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Changes to appeal rights and processes: a step too far?

Amid the currently crowded landscape of reform processes and proposals affecting the civil justice system in England and Wales, one set of reforms, that has perhaps stayed further below the radar than might have been expected, are the proposals aimed at addressing the serious delays being experienced in the Court of Appeal’s Civil Division.

The growing problems in the Court of Appeal have been known to practitioners for some time and were confirmed by a time/cost analysis of judicial workload commissioned by the court in 2015. The court’s workload had apparently increased by 59% in the previous five years, with effectively no increase in judicial resources over that time. The backlog of cases waiting to be heard (at both the permission stage and on substantive appeal) is continuing to grow, as there is a significant shortfall in the amount of judicial time available to deal with the increased amount of work coming into the court each year.

Of course, this all points to the obvious solution of increasing judicial resources. However the Master of the Rolls, in a preface to the May 2016 consultation document in which the latest round of proposals was put forth, stated that, in light of his discussions with the Ministry of Justice:

“I have no doubt that there is no possibility at the present time of increasing the number of judges in the court”.

Accordingly, a package of reforms aimed at reducing the court’s growing workload was put to the judges of the court in March this year. That package, which reportedly secured the judges’ unanimous support, has a number of elements. These include internal administrative changes within the court (such as increasing the number of judicial assistants) as well as legislative measures to re-route certain appeals to the High Court. However, the two key proposals, which involve changes to the Civil Procedure Rules (CPR) and were the subject of the subsequent consultation by the Civil Procedure Rules Committee (CPRC), were:

  • Removing the automatic right to an oral renewal of permission to appeal applications that have been refused on the documents.
  • Raising the threshold test for permission to appeal to the Court of Appeal from a “real prospect of success” to a “substantial prospect of success”.

The first of those changes is now to be introduced from 3 October 2016, under CPR changes effected by the Civil Procedure (Amendment No. 3) Rules 2016 (which, practitioners should note, also takes the opportunity to consolidate and re-order the existing appeals rules in a new Part 52).

The position in respect of the second proposal remains unclear. However, as noted below, it seems that it remains in the pipeline.

Removal of right to oral renewal on permission applications

Under the existing rules, where an application for permission to appeal is made to the Court of Appeal, the court may determine it on the papers without an oral hearing. However, if it is refused, the applicant has the right to renew the application at an oral hearing (unless it has been classified as “totally without merit”).

Briggs LJ observed in his final report on the Civil Courts Structure Review (which touched on the proposal to remove the right of oral renewal) that the balance currently struck between written and oral presentation in the Court of Appeal “commands high public respect”, and that this was vigorously borne out by the “widespread dismay” he encountered amongst consultees to his Review at any prospect of the right of oral renewal being removed.

Consultees to both Briggs LJ’s review and the CPRC consultation expressed concern at the potential that the change would result in a denial of justice through meritorious appeals being wrongly excluded at the permission stage on the decision of one Lord Justice on the papers. The right to put one’s argument at an oral hearing has widely been regarded as an important safeguard within the appeal system, allowing for the correction of any misunderstanding on the papers and instilling confidence in its users. That is arguably of increasing importance with the growing numbers of litigants in person.

The importance of this safeguard appears to be borne out by the 2015 time/cost analysis supporting the CPRC consultation. It indicates that, in the year to March 2016, 20% of oral renewals following unsuccessful paper applications were successful. Notably, 23% of cases where permission was granted at oral renewal following a refusal on paper went on to be ultimately successful. However, the Explanatory Memorandum accompanying the amending instrument, which now introduces the change, dismisses this concern on the basis that the number of cases in the latter category is “small”, so that the concerns are “relatively limited”.

Despite these and other objections, and perhaps unsurprisingly given that they had already been voiced in the context of Briggs LJ’s Review prior to the CPRC consultation being issued, the CPRC has approved the change, effective from 3 October 2016. Under the new CPR 52.5, the default position is that permission applications will be determined on the papers, unless the judge exercises discretion to “call in” the application for an oral hearing (before him or herself). Judges will have a duty to do so if they are of the opinion that they cannot fairly determine the application on the papers.

Notably, the consultation document proceeds on a working assumption that 10% of permission applications will be “called in” for oral hearing, although the basis for this is not explained. It will be interesting to see how accurate this turns out to be, as judges adjust to a system where they must be conscious that a decision to refuse permission on the papers will be the end of the line for a would-be appellant.

