Upper Tribunal (Administrative Appeals Chamber)

Case No: CSCS/493/09
[2009] UKUT 285 (AAC)
MR v CMEC

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DETERMINATION OF THE UPPER TRIBUNAL JUDGES

In response to a reference by the First-tier Tribunal (Social Entitlement Chamber) dated 2 October 2009, the Upper Tribunal makes the following order under section 25 of the Tribunals Courts and Enforcement Act 2007.

1. The second respondent is ordered and required to produce to the Upper Tribunal within 28 days of the issue of this determination the following documents, viz; all bank statements from the period between 1 June 2007 – 31 December 2007 relating to his (1) business current account trading as Dabhand Gardens (2) his personal joint current account held in his name and that of his wife and (3) any other bank accounts held by him, insofar as not already produced by him

2. He is also ordered and required to produce to the Upper Tribunal within 28 days of the issue of this determination the following documents, viz; all his credit card statements relating to the period between 1 June 2007 – 31 December 2007, insofar as not already produced by him. 

3. He is also ordered and required, if he does not wish the contents of any of the above documents to be disclosed to the appellant and/or the first respondent to state in writing to which of the above documents that view applies and why he does not wish such disclosure to be made.  Any written statement by the second respondent in response to this part of this order should be attached to the above documents on their production.

4. He is further ordered and required, if he asserts that he cannot comply in whole or in part with any of the terms of this order to make that assertion in writing explaining why he considers that he cannot so comply, again within 28 days of the issue of this determination. 

REASONS FOR DETERMINATION

1.         On 2 October 2009, a tribunal judge of the First-tier Tribunal (Social Entitlement Chamber) made a reference to the Upper Tribunal under rule 7 (3) (e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, document 117A relating to the failure of the second respondent (the non-resident parent) to produce the documents specified in a direction made by her on 29 July 2009, documents 116-117 (erroneously referred to in the reference as documents 184-185). Those documents comprised all of the second respondent’s bank statements covering the period 1 June 2007 – 31 December 2007 inclusive and all his credit card statements covering the same period.  An identical reference was also made on the same day in CSCS/492/2009, a case involving the same parties which had been conjoined with this one in proceedings before the First-tier Tribunal. 

2.                 Because of the novelty of these references and since they involved important points of principle and practice, an oral hearing to determine them was convened on 2 December 2009 before a panel of three judges of the Upper Tribunal.  The appellant (the parent with care) and the second respondent were both present but unrepresented.  The first respondent (the Child Maintenance and Enforcement Commission) was represented by Mr Simon Collins, Advocate, instructed by the Office of the Solicitor to the Advocate General for Scotland. 

3.                 The issue in this case is conveniently summarised in paragraph 4 of document 125, part of the written submission of the first respondent to the Upper Tribunal.  It relates to the application made on 30 October 2007 by the appellant for a departure direction based upon the second respondent’s lifestyle being inconsistent with his declared income.  On 26 June 2008, a decision-maker responded to that application by refusing to make a departure direction.  The appellant appealed against that decision on 10 July 2008.

4.                 On 24 March 2009, a District Tribunal Judge issued detailed directions to the second respondent relating to the appeal, documents 104-105.  After indications had been received from the second respondent that he did not intend to carry out those directions, that judge barred him from taking further part in the proceedings under the relevant provisions of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008.  Thereafter, the case, after an earlier postponement, was listed for hearing on 28 July 2009.  It was adjourned on that occasion, document 113.  On that date, the District Tribunal Judge who presided at the hearing issued further directions, documents 114-115.  These were replaced by a substitute set of directions made by her on the following day, 29 July 2009, documents 116-117.  In them she lifted the bar on the second respondent taking part in the proceedings.  She also made specific directions on document 116 for the second respondent to produce copies of all his bank statements covering the period 1 June 2007 – 31 December 2007 inclusive along with copies of all his credit card statements covering the same period.  On 11 August 2009, the second respondent’s solicitors responded to those directions.  Their letter is reproduced as document 186 on linked file CSCS/492/09.  In it they objected to what they asserted to be confidential documentation and, in particular, joint bank account statements being made available to the appellant by means of their production to the tribunal.  The tribunal judge responded to that letter by issuing further directions on 25 August 2009, documents 187-188 on file CSCS/492/09.  In them she essentially gave the second respondent the opportunity to ask the tribunal, upon production of the relevant documents, to apply rule 14 of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008 to them. 

