A guest post by Paul Marshall and Philip Coppel QC, both of Cornerstone Barristers
“It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning… that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court” – Anisminic Ltd v Foreign Compensation Commission  2 AC 147
“It might be asked, what is the nature of the ‘right’ to an oral hearing of an application for PTA [permission to appeal]? Under the current form of CPR 52.3(4) that ‘right’ is very attenuated. It can be removed by a practice direction: no subordinate, let alone primary, legislation is required.” Civil Procedure Rule Committee consultation paper, Appeals to the Court of Appeal, 19 May 2016.
The erosion of rights tends to occur incrementally, none more so than important rights.
On 3 October 2016, the rule committee, by amendment to the Civil Procedure Rules (CPR), abolished the right to a permission-to-appeal hearing in the Court of Appeal. Permission to appeal in that court is now a purely paper exercise, save where the judge looking at the papers is of the opinion that deciding permission needs a hearing.
The significance of the decision to grant or to refuse permission to appeal cannot be overstated. It ranks with the decision to allow or dismiss an appeal.
When the decision is one refusing permission, that is the terminus of that person’s right to access the judicial system. Regardless of how wrong a refusal may be, regardless of how important the appeal may be, and regardless of how enduring harm flowing from the judgment below, that is it.
The question then becomes − Is it right that the person charged with making such a momentous decision should do so without hearing the person so affected?
The answer is ‘no’.
The significance of the decision demands some opportunity for that person to meet the difficulties perceived by the decision-maker; some opportunity to point out misunderstandings, to fill the gaps in understanding, to which such an exercise is so susceptible; and for the person affected to see face-to-face the decision-maker, and vice-versa.
A permission to appeal hearing does all this. A purely paper exercise does none.
That a pure paper exercise is not entirely satisfactory is recognised in the “cannot be fairly determined on paper without an oral hearing” exception. But this formula – which cannot remedy mistakes, however egregious, in what “fairly determined” requires − does not rescue the procedure. It is a mere prosthetic, bolted on to enable the system to hobble to compliance with article 6 of the European Convention on Human Rights.
Since the Supreme Court of Judicature Act 1873 (at the latest), the common law has required better than this. The common law recognises that the absence of transparency, supervision and accountability is not conducive to satisfactory decision-making.
Its systems and precepts reflect that. Its appeal structure acknowledged that mistakes are made. An effective appeal structure is adapted to allow the correction of mistakes, rather than their endorsement, witting or not.
Of course, Parliament may choose to rid us of all this. If that is what it wants to visit on the country, it will need to spell it out in unmistakeable language.
Happily, Parliament has not done so.
But, with a few words, the rule committee has. That the committee had any power to do so is doubtful. That it has weakened the ability to right a legal wrong is indisputable. The excuse it offered for doing so is unworthy.
A little history
The Court of Appeal was established by the 1873 Act. It provided for a Court of Appeal with five ex officio judges and not more than nine ordinary judges. It was given jurisdiction to “hear and determine” appeals from orders or judgments of the High Court. Its jurisdiction was purely civil.
Other than costs orders, consent orders and discretionary orders, there was no leave (permission) requirement in relation to an appeal from orders of the High Court. Appeals had to be heard by no fewer than three judges.
A schedule to the Act constituted the rules of procedure − the equivalent of today’s CPR. These provided that all appeals to the Court of Appeal were by way of re-hearing. Other than with special leave, an appeal against a final order could not be brought more than one year after judgment.
The Supreme Court of Judicature Act 1875 partly modified the 1873 Act, but the two were otherwise intended to be construed as one. The 1875 Act contained replacement rules of procedure, but the appeal system remained as it was under the 1873 Act. The industry, learning and wisdom of the judges of this new Court of Appeal is evidenced in the law reports.
The 1873-75 Acts were re-enacted in the Supreme Court of Judicature (Consolidation) Act 1925. The Supreme Court Act 1981 re-enacted the 1925 Act, consolidating it with intervening legislation. A new provision, section 54(6), provided that an application to the civil division of the Court of Appeal for leave to appeal to that court could be determined by a single judge of that court. No appeal could lie from such a decision.
Importantly, whereas other provisions of that Act spoke of matters being “heard and determined” by the court, section 54(6) spoke only of leave being “determined” by the court. This small change, then, appeared to give the mandate for doing away with permission-to-appeal hearings.
But it did not − common law traditions were observed: Practice Note  1 WLR 1312. Under the Rules of the Supreme Court 1965, the practice developed by which a single judge of the Court of Appeal considering an application for permission to appeal would give a provisional indication on paper without an oral hearing.
