My client asked for leave to appeal and leave was refused by the commissioner. I don't have a lot of experience of appealing to the commissioners (only had about 4 cases in 10 years!).

I suspect that the client, in the application for leave, only said why she thought the decision was wrong (i.e. on the facts of the case) rather than how the tribunal erred.

Can the client, now she has advice about what constitutes grounds for appeal, renew - or make a fresh - application for leave? The OSSCSC has said that client can only make an application for JR against the refusal to leave, but I suspect this will be fruitless because if she has indeed only addressed the facts of the case then there will be no JR grounds.

The commissioner's procedures regulations don't say anything about what happens when leave is refused, or how many applications for leave can be made, so IMHO I think she probably can make a further application, although she will have to establish special reasons for lateness.

All opinions welcome, thanks.

Hi Tony

What date was leave to appeal refused?

It was on 13th February. Since then the client wrote again and the Commissioner rightly said there was no appeal against a refusal for leave, but he did consider if there were set-aside grounds - and found that there weren't.

I've looked through this decision and the client's stated grounds and I don't believe that there are JR grounds. PLP have given an opinion to the same effect.

So the only question is can the client submit a new application for leave with properly reasoned grounds? The tribunal was held in July 2005.

Thanks, Nevip.

Tony

Have you looked at reg 9 of the Commissioners Procedure Regs. Para(3) is very badly worded. It appears to me to allow for a late application to the commissioner for leave to appeal, subject to para 1 (an application has first been made to the district chairman and been refused). But there would need to be special reasons under reg 58(5) of the D&A Regs. What do you think?

Regards
Paul

I have considered this Paul, but the question is can we make a fresh application for leave, even where one has already been made and decided? I'm aware that the application will be 'late', and that brings in a paradox... How can one make a late application, when they have already made a previous one...? Surely that would blow away any special reasons for lateness? Is there any discretionary way in which a commissioner will informally reconsider an application for leave?

Tony

Tony

The previous application was made to the district chair of TAS. Leave to appeal to the commissioner was refused. The application cannot be renewed to the district chair. JR is the only remedy (presuming no ground for set aside).

After leave to appeal has been refused by the district chair a person may then apply for leave to appeal direct to the commissioner. That has not been done. The time limit has now passed, therefore a person may make a late application for leave to apeal direct to the commissioner.

If the coommissioner refuses leave to appeal then JR is the only remedy. A person who applies direct to the commissioner may rely on new grounds than those relied on when applying to the district chair. Late application for leave to appeal direct to the commissioner is now your client's only option.

Regards
Paul

Thanks Paul. The application was to the commissioner and was refused by the same (sorry, I should have made that clear). I guess that means we're out of options... What about any discretionary ability for a commissioner to reconsider an a decision he's already given on an application for leave? Do you think there's any mileage in that?

Cheers.

I can't quote any legal basis for this, but I think there might be mileage in asking for a reconsideration. A few years ago I remember applying for leave and being refused, with brief reasons being given that made me think the Commissioner had misunderstood our argument. I wrote asking them to look at it again, and got back a ruling that still refused leave, but for different reasons, and my impression was that it had definitely been looked at again.

There doesn't seem to be any explicit power for the Commissioners to reconsider refusals of leave, but equally I can't see anything saying that they can't. I would therefore suggest that you have nothing to lose by asking. I think if you try the late appeal route you'll have real problems showing special reasons.

Thanks Keith and Paul for your help. Much appreciated.

Tony