Annex 2

1. Appeals
2. The procedures of the Independent Appeals Body
3. The Appeal Tribunal
4. Suspension of sanctions
5. Representation
6. Pre-hearing process
7. The hearing
8. Confidential information
9. Recording
10. Public hearing
11. Costs of hearing
12. Powers of the Appeal Tribunal
13. Decision and publication
14. Further appealAppeals against PhonepayPlus adjudications

Appeals against PhonepayPlus adjudications

The Independent Appeals Body (‘IAB’) is a body of persons independent of PhonepayPlus appointed to provide tribunals to hear appeals.

The PhonepayPlus Code of Practice (Eleventh Edition) provides a right of appeal for service providers, applicants for permission, information providers, associated individuals or network operators who are aggrieved by an PhonepayPlus decision or determination. The relevant provisions in the PhonepayPlus Code of Practice (Eleventh Edition) are as follows:

1    Appeals

1.1     Service providers, applicants for permission, information providers, associated individuals and network operators (‘appellants’) may, after an oral hearing at which the appellant or his representative has appeared, appeal to the Independent Appeals Body (‘IAB’) against Tribunal decisions and adjudications (other than any adjudication by consent).

Appeals may be made on the following grounds:

• the disputed decision was based on error of fact,
• the disputed decision was wrong in law, or
• the Tribunal exercised its discretion incorrectly in reaching its decision.

1.2      In order to institute an appeal, the appellant must provide a written notice of appeal setting out the grounds upon which the appeal is made and the facts and matters upon which it is based, to be received by the clerk to the IAB (‘the Clerk’) within 20 working days of the issue of the Tribunal adjudication or determination which is the subject of the appeal.

1.3     The notice of appeal must be accompanied by:

•  the written adjudication,
• the case bundle used at the Tribunal oral hearing,
• a security deposit of £5,000 or an application (to be determined by the Chairman of the IAB) to waive or reduce such a security deposit selling out the grounds for such waiver or reduction,
• a description of any new evidence upon which the appellant intends to rely and which, for good reason, was previously unavailable,
• if the notice of appeal and/or any necessary accompanying documents are being provided to the Clerk more than 20 working days after the issue of the Tribunal adjudication, the appellant must also provide an application (to be determined by the Chairman of the IAB) for the appeal to proceed,setting out the reasons for the delay and the grounds for such application.

1.4      If an appellant or his representative failed to appear in person at an oral hearing for good reason, but the oral hearing proceeded in his absence and PhonepayPlus has refused to permit a further oral hearing, the appellant may apply to the Chairman of the IAB to request him to require that PhonepayPlus holds a further oral hearing.

The procedures which follow are those laid down by the IAB and are under its control.

2    The procedures of the Independent Appeals Body

The IAB is able to hear any appeal lodged with the Clerk to the IAB (‘the Clerk’) in accordance with the provisions of Section 10 of the PhonepayPlus Code of Practice  (Eleventh Edition).

The Clerk shall forthwith, upon receipt of the notice of appeal, provide a copy of it and of the accompanying documents to the Chairman of the IAB (‘the Chairman’) and to PhonepayPlus.

In the event that an appellant was, for good reason, unable to attend an oral hearing but the oral hearing proceeded in his absence, then the appellant may apply to the Chairman of the IAB. The Chairman shall obtain the views of the Chairman of the hearing panel in writing, or in a hearing at which the appellant may also attend. The Chairman may require that PhonepayPlus provides a further oral hearing. The Chairman shall have the discretion to award the costs of the application.

3    The Appeal Tribunal

Upon receipt of a notice of appeal, the Chairman shall appoint an Appeal Tribunal, consisting of three members, to deal with the appeal. The Chairman or Deputy Chairman (if any) shall be the Chairman of the Tribunal (‘the Tribunal Chairman’).

 If the appellant has applied for a waiver or reduction in respect of the provision of the required security deposit and for the appeal to proceed despite the notice of appeal having been lodged out of time, then as soon as reasonably practicable, the Tribunal Chairman shall convene a hearing at which any such application shall be considered and at which PhonepayPlus may be heard.

In respect of an application for a waiver of the requirement to provide the security deposit, the Tribunal Chairman shall waive the deposit (or reduce the required level of security) if he determines that there appears to be plain merit in the grounds of appeal and that exceptional hardship will result from the requirement that the security be provided.

PhonepayPlus shall be entitled to apply to the Tribunal Chairman for a determination that the appeal should not be permitted to proceed unless the security deposit is increased to a higher level and/or that a sum is lodged as security for costs. The Tribunal Chairman may make such a determination entirely at his discretion.

In respect of an application for an appeal to proceed despite having been made late, the Tribunal Chairman shall grant such application if he is satisfied that, in all the circumstances, it is fair to do so and he may impose such conditions as he sees fit as to the further conduct of the appeal or as to lodgment of security for costs.