5.                 No response was received from the second respondent to the directions of 25 August 2009 although they allowed him a further 21 days for compliance.  In these circumstances, the First-tier Tribunal judge who had issued the directions of 29 July 2009 and 25 August 2009 made the reference of 2 October 2009 which is before us.  We note for the sake of completeness that in that reference the directions of 25 August 2009 are described, presumably by a typing error, as having been given on 28 August 2009. 

6.                 The power of the First-tier Tribunal (Social Entitlement Chamber) to order production of documents is contained in rule 16 (1) (b) of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008, which provides as follows:

“On the application of a party or on its own initiative the tribunal may – (b) order any person to answer any questions or produce any documents in that persons possession or control which relate to any issue in the proceedings.”

Mr Collins, correctly in our judgement, accepted that the directions notice dated 29 July 2009 was made under rule 16 (1) (b) although it does not in terms say so. 

7.                 As narrated in paragraph 1 above, the reference before us was made under rule 7 (3) (e) of the above rules.  That provision states “the tribunal may refer to the Upper Tribunal and ask the Upper Tribunal to exercise its powers under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the tribunal – (e) to produce a document.”  Thus rule 7 (3) can only be invoked if someone has failed to comply with a requirement imposed upon them by the First-Tier Tribunal under rule 16 as has happened in this case. 

8.                 We should observe the case management powers of the First-tier Tribunal (Social Entitlement Chamber) are set out in rule 5 of the above rules.  This gives power to the tribunal inter alia in terms of rule 5 (3) (d) “to permit or require a party or another person to provide documents, information, evidence or submissions to the tribunal or a party.”  Since rule 5 (3) (d) refers to the provision of documents and rule 16 refers to the production of documents and it is the production of documents which can be the subject of a reference to the Upper Tribunal in terms of rule 7 (3), there must be significance in the choice of the word “produce” in rule 16.  We consider that rule 5 is, as stated, concerned with case management powers and in particular with the provision of documents, information, evidence or submissions in order to allow the tribunal to regulate its procedure.  By contrast, the powers to order production of documents, contained in rule 16, are concerned with the scope of the evidence which can be before the tribunal in order to decide the issues before it.   That is why, in our view, the failure to produce documents upon being ordered to do so under the provisions of rule 16 can result in a reference to the Upper Tribunal asking it to exercise its powers under section 25 of the 2007 Act.   If those powers are exercised so as to order production of a document and the haver of that document does not comply with such an order, he may face proceedings for contempt of court.

9.                 It is in recognition of the potentially serious nature of the making of an order under rule 16 that rule 16 (4) requires any such order to state that the person on whom it is imposed may apply to the tribunal to vary or set aside that order, if they have not had an opportunity to object to it and to state the consequences of failure to comply with the order.  In our view, documents 116-117 fully comply with these provisions.  Firstly, there appears as a docquet at the foot of document 117 the following statement “a party is entitled to challenge any direction given by applying for another direction which amends, suspends or sets aside the first direction.”  Secondly, document 116 explicitly warns the second respondent that the First-tier Tribunal had it in mind to refer him to the Upper Tribunal asking them to exercise their powers under section 25 of the 2007 Act.  We consider that the directions given on those documents were valid and that the direction notice of 29 July 2009 was a sound foundation for the reference made to the Upper Tribunal on 2 October 2009. 

10.             The reference before us thus validly asks us to use our powers under section 25 of the Tribunals Courts and Enforcement Act 2007.  Section 25 (1) (b) read along with sub-section (2) (b) confers on the Upper Tribunal “in Scotland, the same powers, rights, privileges and authority as the Court of Session” in relation to “the production and inspection of documents.”  Rule 7(3)-(4) of the Upper Tribunal Rules 2008 specifically enable us to exercise those powers in a case like the present as if the requirement to produce documents imposed by the first tier tribunal had been imposed by the Upper Tribunal. 

