure) or final notice (special procedure) by the Regulator, a copy shall be filed with the reference notice.

(5) The applicant may include an application for directions with the reference notice.

(6) Where the time limit for making a reference under section 103(1) or Article 97(1) has expired, the applicant shall include with the reference notice an application for a direction to extend the time limit for making a reference, which shall include a statement of the reasons for the delay.

(7) At the same time as he files the reference notice, the applicant shall send a copy of that notice (and of any application in accordance with paragraphs (5) and (6)) to the Regulator.

(8) Where an application is made under paragraph (5) or (6), the Secretary shall refer the application to the Tribunal for determination and he shall take no further action in relation to the reference notice until the application has been determined.

(9) Subject to paragraph (8) and to any directions given by the Tribunal, upon receiving a reference notice the Secretary shall—

(a)enter particulars of the reference in the register; and

(b)inform the parties in writing of—

(i)the fact that the reference has been received;

(ii)the date when the Tribunal received the notice; and

(iii)the Tribunal’s decision on any application made for directions (and include a copy of any direction given),

and the Secretary when sending the parties this information shall specify the date on which he is sending it.

Regulator’s statement of case

5.—(1) The Regulator shall file a written statement (“a statement of case”) in support of the Regulator’s determination so that it is received by the Tribunal no later than 28 days after the day on which the Regulator received the information sent by the Secretary in accordance with rule 4(9)(b).

(2) The statement of case shall—

(a)specify the statutory provisions providing for the Regulator’s determination;

(b)specify the reasons for the Regulator’s determination;

(c)set out all the matters and facts relied upon to support the Regulator’s determination; and

(d)specify the date on which the statement of case is filed.

(3) The statement of case shall be accompanied by—

(a)a list of—

(i)the documents relied upon in support of the Regulator’s determination; and

(ii)the further material which in the opinion of the Regulator might undermine the decision to take that action; and

(b)a copy of the determination notice (standard procedure) or final notice (special procedure) if not filed by the applicant under rule 4(4).

(4) At the same time as it files the statement of case, the Regulator shall send to the applicant a copy of the statement of case and a copy of the list referred to in paragraph (3)(a).

(5) If at any time the Regulator amends the statement of case, it shall file the amendments and at the same time send a copy to the applicant.

(6) The Regulator may include an application for directions with the statement of case.

Applicant’s reply

6.—(1) The applicant shall file a written reply so that it is received by the Tribunal no later than 28 days after—

(a)the date on which the applicant received a copy of the statement of case; or

(b)if the Regulator amends its statement of case, the date on which the applicant received a copy of the amended statement of case.

(2) The reply shall—

(a)state the grounds on which the applicant relies in the reference;

(b)identify all matters contained in the statement of case which are disputed by the applicant;

(c)state the applicant’s reasons for disputing them; and

(d)specify the date on which it is filed.

(3) The reply shall be accompanied by a list of all the documents on which the applicant relies in support of his case.

(4) At the same time as he files the reply, the applicant shall send to the Regulator a copy of the reply and of the list referred to in paragraph (3).

Secondary disclosure by the Regulator

7.—(1) Following the filing of the applicant’s reply, if there is any further material which might be reasonably expected to assist the applicant’s case as disclosed by the applicant’s reply and which is not mentioned in the list provided in accordance with rule 5(3)(a), the Regulator shall file a list of such further material.

(2) Any list required to be filed by paragraph (1) shall be filed so that it is received no later than 14 days after the day on which the Regulator received the applicant’s reply.

(3) At the same time as it files any list required by paragraph (1) the Regulator shall send a copy of that list to the applicant.

Exceptions to disclosure

8.—(1) A list provided in accordance with rule 5(3)(a), 6(3) or 7(1) need not include any document in respect of which an application has been or is being made under paragraph (2).

(2) A party may apply to the Tribunal (without giving notice to the other party) for a direction authorising that party not to include a document in the list required by rule 5(3)(a), 6(3) or 7(1) on the ground that disclosure of the document—

(a)would not be in the public interest; or

(b)would not be fair, having regard to—

(i)the likely significance of the document to the applicant in relation to the matter referred to the tribunal; and

(ii)the potential prejudice to the commercial interests of a person other than the applicant which would be caused by disclosure of the document.