Raising the threshold for appeals: watch this space

Along with the removal of the right of oral renewal, all of the other various proposals put forward in the CPRC consultation document were approved by the CPRC and included in the amending instrument with the exception of the proposal to raise the threshold test for permission to appeal from a “real” to a “substantial” prospect of success. The accompanying Explanatory Memorandum includes no mention of this proposal or the consultation responses to it.

This has been seen by some commentators as a welcome indication that the proposal has been abandoned.

However, in his final report, Briggs LJ indicated that the proposal to increase the merits threshold had been “adjourned for further review” by the CPRC. The report seems to suggest that this was due to a concern at the prospect of having a different test for appeals to different courts, and not at the raising of the threshold per se. He observes:

“There will probably be further consultation as to whether the raise in the threshold from ‘real’ to ‘substantial’ prospect of success should be applied to all appeals, rather than only to appeals in the Court of Appeal.”

However, if the proposal proceeds, it will be in the face of substantial concerns raised in responses to the consultation, including by the Law Society and the Bar Council, which both opposed any change to the threshold. Briggs LJ’s final report also notes that there was “general opposition” to any raising of the threshold amongst consultees to his review.

In practice, the distinction between a “real” prospect of success and a “substantial” one is of course somewhat nebulous and would be highly susceptible to the subjective views of the individual judge considering the application. On the face of it, it seems unlikely that prospective appellants would be dissuaded from pursuing an appeal purely out of concern that it might be adjudged to fall within the band between a “real” and “substantial” prospect. Accordingly, such a change may not have any significant impact on the number of cases in which permission is sought.

However, it is clear that the intention behind the suggested re-wording is that a portion of applications that would currently qualify for permission would be refused under the new test. Certainly, judges considering applications would be conscious of the expectation that fewer permissions would be granted. It is not clear how many cases would ultimately be affected by such a change. However, it would undoubtedly result in there being a category of litigants who would have a real prospect of success on appeal but who are nevertheless deprived of access to the appellate court to have that tested.

That is of concern, not only as a matter of justice being done, but of it being seen to be done, both by litigants themselves and observers of the system. One of the issues cited in support of the reform proposal is the (justified) concern that continued delays in the Court of Appeal could undermine the reputation of the English courts internationally as a centre of excellence based on a strong adherence to the rule of law. However, one must question the extent to which observers might doubt the fairness and reliability of a justice system that deprives litigants of appeal rights, even if they can show that they have a real prospect of establishing judicial error.

Further, there is force in the argument that raising the threshold has the potential to undermine the court’s broader role in clarifying and shaping the law, particularly on questions of statutory interpretation and on the exercise of judicial discretion and case management powers. Requiring a substantial prospect of success could deprive the court of the opportunity to issue authoritative guidance where it is most needed to “correct” a line of authority that is either no longer fit for purpose, or has gone astray. For example, as the Bar Council noted in its consultation response, one must wonder whether an important case such as Denton v TH White would have ever made its way to the Court of Appeal if the appellant had been required to show a substantial prospect of success.

These concerns arguably have even more force now that it has been confirmed that the right to oral renewal is to be removed. As the Bar Council put it, the combined operation of both proposals would amount to simultaneously raising the bar and restricting the appellant’s opportunity to clear it.

The approach disclosed in the consultation document appears to be that, while any curtailment of litigants’ substantive rights by the two key proposals is regrettable, in the absence of an increase in judicial numbers there is simply no other option available to stem, let alone turn around, the worsening position in the court. If that is a fair characterisation of the position, it seems a concerning case of the tail wagging the dog. While no legal system can be expected to deliver perfect justice, and there will always need to be a line drawn as to what risk of injustice is tolerable, there must be a strong argument that excluding any appellate route where there is a real prospect of demonstrating an error goes beyond that line. If it is in fact the case that, after all other options have been considered (which is not clearly the case yet), the overload in the Court of Appeal cannot be addressed without depriving litigants of rights that have up until now been considered necessary and appropriate. This clearly points to the conclusion that the court is not being adequately funded to perform its proper role in society.

It is at least to be hoped that any changes to the threshold will not be made before there has been a proper assessment of the impact of the various other measures being implemented. These include, particularly, the removal of the right to oral renewal.

One of the key reasons that excessive delays in the appeal regime need to be addressed is the effect of such delays on the delivery of justice to litigants; justice delayed can be justice denied. However, arguably, it is counterproductive to seek to reduce those delays by measures that will themselves result in a denial of justice to some categories of litigants.

Herbert Smith Freehills Jan O’Neill

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