4    Suspension of sanctions

The enforcement of sanctions imposed by PhonepayPlus is not automatically suspended by the provision of a notice of appeal. An appellant may apply to the Tribunal Chairman, by written application to the Clerk, setting out the grounds upon which the sanction should be suspended. The Clerk will forthwith provide a copy to the Tribunal Chairman. Unless the Tribunal Chairman considers that there are exceptional reasons in the particular case to grant the application, he will do so only if he is satisfied that not to do so would give rise to undue hardship, and that to do so would not give rise to a significant risk of public harm. He shall seek the views of PhonepayPlus on those matters prior to making a decision and may convene a hearing to deal with such applications.

If an appellant has not been granted a suspension of sanction, and has not complied with the sanction imposed, the Tribunal Chairman may stay the appeal on the application of PhonepayPlus or on his own volition. Appeals stayed for more than six months shall be automatically struck out and may not be recommenced.

5    Representation

The appellant shall be entitled to appear before the Appeal Tribunal in person and be represented.

PhonepayPlus shall attend as respondent to any appeal before the Appeal Tribunal and may instruct a representative to act on its behalf.

6    Pre-hearing process

The Tribunal Chairman may, at his own discretion, or upon the application of either party to the appeal, convene a conference of the parties at which he may give such directions as he considers necessary for the fair and speedy hearing of the appeal. Such directions may include, for example, directions for:

• the admission of facts before the hearing,
• the disclosure of documents,
• the provision of expert reports,
• the exchange of written statements,
• the preparation of agreed bundles of documents,
• the submission and exchange of outline arguments.

Directions may be given as to the date by which such actions shall be taken.

For the avoidance of doubt, the Chairman shall have the power to make directions for disclosure of documents and any other directions relating to evidence as though the appeal was a first hearing of the matter which is the subject of the appeal.

Not less than 10 working days before the date of the hearing of the appeal, the Clerk shall send written notice of the day, time and place of the hearing of the appeal to the last known address of the appellant and to PhonepayPlus.

Within five working days of receipt of the notice specifying the date of the hearing, both the appellant and PhonepayPlus shall each inform the Clerk in writing of whether they intend to appear at the hearing and the name of any person who will be representing them at the hearing.

7     The hearing

The appellant shall outline the grounds of his appeal and call such witnesses and refer to such documents as he is entitled to do.

PhonepayPlus shall then be entitled to respond to the case put by the appellant and to call such witnesses or present any written statements or other documents.

The appellant shall then be entitled to address the Appeal Tribunal.

A witness in person may be cross-examined by the other party in the appeal.

A witness who has been cross-examined may be re-examined.

The Tribunal Chairman may question any witness at any time.

The Tribunal Chairman shall have the power to vary any of these procedures at any time and to adjourn the hearing if satisfied that it is in the interests of justice to do so.

If the appellant is neither present nor represented at the hearing and the Appeal Tribunal has no cause to believe there is a good reason for the appellant’s absence, the appeal may be dismissed.

8    Confidential information

The Appeal Tribunal shall be entitled to consider and act upon confidential information without directly or indirectly disclosing to the appellant (or PhonepayPlus as the case may be) the source of that information provided that the appellant (or PhonepayPlus) is given a reasonable opportunity to rebut its substance.

9    Recording

A sound recording shall be made of the proceedings before the Appeal Tribunal. Recordings will be made available to PhonepayPlus and the appellant.

10    Public hearing

An appeal hearing shall be conducted in private, unless the appellant or PhonepayPlus otherwise requires. If an appeal hearing is in public, either party may request that any part of the hearing be conducted in private and any such application shall itself be heard in private.

 11    Costs of hearing

The Appeal Tribunal shall make such award for costs of the parties as it shall see fit, subject to a maximum of £25,000 (inclusive of disbursements and VAT). In addition, the Appeal Tribunal shall award the costs of the provision of the Tribunal as it sees fit, subject to a maximum of £10,000 (inclusive of VAT).

12    Powers of the Appeal Tribunal

The Appeal Tribunal shall consider all documentation and evidence produced at the PhonepayPlus oral hearing and may, at its discretion, rehear any witness called before the PhonepayPlus oral hearing and hear new evidence which for good reason was not available at the PhonepayPlus oral hearing.

The Appeal Tribunal may:

1. confirm, vary or rescind an adjudication or determination or any part of it made by PhonepayPlus and substitute such other finding as it considers appropriate,
2. confirm, vary or rescind any sanction imposed by PhonepayPlus pursuant to its adjudication. For the avoidance of doubt, the Appeal Tribunal may impose a greater sanction (or sanction direction) than that imposed by PhonepayPlus, provided that such a sanction could have been imposed by PhonepayPlus.
3. confirm, vary or rescind the imposition of an administrative charge made by PhonepayPlus.

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13    Decision and publication

The Appeal Tribunal shall, as soon as is practicable after the hearing, provide a reasoned written decision. This written decision shall be published by PhonepayPlus.

14     Further appeal

There is no further appeal through PhonepayPlus’ procedures or those of the IAB.