Utility Appeals (Rules of Procedure) Order, 2002 (G.S.I. No. 2 of 2002)

1. In proceedings before the Tribunal, a party may be represented by any person allowed by the Tribunal to appear on his behalf. a Ordinance No. XXXIII of 2001. Commencing an appeal and summons Manner of commencing appeal.

2. (1) An appeal to the Tribunal under section 15 of the Law shall be instituted by summons served on the Director General in accordance with that section. (2) A summons shall state - (a) the name and address of the applicant; (b) the name and address of the applicant's Advocate or representative, if appropriate; and (c) an address for service in Guernsey, and shall be signed and dated by the applicant or his Advocate or representative. (3) A summons shall contain - (a) a brief statement of the facts and evidence which will be adduced in support of those facts; (b) a statement of which of those grounds set out in section 15(3) of the Law the appeal is based upon; (c) where practicable, a skeleton argument supporting the grounds for contesting the decision which - (i) summarises the submissions which will be made; (ii) cites any authorities which will be relied upon; and (iii) identifies any passages in any such authorities which the applicant claims to be particularly supportive of his appeal; (d) a list of the witnesses the applicant intends to call to give evidence at any hearing; (e) the relief sought by the applicant, and any directions sought pursuant to article 11 (directions); and (f) a schedule listing all documents annexed to the summons. (4) There shall be annexed to a summons - (a) a copy of the disputed decision; and (b) as far as practicable, a copy of every document on which the applicant relies including the written statements of all witnesses of fact, or expert witness, if any. (5) The signed original of a summons (and its annexes) must be accompanied by four copies certified by the applicant or his legal representative as conforming to the original. (6) If the applicant wishes to request confidential treatment for any part of his appeal, or the annexes to a summons, he must indicate in the summons the relevant passages or documents, together with the reasons, and, if so directed by the presiding chairman, supply a non-confidential version of the summons. Publication of Notice of Summons.

3. (1) Upon receipt of a summons the presiding chairman shall, subject to any directions or order of the Tribunal pursuant to article 4 (striking out), as soon as practicable publish a notice in La Gazette Officielle and in any other manner as he may think fit. (2) A notice under paragraph (1) - (a) shall state - (i) that a summons has been received; (ii) the xame of the applicant; (iii) the disputed decision to which the summons relates and the person by whoin it was made; and (iv) that any person who considers that he has sufficient interest may apply to intervene in the proceedings, in accordance with article 8 (addition of parties), within 30 days of publication of the notice; and (b) may include such particulars, further or in addition to those required under paragraph (a), as the presiding chairman may think fit. Power to strike out summons.

4. (1) The Tribunal may, after hearing the parties, strike out the whole or any part of a summons at any stage in the proceedings if - (a) it considers that the summons or any part of the summons discloses no valid ground for appeal; or (b) it is satisfied that the applicant has instituted the appeal proceedings vexatiously and without any reasonable grounds; (c) the summons or any part of the summons does not comply with article 2 (manner of commencing appeal) in a substantial respect, and the applicant has not remedied the defect within such period as the Tribunal may specify; or (d) the applicant fails to comply with a direction of the Tribunal. (2) Where the Tribunal strikes out a summons or any part of a summons it may make any consequential order it considers appropriate. Amendment of a summons.

5. (1) An applicant may not amend a summons save with the permission of the Tribunal. (2) The Tribunal shall not grant permission to amend a summons in order to add a new ground for contesting the decision unless - (a) such ground is based on matters of law or fact which have come to light since the appeal was instituted; (b) it was not practicable to include that ground in the summons: or (c) the circumstances are exceptional. (3) Where the Tribunal grants permission under paragraph (2) it may do so on such terms as it thinks fit and shall give such further or consequential directions as may be necessary. Withdrawal of a summons.

6. (1) An applicant may only withdraw a summons - (a) with the permission of the Tribunal; or (b) if the appeal has not yet proceeded to a hearing, with the permission of the presiding chairman. (2) Where the Tribunal, or the presiding chairman, gives permission under paragraph (1) it may - (a) do so on such terms as it thinks fit; and (b) publish notice of the withdrawal in such manner as it thinks fit. (3) Where a summons is withdrawn - (a) any interim order made by the Tribunal, other than an order made in respect of costs, shall immediately cease to have effect: and (b) a fresh application may not be brought by the applicant in relation to the decision which was the subject of the summons withdrawn. Response and addition of other parties Response.

