Rules of the Takeover Appeal Board

Rules of the Takeover Appeal Board

Recitals

(1): The Takeover Appeal Board (the “Board”) is constitutionally independent of the Panel on Takeovers and Mergers (the “Panel”).
(2): The Chairman and Deputy Chairman of the Board are appointed by the Master of the Rolls. They will usually have held high judicial office.
(3): Other members of the Board, who will usually have relevant knowledge and experience of takeovers and the City Code on Takeovers and Mergers (the “Code”), are appointed by the Chairman (or, failing that, the Deputy Chairman) of the Board.
(4): The names of the members of the Board and the Board’s contact details are available on the Board’s website (www.thetakeoverappealboard.org.uk).
(5): The functions of the Board are to hear and determine appeals against rulings of the Hearings Committee of the Panel, to make such directions (if any) to the Panel as the Board considers appropriate for giving effect to its decisions and to make such procedural rulings in connection with the performance of its other functions as it considers appropriate.
(6): The Board, when hearing appeals from the Hearings Committee of the Panel, ensures that appeals in respect of rulings on the interpretation, application or effect of the Code are conducted according to law.
(7): These Rules set out the procedures and practices by which appeals are to be conducted.

1. Appeals to the Board

1.1

Any party to the hearing before the Hearings Committee (or any person denied permission to be a party to the hearing before the Hearings Committee) (an “Appellant”) may appeal against any ruling of the Hearings Committee by lodging a Notice of Appeal, as prescribed at paragraph 1.2 below.

1.2

The Appellant must lodge a Notice of Appeal with the Board, and simultaneously notify the other parties to the hearing of the Hearings Committee, (i) within such reasonable time as is stipulated by the chairman of the hearing before the Hearings Committee or by the Hearings Committee itself; or (ii) in the absence of such stipulation, within two business days of the receipt in writing by the Appellant of the ruling of the Hearings Committee or of the chairman of the hearing in question. Notice of Appeal shall record the ruling or part of the ruling against which the appeal is made, the grounds and basis of the appeal and the remedy requested. It shall also exhibit any evidence upon which the Appellant relies.

1.3

When a Notice of Appeal is lodged or purported to be lodged, a member of the Board shall act as “chairman of the hearing”. Where the Chairman is available, he shall act as chairman of the hearing. Where the Chairman is unavailable, the Deputy Chairman shall act as chairman of the hearing. Where neither the Chairman nor the Deputy Chairman is available, the Chairman (or, failing that, the other members of the Board) shall appoint one of the members who is available to act as chairman of the hearing.

1.4

The Board, or the chairman of the hearing, shall be responsible for determining whether a Notice of Appeal has been validly lodged and any other procedural issues arising from or in connection with the lodging or purported lodging of a Notice of Appeal, including any question as to the grounds and basis of the appeal.

1.5

Any decision made by the chairman of the hearing in accordance with these Rules (including procedural directions) is a decision of the Board.

1.6

The chairman of a hearing may, on behalf of the Board, deal with:

(a) appeals relating to procedural directions of the Hearings Committee;

(b) appeals that he considers to have no reasonable prospect of success; and

without convening the Board. In such cases, the chairman of the hearing may determine the appeal or matter without an oral hearing. In relation to such appeals and matters, paragraph 2.1 below does not apply.

1.7

Any ruling of the Hearings Committee shall stand pending determination of any appeal, unless otherwise directed by the Hearings Committee or by the chairman of the hearing before the Hearings Committee or, where a Notice of Appeal has been lodged or purported to be lodged, the chairman of the hearing.

1.8

References in these Rules (except in paragraph 2.1 below) to “the Deputy Chairman” shall include any additional Deputy Chairman who may be appointed by the Master of the Rolls.