(3) For the purpose of deciding an application by a party under paragraph (2), the Tribunal may—

(a)require that the document be produced to the Tribunal together with a statement of the reasons why it should not be included in the list; and

(b)invite the other party to make representations.

(4) If the Tribunal refuses an application under paragraph (2) for a direction authorising a party not to include a document in a list, it shall direct that party—

(a)to revise the list so as to include the document; and

(b)to file a copy of that list as revised and send a copy to the other party.

Provision of copy documents

9.—(1) A party who has filed a list under rule 5(3)(a), 6(3) or 7(1) shall, upon the request of the other party, provide that other party with a copy of any document specified in the list or make any such document available to that party for inspection or copying.

(2) Paragraph (1) does not apply to any document that is a protected item.

Directions

10.—(1) The Tribunal may at any time give directions to enable the parties to prepare for the hearing of the reference, to assist the Tribunal to determine the issues and generally to ensure the just, expeditious and economical determination of the reference.

(2) The Tribunal may give directions on the application of any party or of all the parties or of its own initiative and, where it gives a direction of its own initiative, it may (but need not) give prior notice to the parties of its intention to do so.

(3) Any application for directions shall include the reasons for making that application.

(4) Except where it is made during the pre-hearing review or during the hearing of the reference, an application for directions shall be filed and, unless the application is accompanied by the written consent of all the parties or an application without notice is permitted by these Rules, the party making the application shall at the same time send a copy to the other party.

(5) Where the application for directions was filed and a copy sent to the other party in accordance with paragraph (4)—

(a)any objection to the directions applied for, together with the reasons for the objection, shall be sent to the Tribunal within 14 days of the date on which the copy application was sent; and

(b)at the same time, a copy of the objection and reasons shall be sent to the party who applied for the directions.

(6) Directions may be given orally or in writing and, unless the Tribunal decides otherwise in any particular case, notice of any written direction (or refusal to give a direction) shall be given to the parties.

(7) Directions containing a requirement may specify a time limit for complying with the requirement and shall include a statement of the possible consequences of a party’s failure to comply with the requirement.

(8) A person to whom a direction is given under these Rules may apply to the Tribunal showing good cause why it should be varied or set aside, but the Tribunal shall not grant such an application without first notifying any person who applied for the direction and giving that party an opportunity to make representations.

Pre-hearing review

11.—(1) The following paragraphs of this rule shall apply if the Chairman directs that it is appropriate to hold a pre-hearing review.

(2) The Secretary shall give the parties not less than 14 days' notice of the time and place of the pre-hearing review.

(3) At the pre-hearing review, which shall be held before the Chairman—

(a)the Chairman shall give all directions appearing necessary or desirable for securing the just, expeditious and economical conduct of the reference; and

(b)the Chairman shall endeavour to secure that the parties make all admissions and agreements as they ought reasonably to have made in relation to the proceedings.

(4) In this rule, “pre-hearing review” means a review of the reference that may be held at any time before the hearing of the reference.

Particular types of direction

12.  Directions given by the Tribunal may in particular—

(a)permit the applicant to make a reference after the expiry of the time limit under section 103(1) or Article 97(1);

(b)fix the time and place of any hearing and alter any time and place so fixed;

(c)provide for an oral hearing, upon such notice as the Tribunal may determine, in connection with any matter arising under the reference;

(d)adjourn any oral hearing;

(e)vary (whether by extending or shortening) any time limit for anything to be done under these Rules;

(f)permit or require any party to provide further information or supplementary statements or to amend a response document or a supplementary statement;

(g)require any party to file any document—

(i)that is in the custody or under the control of that party;

(ii)that the Tribunal considers is or may be relevant to the determination of the reference; and

(iii)that has neither been exempted from disclosure by direction given pursuant to rule 8(2) nor been made available pursuant to rule 9(1),

and may also require that any such document directed for filing as above shall be copied to the other party or else be made available to that other party for inspection and copying;

(h)require any party to provide a statement of relevant issues and facts, identifying those which are, and are not, agreed by the other party;