7. (1) The Director General shall send to the Tribunal a response in the form required by this article so that the response is received within 42 days, or such further time as the Tribunal may allow, of the date on which the Director General was served with a summons instituting an appeal in accordance with section 15 of the Law and article 2 (manner of commencing appeal). (2) A response shall state - (a) the name and address of the Director General's Advocate, if appropriate; and (b) an address for service in Guernsey, and shall be signed and dated by the Director General, or on his behalf by his duly authorised officer or his Advocate. (3) A response shall contain - (a) a brief statement addressing the issues raised in the summons, including the arguments of fact and law upon which the Director General will rely in opposing the grounds upon which the appeal is stated to he based; (b) where appropriate, a skeleton argument which - (i) summarises the submissions which will be made; (ii) cites any authorities which will be relied upon; and (iii) identifies any passages in any such authorities which the Director General claims to be particularly supportive of his submissions; (c) any relief sought by the Director General and any directions sought pursuant to article 11 (directions); and (d) a schedule listing all the documents annexed to the response. (4) There shall be annexed to a response a copy of every document upon which the Director General relies including the written statements of all witnesses of fact, and where practicable expert witnesses, if any. (5) A signed original of a response (and its annexes) must be accompanied by four copies certified by the Director General or on his behalf by his duly authorised officer or his Advocates as conforming to the original. (6) On receiving a response, the secretary to the Tribunal shall send a copy to the applicant. Addition of parties to the proceedings.

8. (1) Any person who considers he has sufficient interest in the outcome of any appeal proceedings may make a request to the Tribunal, in the form required by this article, for permission to intervene (in this article referred to as "a request"). (2) A request must be sent to the Chairman within 30 days of the date upon which the notice in respect of the relevant proceedings is published in accordance with article 3 (publication of notice). (3) The presiding chairman shall give notice of a request to all parties to the proceedings and invite their observations on the request within such period of time as is specified in the notice. (4) A request shall state - (a) the title of the proceedings to which the request relates; (b) the name and address of the person wishing to intervene: (c) the name and address of his Advocate, if appropriate; and (d) an address for service in Guernsey. (5) A request shall contain- (a) a concise statement of the matters in issue in the proceedings which affect the person making the request; (b) the name of any party whose position the person making the request intends to support; and (c) a succinct presentation of the reasons for making the request. (6) If the Tribunal is satisfied, having taken into account the observations of the parties, that the person wishing to intervene has a sufficient interest, it may permit the intervention on such terms and conditions as it thinks fit. (7) On granting permission in accordance with paragraph (6), the Tribunal shall give all such consequential directions as it considers necessary with regard, in particular to - (a) the service on the intervener of documents lodged with the presiding chairman; (b) the submission by the intervener of a statement of intervention; and (c) if appropriate, the submission by the principal parties of a response to the statement of intervention. (8) In making any order under this article, section 7 of the Law shall apply to the Tribunal as it applies to the Director General. (9) A statement of intervention shall contain- (a) a succinct presentation of the facts and arguments supporting the intervention; (b) the relief sought by the intervener; and (c) a schedule listing all documents annexed to the intervention which, as far as possible, shall have annexed a copy of every document on which the intervener relies including the written statement of any witness as to fact or expert witness. Powers to strike out, withdraw or amend response and statement of intervention.