2. Conduct of proceedings before the Board

2.1: The quorum for Board hearings is three, including the Chairman and Deputy Chairman or either of them (unless neither is available to sit at the hearing). If an additional Deputy Chairman is appointed, the quorum for Board hearings is three, including the Chairman and one of the Deputy Chairmen, or either of the Chairman or one of the Deputy Chairmen (unless all three are unavailable to sit). However, the Board hearing an appeal will usually comprise at least five members.
2.2: No member of the Board may be, at the same time, a member of the Code Committee, nor may a member of the Board formerly have been a member of the Code Committee. No member of the Board may be, at the same time, a member of the Hearings Committee of the Panel or an officer or member of staff of the Panel. Members of the Board proposing to attend a hearing of the Board must raise with the chairman of the hearing any issues concerning possible conflicts of interest prior to the start of the hearing.
2.3: The chairman of the hearing shall appoint a third party to act as Secretary to the hearing, to perform such functions as the chairman of the hearing may direct. The Secretary must not have participated in any way in the proceedings under appeal or in the matter at issue in the appeal and must be free from conflict of interest. Communications between the Board and the parties shall usually be conducted through the Secretary.
2.4: The Board may obtain external legal or other independent professional advice, and may seek to secure the attendance at its proceedings of third parties with the relevant experience and expertise if it considers this to be necessary for the fulfilment of its duties.
2.5: The Board may sit at such times and in such places as either it or the chairman of the hearing deems most convenient and appropriate in all the circumstances. The Board can be convened at short notice, where necessary, and no specific notice period is required.
2.6: The Board or the chairman of the hearing may give such procedural directions as it or he considers appropriate for the conduct and determination of the case, including the extension or shortening of any specified time limits and the alteration or variation of the rules set out in this paragraph 2. A party may apply, at any time during the proceedings, to the chairman of the hearing for procedural directions.
2.7: The Board may draw such adverse inferences as it deems proper from any failure of a party to an appeal to comply in full and on time with any procedural direction, and may take such action as it considers appropriate in relation to such failure. In particular, it may, where it considers appropriate, treat such a party as no longer being interested in pursuing the appeal (which may result in the dismissal of the appeal) or refuse such a party any further participation in the appeal. In particular, in disciplinary matters, the Board may draw such adverse inferences as it deems proper from any failure by an Appellant to attend any hearing or from the choice by the Appellant to remain silent at the hearing.
2.8: Save for the circumstances set out in paragraph 1.6 above, appeals shall be by way of a complete rehearing of those matters contested.
2.9: Proceedings shall be conducted on an informal basis. In particular, no formal rules of evidence shall apply.
2.10: A party must raise with the chairman of the hearing any issues concerning possible conflicts of interest in relation to members of the Board and any other objections in relation to the composition of the Board or the conduct of the proceedings. Any such issues or objections must be raised at the earliest opportunity, and shall be considered and ruled upon by the chairman of the hearing.
2.11: Without prejudice to the generality of paragraph 2.6 above, the chairman of the hearing may direct any party, at a time and place and in a manner as directed: (i) to submit written statement(s) of case, setting out the grounds and basis of the party’s position (including any cross-appeal) and the remedy requested (if any), and exhibiting any evidence upon which the party relies; (ii) to produce to the Board and/or to any other party any document or information or other item relevant to the proceedings; (iii) to call any person to attend, or give evidence at, the hearing; and (iv) to notify the Board of any procedural issue which it wishes to raise in the proceedings.
2.12: Proceedings before the Board shall be held in private, unless the chairman of the hearing, at his discretion, directs otherwise. Any party may request that the hearing be held in public and such a request shall be considered and ruled upon by the chairman of the hearing (or, at the discretion of the chairman of the hearing, by the Board itself).
2.13: The Board or the chairman of the hearing may, upon application of a party, and if satisfied that it is appropriate in the circumstances, direct that certain confidential or commercially sensitive evidence be heard in the absence of one or more of the parties to the proceedings. Save as otherwise provided in these Rules, all parties will be entitled to be present throughout the hearing and to see all papers submitted to the Board.
2.14: In the event of a public hearing, the Board or the chairman of the hearing may direct that the Board shall hear part or parts of the proceedings in private and may impose such conditions (including in relation to the non-disclosure of information relating to the proceedings) as it or he considers necessary and appropriate.
2.15: The case shall be presented by the parties or their advisers. Parties may, if they so wish, be represented by legal advisers. Failure by a party to attend a hearing or be represented at a hearing shall not prevent the Board or the chairman of a hearing proceeding in the absence of that party.
2.16: Any party may, subject to the consent of the chairman of the hearing, call witnesses at the hearing.
2.17: A recording of the hearing shall be made for administrative purposes, but will not be retained once the proceedings are brought to an end. A transcript of the hearing will also be made. Any party to the hearing may request a copy of the transcript, and such a request shall be considered and ruled upon by the chairman of the hearing who may impose conditions as to its confidentiality and use.
2.18: The Board’s deliberations shall be conducted in the absence of the parties. Decisions of the Board shall be by majority vote; where necessary the chairman of the hearing shall have a casting vote.
2.19: The Board may confirm, vary, set aside, annul or replace the contested ruling of the Hearings Committee, and may also remit the matter to the Hearings Committee with such directions (if any) as the Board (or the chairman of the hearing) considers appropriate for giving effect to its (or his) decision. For the avoidance of doubt, in an appeal in respect of a disciplinary matter, the Board may impose any sanction available to the Hearings Committee.
2.20: The chairman of the hearing shall sign the decision of the Board. The Board will provide a copy of its decision in writing to the parties as soon as practicable.
2.21: The Board will usually publish its decision and reasons in a public statement. Any public statement of the Board will be issued as promptly as possible, having regard to all the circumstances of the case, after the decision has been provided in writing to the parties. The chairman of the hearing may, upon application by any party, redact matters from the public statement in order to protect confidential or commercially sensitive information. The Board may issue a public statement of its decision (without providing reasons at this stage) in advance of the publication of the full decision.
2.22: The validity of any acts or proceedings of the Board shall not be affected by any vacancy among the membership of the Board or by any defect in the appointment of any Board member.

Adopted by the Takeover Appeal Board on 12 April 2006 and amended on 21 July 2011

The Takeover Appeal Board