Guidance on applications for designation as a core participant

The role of core participants in the Inquiry

  • A core participant (‘CP’) is a person (i.e. individual(s) and/or organisation(s)) designated under rule 5 of the Inquiry Rules 2006 (the ‘Rules’), such being conditional upon the person’s consent.
  • The designation allows for a CP to effectively participate in the Inquiry’s work, principally by making an opening and closing statement and, if legally represented, by application for leave to ask questions of a witness. Further, a CP may suggest areas of questioning to be pursued by counsel to the Inquiry and, in due course, is entitled to advance sight of the Inquiry’s report before it is made public.
  • Accordingly, CPs are provided with disclosure of evidence relevant to their designation in order to facilitate participation, subject to any restrictions over such evidence made pursuant to section 19 of the Inquiries Act 2005 (the ‘Act’).
  • It should be noted that CP status is not the sole means by which those with a stake in the work of the Inquiry may participate: evidence may be received from those not designated and the Inquiry has wide powers to compel the production of evidence[1], including the attendance or production of documents by persons that have elected not to make an application for designation, or have made an unsuccessful application. In the latter case, all such applications are kept under review and a designation may be made at a later date[2].

Legal expenses and representation

  • A CP and other persons required to engage with the Inquiry will usually be entitled to their reasonable legal expenses (section 40 of the Act).
  • However, this entitlement is qualified by the ministerial determination in respect of legal expenses, which stipulates that costs are generally only recoverable in respect of work undertaken by a recognised legal representative (‘RLR’) designated pursuant to rules 6 or 7 of the Rules with a prior award made by the Chairman in place.[3]
  • The issue of designation of a RLR is distinct from the designation of CPs. Such designation is only made of a qualified lawyer in this jurisdiction instructed to represent a CP in respect of Inquiry proceedings.  Further, RLRs are designated in respect of all persons giving evidence and/or producing documents to the Inquiry that have appointed a legal representative, not only CPs.  The exact scope and extent of work done, including any wider legal team appointed under a RLR, is prescribed by the ministerial determination above-referred.  In the event that several CPs’ interest in the Inquiry is sufficiently similar, a single RLR shall be designated to represent those common interests (rule 7 of the Rules).

Designation as a CP

  • In the exercise of the discretion to designate a person as a CP, pursuant to rule 5(2) of the Rules the Chairman must consider whether:
    1. the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;
    2. the person has a significant interest in an important aspect of the matters to which the inquiry relates; or
    3. the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report.
  • This is not an exhaustive list and the Chairman may take into account other relevant considerations. Further, while the Chairman is required to consider the above, the breadth of the discretion is such that there is no obligation to make a designation.
  • The Inquiry’s first Chairman, Sir Christopher Pitchford, has offered further specific direction on the approach adopted in the designation of CPs in the rulings of 21 October 2015 and 15 December 2016, accessible by the following links:
  • In particular, the first consideration (direct and significant role) is emphasised given the extent of historical fact-finding that is necessary in the discharge of the Inquiry’s terms of reference.[4]

Timeframes

  • The Rules confer on the Chairman a discretion to make a designation ‘at any time during the course of the inquiry’ (rule 5(1)) and, further, terminate any designation in writing at any time (rule 5(3)).
  • By the Opening Remarks of 28 July 2015, the Chairman invited written applications for designation by 4pm on 18 September 2015[5], in respect of which a hearing was held to provide an opportunity for oral representations from those unsuccessful in their written application on 7 October 2015.
  • The rationale for setting a single date for applications at a relatively early stage of the Inquiry was that it was useful to establish at the outset the range and nature of interests likely to be represented by core participation, in order to inform the direction of the Inquiry’s investigations, which would, in turn, be conducive to effective planning and management of the Inquiry[6].
  • As provided by the combined effect of rules 5(1) and 5(3) of the Rules, the Chairman has made subsequent designations although these and all such further applications are considered late.
  • All applications made after 15 December 2016 require an explanation addressing the specific circumstances of the failure to make a timely application[7]. It may be the case, for example, that an applicant was unaware of the work of the Inquiry on account of living overseas.  Any reference to lack of information in the public domain will, generally, not suffice.

Form of application

  • Applications should be made in writing, addressed to the Solicitor to the Inquiry by email at info@ucpi.org.uk, or by postal mail at: PO Box 71230, London NW1W 7QH
  • The Chairman may request or require further information (including requiring an oral hearing) before determining an application.
  • There is no prescribed format for making an application. However, applicants should have close regard to the requirements of rule 5(2) of the Rules as set out above.
  • Further, applicants and any legal adviser instructed should note the following:
  • Applicants should consider the Chairman’s approach to designation as set out in the Opening Remarks and Rulings herein referred;
  • The application should be as brief as the underlying facts permit;
  • The applicant should indicate if they are currently, or intend to be, legally represented, including contact details of such legal representatives;
  • Applications made at this stage must contain an explanation as to the failure to make an earlier application; and
  • Any application for anonymity or other restriction pursuant to section 19 of the Act should be made in the CP application, although can be made at any time. Consequent to any such application, the subject matter in respect of which restriction is sought will be treated as restricted pending determination of the application (rule 12 of the Rules).

[1] Section 21 of the Act.

[2] Paragraph 12 of the Chairman’s Ruling on Core Participants of 21 October 2015.

[3] https://www.ucpi.org.uk/wp-content/uploads/2015/07/s404-Ministerial-Determination.pdf

[4] Paragraph 11 of the Chairman’s Ruling on Core Participants of 21 October 2015.

[5] Paragraph 31, Opening Remarks of 28 July 2015.

[6] Paragraph 8 of the Chairman’s Ruling on Core Participants of 15 December 2016.

[7] Paragraph 17 of the Chairman’s Ruling on Core Participants of 15 December 2016.