9. (1) The Tribunal may, after hearing the parties, strike out the whole or any part of a response or statement of intervention at any stage in the proceedings if - (a) it considers that the response or statement or any part thereof discloses no valid submission or material issue; (b) in the case of a statement, the Tribunal is satisfied that the intervention has been made vexatiously and without any reasonable grounds; (c) the response or statement or any part thereof does not (i) in the case of a response, comply with article 7 (response); or (ii) in the case of a statement, comply with article 8 (addition of parties), in a substantial respect, and the applicant has not remedied the defect within such period as the Tribunal mzy specify; or (d) the Director General or the intervener fails to comply with a direction of the Tribunal. (2) The Director General may not amend a response and an intervener may not amend a statement of intervention save with the permission of the Tribunal. (3) The Director General may only withdraw a response and an intervener may only withdraw a statement of intervention - (a) with the permission of the Tribunal; or (b) if the appeal has not yet proceeded to a hearing, with the permission of the presiding chairman. (4) Where the Tribunal or the presiding chairman- (a) strikes out the whole or any part of a response or a statement of intervention under paragraph (I); (b) gives permission for the amendment of a response or a statement of intervention under paragraph (2); or (c) gives permission for the withdrawal of a response or statement of intervention under paragraph (3), it may do so on such terms and make such consequential or further orders or directions as it considers appropriate or thinks fit. Consolidation of appeals Consolidation of appeals.

10. (1) Where two or more appeals - (a) have been instituted in respect of the same decision; or (b) involve the same or similar issues, the Tribunal may, upon request of a party or of its own motion, order the appeals or any particular issue or matter raised in the appeals to be consolidated or heard together. (2) Before making an order under this article, the Tribunal shall invite the parties to the relevant proceedings to submit their observations on the consolidation of the proceedings. Directions, evidence and witnesses Directions.

11. (1) Subject to paragraph (6), the Tribunal may at any time of its own motion or on the application of any party give such directions as it thinks fit to enable the parties to prepare for the hearing of the appeal or to assist the Tribuca! to determine the issues. (2) Without limiting the generality of the power under paragraph (I), directions under that paragraph may - (a) provide for a particular matter to be dealt with as a preliminary issue and for a pre-hearing review to be @) provide for - (i) the exchange between the parties of lists of such documents as may be held by them, the disclosure of which is necessary for the fair hearing of the appeal; (ii) the inspection by the parties of the documents so listed: (iii) the exchange between the parties of statements of evidence; and (iv) the provision by the parties to the Tribunal of statements or lists of agreed matters; (c) require any party to send to the Tribunal and to the other parties- (i) statements of facts and statements of the evidence which wit1 be adduced, including such statements provided in a modified or edited form; (ii) a skeleton argument which summarises the submissions which will be made and cites the authorities which will be relied upon and identifies any particular passages to be relied upon; (iii) a chronology of events; (iv) any other particulars or supplementary statements which may reasonably be required for the determination of the appeal; (v) any document or other material which the Tribunal may require and which it is in the power of that party to deliver; (vi) an estimate of the time which will be needed for any hearing; and (vii) a list of the witnesses he intends to call to give evidence at any hearing; (d) limit the length of oral submissions and the time allowed for the examination and cross-examination of witnesses; and (e) limit the number of expert witnesses to be heard on either side. (3) The Tribunal may, subject to any specific provisions of this Order, specify time limits for steps to be taken in the proceedings and may extend any time limit. (4) Nothing in this article may require the production of any document or other material which the party could not be compelled to produce on the trial of an action before the Royal Court. (5) It shall be a condition of the supply of any information or material provided under this article that any recipient of that information or material may use it only for the purposes of the appeal. (6) The power to give directions may be exercised in the absence of the parties. (7) Notice of any directions given under this article shall be served on all the parties and the Tribunal may, on the application of any party, set aside or vary such directions. Evidence.

12. (1) The Tribunal may give directions as to- (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the Tribunal. (2) The Tribunal may admit any evidence given for the purposes of the hearing and determination of an appeal notwithstanding any rule of law relating to hearsay or otherwise as to the admissibility of evidence. (3) The Tribunal may require any witness to give evidence on oath or affirmation (or if in writing by way of affidavit) and the secretary to the Tribunal may administer any such oath or affirmation. (4) The Tribunal may allow a witness to give evidence through a video-link or by other means. Summoning of witnesses and documents.