(i)require any party to file documents for any hearing under these Rules or to agree with the other party the documents to be filed;

(j)require any party to file—

(i)a list of the witnesses whom the party wishes to call to give evidence at the hearing of the reference; and

(ii)statements of the evidence which those witnesses intend to give, if called;

(k)make provision as to any expert witnesses to be called including the number of such witnesses and the evidence to be given by them;

(l)provide for the appointment of any expert under paragraph 7(4) of Schedule 4 and for that expert to send the parties copies of any report that he produces;

(m)provide for the manner in which any evidence may be given;

(n)provide for the use of languages in addition to English, including provision—

(i)as to the venue of any hearing under these Rules so as to ensure the availability of simultaneous interpretation facilities; and

(ii)for the translation of any document;

(o)require that the register shall include no particulars about the reference; and

(p)where two or more reference notices have been filed—

(i)in respect of the same matter;

(ii)in respect of separate interests in the same subject in dispute; or

(iii)which involve the same issues,

provide that the references or any particular issue or matter raised in the references be consolidated or heard together.

Application for permission to make a late reference

13.  Where the applicant has made an application under rule 4(6) to the Tribunal for a direction under rule 12(a) to allow a reference to be made after the time limit for doing so has expired, the Tribunal shall consider whether—

(a)the determination notice (standard procedure) or final notice (special procedure) was such as to notify the applicant properly and effectively of the Regulator’s determination; and

(b)the existence of the right to make the reference and the time limit had been notified to the applicant, whether in the determination notice (standard procedure) or final notice (special procedure) or otherwise,

and in any case shall not allow the reference to proceed unless it considers that it is in the interests of justice to do so.

Directions fixing the time and place of a hearing

14.  Before making a direction under rule 12(b) to fix the time and place of a hearing, the Tribunal shall consider—

(a)whether the reference should be dealt with as a matter of urgency, in particular considering whether the Regulator has already exercised a regulatory function under the 2004 Act or the 2005 Order, or whether that function may not be exercised until the reference has been finally disposed of; and

(b)the convenience of the applicant to the reference in attending or being able to attend a hearing which is to be heard as a matter of urgency at short notice.

Directions varying time limits

15.—(1) The Tribunal shall not make a direction under rule 12(e) to vary any time limit imposed by virtue of these Rules or by virtue of a previous direction of the Tribunal, whether on the application of any party or of all the parties or of its own initiative, unless it is satisfied that it is in the interests of justice to do so.

(2) Before making a direction to vary any time limit, the Tribunal shall consider whether the reference should be dealt with as a matter of urgency, in particular considering whether the Regulator has already exercised a regulatory function under the 2004 Act or the 2005 Order, or whether that function may not be exercised until the reference has been finally disposed of.

(3) The Tribunal may direct that a time limit be extended by 14 days or less without first considering whether any party objects to the direction, but any such objection shall be taken into account on any subsequent application to extend a time limit.

(4) The Tribunal may direct that a time limit be extended whether or not that time limit has already expired.

(5) A time limit which has previously been extended may from time to time be further extended by directions of the Tribunal, whether or not that or any subsequent such time limit has already expired.

(6) Where a party files a response document or list later than any time limit imposed by or extended under these Rules but without applying for a direction under rule 12(e) extending the time limit, that party shall be treated as applying for such a direction.

(7) If a response document or list is not filed in accordance with the time limit imposed by or extended under these Rules, the Tribunal may of its own initiative direct that the document or list be filed by a specified date.

Further matters regarding specific directions

16.—(1) If the Tribunal gives a direction under rule 12(f) to permit or require a party to provide a supplementary statement or to amend a response document or supplementary statement, the direction may require that party to file any such statement or amendment and send a copy to the other party.

(2) The Tribunal shall not give a direction under rule 12(g) or 12(i) in relation to the disclosure of any document to the extent that the Tribunal is satisfied that—

(a)it is a protected item; or

(b)should not otherwise be disclosed,

and, for the purpose of determining whether such a direction should be given in respect of any such document, the Tribunal may—

(i)require that the document be produced to the Tribunal;

(ii)hear the application in the absence of any party; and

(iii)invite any party to make representations.