If permission was refused on paper, an appellant had the right to renew the application for permission orally before a judge sitting in chambers. That practice was preserved on the introduction of the CPR in April 1999.
In 2006, the CPR were amended to provide that where the court had refused permission to appeal without a hearing, it might, “if it consider[ed] that the application [was] totally without merit” make an order that denied the applicant the right to request reconsideration of that refusal at a hearing.
That remained the position until 3 October 2016. And it remains the position for appeal courts other than the Court of Appeal.
On that date, the procedure in the Court of Appeal, only recently reserved for appeals with no merit at all, was made the standard practice. Whether one calls this evolution or erosion depends on what one values.
The importance of an appeal
A right to appeal has long been recognised as a citizen’s constitutional right. The right provides protection against the harm and injustice caused by false judgments.
Lord Chief Justice Pratt in Dr Bentley’s case, R v Chancellor of the University of Cambridge (1723) 1 STR 757, explained the importance: “The glory and happiness of our excellent constitution, that to prevent any injustice no man is to be concluded by the first judgment; but that if he apprehends himself to be aggrieved, he has another court to which he can resort for relief.”
Lord Justice Bowen in R v Justices of the County of London  2 QB 492 commented that “if no appeal were possible… this would not be a desirable country to live in”.
This returns us to the question: Is it right that in the Court of Appeal the gate to this process should be opened or shut without giving the person who stands to be afflicted by a wrong judgment any right of being heard?
The answer is ‘no’. The decision is too important to be relegated to a desk function.
The rationale for abolition
The consultation paper gave improvement in Court of Appeal “efficiency” as the rationale for abolishing permission-to-appeal hearings.
It was estimated that abolition would “save” 2,929 hours of judicial time. This time would not be re-distributed to more extensive consideration of paper applications: it would simply be cut out of the process, leaving the paper-based process unimproved – giving the lie to the consultation paper’s expectation that “even greater diligence would be applied”.
Appendix 6 of the consultation paper provided statistics for the years 2010-15, showing that in all appeals but immigration and asylum appeals, over 20% of permissions applications refused on paper were allowed on renewal and were also allowed on full hearing.
This figure would be yet higher were it to take account of those given permission on renewal, that failed in the Court of Appeal but were allowed in the Supreme Court. Permission granted by random selection would yield a figure of 50%.
The rule committee was alive to its proposal increasing the likelihood of injustice. Rejecting the risk of miscarriage of justice as a nicety, it gave effect to its view that it is better that two good appeals be rejected than that five should be delayed.
In the rule committee’s estimation, absolute injustice suffered by a number of would-be appellants – who had failed to express themselves persuasively or coherently enough to secure permission on paper – was a fair exchange to mitigate the relative injustice represented by the delay in hearing the substantive appeals of others. In short, the arbitraging of injustice.
Was there power to abolish permission-to-appeal hearings?
The right to a hearing engages a basic principle of procedural fairness and natural justice − the right to be heard. Lord Reid’s above-quoted declaration in Anisminic expresses a tenet repeatedly recognised by the highest judicial authority:
“A citizen’s right to unimpeded access to the courts can only be taken away by express enactment” – Raymond v Honey  1 AC 1 (House of Lords).
And more recently: “Impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible” – R (UNISON) v Lord Chancellor  UKSC 51 (Supreme Court).
The authors of the consultation paper, on the other hand, claimed that “no subordinate… let alone primary legislation is required” to abolish permission-to-appeal hearings. Was this just dogma? Or was it founded on principle?
The general power of the rule committee to make rules of procedure is conferred by sections 1-2 of and schedule 1 to the Civil Procedure Act 1997.
Sub-section 1(3) constrained the committee’s rule-making power, regardless of source: “Any power to make Civil Procedure Rules is to be exercised with a view to securing that— (a) the system of civil justice is accessible, fair and efficient…”
Section 54 of the Access to Justice Act 1999 enables rules of court to provide that a right of appeal may be exercised only with permission. So far so good.
But section 54 says nothing about the manner in which permission is to be decided, including hearing representations. Is it permissible to read into section 54 a conferral of power on the rule committee to abolish the right to be heard on a permission application?
We think not. First, the words are not there. Section 54 spells out other details for which the rules may provide: it would be rather surprising that something so fundamental as abolition of the right to be heard should be left to implication.