13. (1) The parties may, if authorised to do so by the Tribunal, cause a summons to be served on any person, in the same manner as that in which a summons may be served in a civil action before the Royal Court, summoning that person to attend any hearing of the Tribunal to give evidence or produce any document likely to assist the Tribunal in determining any question before the Tribunal, and a person so summoned shall be under a like obligation as to the giving of evidence or the production of any document as if he were so summoned in respect of such action. (2) The Tribunal may summons any person to appear before it - (a) as a witness; and (b) to produce before it any document, exhibit or other relevant item or mzterial in his possession, c*.~toc!y or power. (3) The Tribunal shall not, pursuant to paragraph (I), authorise any party to cause a summons to be served on any person to give evidence or produce any document if- (a) the evidence to be given by the witness in question would be irrelevant or, as the case may be, (b) the document in question would be irrelevant. Form of witness summons.

14. A witness summons shall be in writing and shall contain the following information- (a) the names of the parties to the appeal proceedings; (b) the place where the appeal proceedings are to be heard: (c) the date upon and the time at which the witness is to appear; (d) the descriptions of any document, exhibit or other relevant item or material or any class thereof which the witness is to produce; and (e) where the witness is summoned to appear on the request of any party to the proceedings, the name of that party. Issue and service of witness summons.

15. A witness summons shall he issued under the hand of the secretary to the Tribunal and shall be served on the witness- (a) by being delivered to him or by being left at, or sent by registered post or recorded delivery service to, his usual or last known place of abode or employment; or (b) in any manner in which a document may be served under Part I of the Royal Court Civil Rules, 1989~. Failure to comply with directions.

16. If any party fails to comply with any direction given in accordance with this Order, the Tribunal may if it considers that the justice of the case so requires, order that such party be debarred from taking any further part in the proceedings without the permission of the Tribunal. Hearings Time and place of hearings.

17. (1) As soon as practicable after an appeal has been instituted, and with due regard to the convenience of the parties, the Tribunal shall appoint a time and place for a hearing of the appeal. (2) The presiding chairman shall send to each party a notice informing him of the time and place of any hearing, which, unless the parties otherwise agree, shall not be earlier than 14 days after the date on which the ~iotice is sent. (3) The Tribunal may - (a) postpone the time appointed for any hearing; Order of the Royal Court No. VII of 1989; 20 (b) adjourn a hearing to such time as the Tribunal may determine; or (c) alter the place appointed for any hearing, and, if it exercises any of the above powers, it sball notify each person previously notified of that hearing under this article, and any person summoned under article 13 (summoning of witnesses) to attend as a witness at that hearing of the revised arrangements. Location of hearings.

18. The Tribunal may hold any meeting, case conference, pre-hearing review or hearing in such place as it thinks fit having regard to the just, expeditious and economical conduct of the proceedings. Procedure at the hearing.

19. (1) The proceedings shall be opened and directed by the presiding chairman who sball be responsible for the proper conduct of the hearing. (2) The Tribunal shall, so far as it appears to it appropriate, seek to avoid formzlity in its proceedifigs and shell conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings. (3) If, after the commencement of any hearing, a member other than the presiding chairman is absent, the appeal may, with the consent of the parties, be heard by the other two members and in the event, the Tribunal shall be deemed to be properly constituted provided that a decision of a Tribunal so constituted must be unanimous. (4) Unless the Tribunal otherwise directs, no witness as to fact or expert shall be heard unless the relevant witness statement or expert report has been submitted in advance of the hearing and in accordance with any directions of the Tribunal. (5) The Tribunal may limit cross-examination of witnesses to any extent or in any manner it deems appropriate, having regard to the just, expeditious and economical conduct of the proceedings. Consent orders.