11.             The Court of Session “has inherent power to compel the parties to a cause to produce documents which may have a bearing on the issue between them”, per Lord Justice-Clerk Thomson in Young v National Coal Board 1957 S.C.99 at p.105.  Section 25 of the 2007 Act confers that power upon us.  We can order production of documents in the circumstances where the Court of Session can do so i.e. if those documents are relevant to the issues between the parties in any given case.  Mr Collins submitted that the documents referred to in paragraph 1 above were highly relevant to the issues arising in this particular case as it related to an application for a departure on the ground of the second respondent’s lifestyle being inconsistent with his declared income and also given the date of that application. That position was strongly supported by the appellant.  The second respondent did not explicitly disagree with it.   We accept Mr Collins’ submission. 

12.             Immediately prior to the oral hearing, the second respondent had lodged documents 159-167.  These include document 160, a credit card statement dated 11 November 2007 and documents 161-163, current account statements for the second respondent “trading as Dab Hand Gardens” for May, June and July 2007.  Clearly the documents just referred to represent partial compliance with the requirement to produce documents imposed upon the second respondent by the First-tier Tribunal’s directions of 29 July 2007.  When asked why he had not made a complete production of those documents, the second respondent advanced various arguments.  These were that in the relevant period his credit card was not being actively used and more significantly that he was still declining to produce statements from his joint current account with his wife lest they should be disclosed to the appellant.  He emphasised that his wife was unwilling to have such bank statements produced.  In answer to a question from us, the second respondent however stated that he probably could produce the current account bank statements relating to his business account for the whole of the relevant period.

13.             In the above circumstances, given the clear relevance of the credit card statements and the bank statements to the issues arising in this case, we make the orders contained in our determination.  In those orders, we require the second respondent to produce all of the documents which, in our view, were encompassed in the directions of 29 July 2009 which were referred to in the reference of 2 October 2009.  In regard to the bank accounts, we are satisfied that both the business bank accounts and the joint personal bank accounts were encompassed in those directions.  We reach that conclusion on the basis of the following information i.e. the documents produced by the second respondent and the references to the joint personal bank accounts both in his solicitor’s letter of 11 August 2009 and in his oral statements at the hearing.  Indeed, all bank statements held by the second respondent were included in the terms of those directions.  For the reasons given in paragraph 14 of CSCS/491/09, we do not consider that we are empowered to substitute a different requirement in relation to the production of documents from that imposed by the First-tier Tribunal.  Thus in our determination we are simply spelling out what the requirement imposed by the First-tier Tribunal actually entails for the second respondent.  Given that rule 14 and indeed rule 16 (3) of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008 have not yet been applied in this case because of the second respondent’s failure to produce any of the relevant documents at all, until immediately before the oral hearing, we have, in fairness to him included in our determination an opportunity for him to seek application of these rules to the documents which he is required to produce upon his production of them. 

14.             It may be that the second respondent has confused two issues which ought to be kept wholly separate.  The first is whether this Tribunal should make the order to produce the documents. We have given our reasons for making such an order as set out above.  Our order requires the second respondent to produce all the documents described therein.  Failure to comply may render the second respondent liable to proceedings for contempt of court.   The second and quite separate matter is what is to happen to the documents produced.  Upon being produced to the Upper Tribunal they will be transmitted to the First-tier Tribunal.   If the second respondent has concerns regarding the disclosure of the documents to any other party he can raise those concerns by following the procedure set out in paragraph C of the determination.  It will then be for the First-tier Tribunal under Rule 14(3) of the First-tier Tribunal rules to decide what documents or parts thereof will be distributed to any or all of the parties to this appeal.

15.             The second respondent should be well aware from the contents of the written submission lodged on behalf of the first respondent at the oral hearing and also from the discussion at that hearing of the serious consequences for him if he chooses wilfully to disregard or fail to carry out our orders.  Such conduct could lead to him being found in contempt of court which, in turn, could lead to the imposition upon him of penalties by way of fine or imprisonment.  In deciding upon his attitude to our orders, the second respondent should have these matters very much in mind.  He should have regard to what we say in paragraph 14 and in the event that he asserts that he is unable to produce any of the documents required he must provide the information set out in paragraph D of the determination.  Any such information will be pertinent in our consideration as to further procedure in relation to contempt.

(Signed)

DJ MAY QC                         

Judge of the Upper Tribunal

Date: 10 December 2009

(Signed)

AJ GAMBLE

Judge of the Upper Tribunal

Date: 10 December 2009       

(Signed)

DS BURNS QC

Deputy Judge of the Upper Tribunal 

Date: 10 December 2009