(3) In the case of an application for a direction under rule 12(o) that the register should include no particulars about the reference, the Tribunal may give such a direction if it is satisfied that this is necessary, having regard to—

(a)the interests of morals, public order, national security or the protection of the private lives of the parties; or

(b)any unfairness to the applicant or prejudice to the interests of consumers that might result from the register including particulars about the reference.

Filing of subsequent notices in relation to the Regulator’s determination

17.  Where, after the filing of a reference notice, the Regulator gives the applicant any notice under the 2004 Act or the 2005 Order in relation to the Regulator’s determination, the Regulator shall without delay file a copy of that notice.

Summoning of witnesses

18.—(1) Any party may apply to the Tribunal for a summons to require any person to—

(a)attend, at such time and place as is specified in the summons, to give evidence as a witness;

(b)file, within the time specified in the summons, any document in his custody or under his control which the Tribunal considers it necessary to examine; or

(c)both attend and file in accordance with sub-paragraphs (a) and (b) above.

(2) Any summons issued under paragraph (1) above shall—

(a)state the name and address of, or otherwise describe, the person to be served; and

(b)be signed by the Chairman of the Tribunal issuing it,

and it shall be the responsibility of the party who made the application under paragraph (1) to serve the summons.

(3) No person may be required under this rule to file a document to the extent that the Tribunal is satisfied that—

(a)it is a protected item; or

(b)it should not otherwise be disclosed,

and, for the purpose of satisfying itself in respect of any such document, the Tribunal may—

(i)require that the document be produced to the Tribunal;

(ii)conduct any hearing in the absence of any party; and

(iii)invite any party to make representations.

(4) A witness summons shall be sent so as to be received by the person to whom it is addressed not less than seven days before the time specified in the summons.

(5) Every summons under paragraph (1) shall contain a statement warning of the effect of paragraph 11(3) to (6) of Schedule 4 (offences connected to summonses).

(6) No person shall be required, in obedience to a summons under paragraph (1), to travel more than 16 kilometres from his place of residence unless the necessary expenses of his attendance are paid or tendered to him in advance, and when the summons is issued at the request of a party, those expenses shall be paid by that party.

(7) The Tribunal may, upon the application of the person to whom the witness summons is addressed, direct that the witness summons be set aside or varied.

Preliminary hearing

19.—(1) The Tribunal may direct that any question of fact or law which appears to be in issue in relation to the reference be determined at a preliminary hearing.

(2) If, in the opinion of the Tribunal, the determination of that question substantially disposes of the reference, the Tribunal may treat the preliminary hearing as the hearing of the reference and may make such order by way of disposing of the reference as it thinks fit.

(3) If the parties so agree in writing, the Tribunal may determine the question without an oral hearing, but, in any such case, the Tribunal may not at the same time dispose of the reference unless the parties have agreed in writing that it may do so.

Withdrawal of reference and unopposed references

20.—(1) The applicant may withdraw the reference—

(a)at any time before the hearing of the reference, without permission, by filing a notice in writing to that effect; or

(b)at the hearing of the reference, with the Tribunal’s permission,

and the Tribunal may determine any reference that is so withdrawn.

(2) The Regulator may state that it does not oppose the reference or that it is withdrawing its opposition to it—

(a)at any time before the hearing of the reference, without permission, by filing a notice to that effect; or

(b)at the hearing of the reference, with the Tribunal’s permission.

(3) In any case where—

(a)the Regulator files a notice in accordance with paragraph (2)(a);

(b)the Regulator does not file a statement of case within the time limit imposed by rule 5(1) (or any such time limit as varied under rule 12(e)); or

(c)the applicant does not file a reply within any time limit imposed by rule 6(1) (or any such time limit as varied under rule 12(e)),

the Tribunal may (subject to its power to give a direction pursuant to rule 15(7)) determine the reference without an oral hearing in accordance with rule 21, but it shall not dismiss a reference without notifying the applicant that it is minded to do so and giving him an opportunity to make representations.

(4) When determining proceedings pursuant to paragraph (1) or (3), the Tribunal may make a costs order under rule 26.

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