20. (1) If all parties agree the terms on which to settle all or any part of the proceedings, they may request the Tribunal to make a consent order. (2) A request for a consent order shall be made by sending to the presiding chairman - (a) a draft consent order; (b) a consent order impact statement; and (c) a statement signed by all the parties to the proceedings or their Advocates requesting that an order be made in the form of the draft. (3) A consent order impact statement shall provide an explanation of the draft consent order, including an explanation of the circumstances giving rise to the draft order, the relief to be obtained if the order is made and the anticipated effects on the objectives set out in section 2 of the Law or that relief. (4) If the Tribunal considers that a proposed consent order may have a significant effect on the objectives set out in section 2 of the Law, it shall, as soon as practicable following receipt of the request, cause there to be published a notice in La Gazette Officielle and in such other manner as the Tribunal may determine. (5) A notice under paragraph (4) shall state - (a) that a request for a consent order has been received; (b) the name of each of the parties to the proceedings; (c) the particulars of the relief sought by those parties; (d) that the draft consent order and consent order impact statement may be inspected at such place as may be mentioned in the notice: and (e) that a person wishing to comment upon the request for the consent order may send written comments to the presiding chairman within 14 days (or such other longer period as the notice may specify) of the date upon which a notice is published in accordance with paragraph (4), and shall exclude any information of a confidential nature. (6) Comments supplied in response to a notice published in accordance with paragraph (4) shall be in writing, signed by the commentator and shall state the title of the proceedings to which the comments relate and the name and address of the commentator. (7) The presiding chairman shall send all comments received in accordance with paragraph (6) to all parties to the proceedings and any party to the proceedings may within 14 days (or such other longer period as the presiding chairman may specify) of receipt of the comments send a response to the comments to the presiding chairman. (8) In respect of any request for a consent order the Tribunal may, as it thinks fit, after hearing the parties and considering the comments of third parties - (a) make the order in the terms requested; (b) invite the parties to vary the terms; or (c) refuse to make any order. Miscellaneous Power of presiding chairman to exercise powers of Tribunal.

21. (1) Any act of the Tribunal required or authorised by this Order, excluding acts required or authorised by articles 19 (procedure at the hearing), 20 (consent orders) and 24 (costs) may be done by the presiding chairman acting alone. Irregularities.

22. (1) Any irregularity resulting from failure to comply with any provision of this Order before the Tribunal has reached its decision shall not of itself render the proceedings void. (2) Where any irregularity comes to the attention of the Tribunal, the Tribunal may, and must if it considers any person may have been prejudiced by the irregularity, give such directions as it thinks just to cure or waive the irregularity before reaching its decision. (3) Clerical mistakes in any document recording a direction, order or decision of the presiding chairman or Tribunal, or errors arising in such a document from an accidental slip or omission, may be corrected by the chairman or Tribunal by certificate under the chairman's hand. Determination of appeal.

23. (1) As soon as practicable after the Tribunal has determined an appeal, the presiding chairman shall certify in writing that determination and sign and date the certificate. (2) If and to the extent that it is possible to do so without disclosing information which is confidential within the meaning of section 7 of the Law, the certificate shall include - (a) any material finding of fact; and @) the reasons for the decision. (3) The presiding chairman shall send a copy of the certificate to the parties. (4) The Tribunal shall make arrangements for the publication of its determination but in doing so shall have regard to the desirability of safeguarding commercially sensitive information and for those purposes may make necessary amendments to the text of the certificate. costs Costs which may be awarded by Tribunal.

24. (1) The Tribunal may order that the whole or any part of the costs of a hearing shall be paid by a party to the appeal proceedings in such amount or proportion and on such basis as - (a) appears to the Tribunal to be fair and reasonable; and (b) insofar as may be appropriate in the circumstances, would apply in a civil action before the Royal Court if the applicant, the Director General and any other party added under article 8 (addition of parties) were parties to such an action. (2) An order for costs under paragraph (1) - (a) sha!! be enforceable as a judgment debt by the person in whose favour the order is made; and (b) shall carry interest at the rate for the time being prescribed under section 2 of the Judgments (Interest) (Bailiwick of Guernsey) Law, 1985' from the date of the order until the order is satisfied; and the interest may be recovered by the person in whose favour the order is made as part of the award of costs. Taxation of costs.

25. (1) A party against whom an order for costs is made under article 24(1), may, within a period of 28 days immediately following the date when he or his Advocate receives the opposing party's bill of costs, submit a written request - (a) to the presiding chairman of the Tribunal which dealt with the appeal proceedings; or @) if the presiding chairman is unavailable, to another member of the Tribunal which dealt with the proceedings, for the costs to be taxed. - (2) The presiding chairman or, if he is unavailable, the other member of the Tribunal, may allow further time for the submission of a request under paragraph (1) upon being satisfied that there are exceptional circumstances ~ilakingit just to do so. (3) Taxation under this article is inapplicable in respect of a party's own costs payable to his Advocate. C Ordres en Conseil Vol. XXIX, p. 135; amended by Order of the Royal Court No. I of 1996. (4) Where a written request is submitted under paragraph (I), the provisions of rules 6 to 10 of the Royal Court (Costs and Fees) Rules, 2 0 0 0 ~ (referred to in this paragraph as "the Rules") shall apply to the conduct of a taxation under this article as they apply to the conduct of a taxation of costs in a civil action before the Royal Court as if the applicant, the Director General and any other party added under article 8 (addition of parties) were parties to such an action, provided that for the purposes of such a taxation - (a) any reference in the Rules to "the presiding judge" shall be construed as a reference to "the presiding chairman or other member of the Tribunal"; and (b) the reference in rule 8(l)(a) of the Rules to "the Court's award" shall be construed as a reference to "the Tribunal's award". General power, interpretation, citation and commencement General power of the Tribunal.

26. Subject to the provisions of the Law and the Ordinance - (a) the procedure in connection with the consideration and dziermination of ariy appeai shall be - (i) as provided for under this Order; or (ii) as the Tribunal otherwise determines; and Order of the Royal Court No. I of 2000. (b) the Chairman may issue practice directions in relation to the procedures provided for by this Order or as otherwise determined by the Tribunal. Interpretation.

27. (1) In this Law, unless the context otherwise requires - "Advocate" means an advocate of the Royal Court of Guernsey; "appeal" has the meaning given by section 11 of the Ordinance; "applicant" means a person who institutes an appeal; "Chairman" means the person designated as Chairman under section 2 of the Ordinance; "costs of a hearing" has the meaning given by section 6(3) of the Ordinance; "an instrument" means any order (including any Order of the Royal Court), regulations, rules or other subsidiary legislative instrument; "intervener" means a person seeking to intervene under article 8 (addition of parties); "the Law" means the Regulation of Utilities (Bailiwick of Guernsey) Law, 2001e; "the Ordinance" means the Regulation of Utilities (Utility Appeals Tribunal) Ordinance, 2001; "party" includes the applicant, the Director General and any other party added under article 8 (addition of parties); "the presiding chairman" means the member of a Tribunal nominated to chair the Tribunal under section 4(2)(b) of the Ordinance; "response" means a response sent to the Tribunal in the form required by article 7 (response); "the Royal Court" means the Royal Court of Guernsey sitting as a full court; "secretary to the Tribunal" means the person appointed under section 10 of the Ordinance or, if no person has been so appointed, the Chairman: "statement of intervention" means a statement sub~iiitledby an intervener in accordance with article 8 (addition of parties); "summons" means a summons served in accordance with section 15(4) of the Law; e Order in Council No. XI of 2001 "Tribunal" has the meaning given by section 11 of the Ordinance; and "witness summons" means a summons served under article 13 (summoning of witnesses). (2) The provisions of the Interpretation (Guernsey) Law, 1948~ shall apply to the interpretation of this Order - (a) throughout the Bailiwick; and (b) as they apply to the interpretation of an enactment. (3) Unless the context otherwise requires, references in this Order to an enactment or instrument are references thereto as amended, re-enacted (with or without modification), extended or applied. (4) In this Order any words importing the neuter gender shall include the masculine and the feminine, and any words importing the masculine gender shall include the feminine and the neuter. (5) Unless the coniext oiherwise requires (a) a reference in this Order to a numbered article is a reference to the article of this Order which is so numbered: and Ordres en Conseil Val. XIII, p. 355. (b) a reference in a provision of this Order to a numbered paragraph is a reference to the paragraph of that provision which is so numbered. Commencement.

28. This Order shall come into force on the 17Ih day of December 2002. Citation.

29. This Order may be cited as the Utility Appeals (Rules of Procedure) Order, 2002. Dated this l.7 6(day of L t , 2002. F. J. ROPER President of the States Board of Industry For acd on behalf of th,e Roard. EXPLANATORY NOTE. (This note is not part of the Order) This Order sets out rules of procedure that are to apply in the case of appeals against decisions of the Director General of Utility Regulation before the Utility Appeals Tribunal established under the Regulation of Utilities (Bailiwick of Guernsey) Law, 2001.