Secondly, the other provisions of part IV (sections 54-73) of the 1999 Act suggest otherwise: for example, section 60 (that inserts section 58 into the Supreme Court Act) permits the rules to provide that Court of Appeal decisions be “called into question in such manner as may be prescribed” but it carves out from those decisions those that involve “the determination of an appeal or of an application for permission to appeal”.
Thirdly, it jars with section 1(3) of the Civil Procedure Act 1997. Fourthly, it is irreconcilable with consistent high authority from Anisminic to UNISON at .
The policy sense
Unstated assumptions in abolishing permission-to-appeal hearings are that everything that needs to be said can be reduced to writing, and that reading is the same as listening. It cannot and it is not.
The very notion of justice embodies those whose rights are determined being listened to by those who determine them. This is not the mere indulgence of those so affected. Presence and audibility perform a salutary role, the absence of which mark remoteness and facilitate inhumanity. This is as profoundly important to the court as it is to those whose rights are entrusted to it.
In Dr Bentley’s case, Fortescue CJ observed that God allowed Adam a hearing, despite His omniscience, thereby satisfying a basic human urge.
At a different level, and in a different era, the Supreme Court in R (Osborn) v Parole Board  UKSC 61 concluded that the tribunal needed to hear a prisoner before banishment to continued incarceration.
The rule committee set its face against something recognised throughout the common law world. In the US Supreme Court, Justice Brennan said: “Written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important” (Goldberg v Kelly US 254, 269 (1970)).
Lord Bingham made a similar point in R (West) v Parole Board  1 WLR 350: “It may often be difficult to address effective representations without knowing the points which are troubling the decision-maker.”
Not allowing an appellant to speak at a critical stage is not “unhindered access to the constitutionally established courts… for the determination of disputes”: Lord Diplock in A-G v Times Newspapers  AC 273 at 309; it is to deny the potential for “unanswerable charges which, in the event, were completely answered”: Megarry J in John v Rees  Ch 345 at 402.
Abolishing permission to appeal hearings impedes the right of access to the Court of Appeal: it cannot be squared with authority such as UNISON.
The rule committee in its consultation paper made no reference to the common law tradition. It was, however, troubled that an average of 50 minutes of judicial time was spent on permission-to-appeal hearings.
The direction of travel
Last year, the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 was enacted. This introduced sections 67A-67G into the Courts Act 2003, enabling “relevant judicial functions” of a court (which may include permission to appeal decisions) to be carried out by a person holding an office “that entitles the person to exercise functions of such a court”.
Section 67B(1) of the 2013 Act now provides that the rules of court may provide for the exercise of these “relevant judicial functions” by anyone appointed under section 2 of the Courts Act 2003 or section 40 of the Tribunals, Courts and Enforcement Act 2007, provided they have certain qualifications or experience.
In short, the rules of court may provide for judicial functions to be exercised by a person who does not hold judicial office. The grandeur of the great hall of the Royal Courts of Justice will be cold comfort to those whose appeal rights are reduced to whatever a faceless functionary fits onto an A4 sheet.
The Courts and Tribunals (Online Procedure) Bill now before Parliament contemplates further reduction of the judicial role.
Those refused permission to appeal might yet have to find comfort in whatever a computer spits out onto an A4 sheet and in their having facilitated incontrovertible improvements in efficiency.
The rule committee had no mandate to abolish permission-to-appeal hearings. There is nothing in the Civil Procedure Act 1997 that confers power on the rule committee to make rules which would deny, or interfere with, the right of an appellant to have unimpeded access to the court.
With no regard to authority, the committee sacrificed a central tenet of the common law judicial process − a fair hearing − to get a petty efficiency gain.
This usurpation was as unnecessary as it was undesirable. Far better, both qualitatively and procedurally, that permission be decided exclusively at a hearing of, say, 45 minutes, where grounds are argued and tested; where misunderstandings are corrected; where there is critical engagement that exposes logical weaknesses – of the judge as well as the advocate; where the protagonists can hear and see each other.
This is not to say that judicial assistants and other court officers cannot usefully prepare the ground for the judge at that hearing − quite the opposite.
For our legal system to have removed this process at the critical point of deciding whether a person should be permitted to appeal, flatters paper-based decision-making. The flattery is misplaced.
The solitary process of paper-based decision-making is uniquely susceptible to ever-deepening ruts of thought: a weakness of the human mind that does not diminish with greatness of mind. In erasing that which would expose its mistakes, it conceals that weakness.
This is not the way to go.
Comparing the current appeal offering with that of, say, 50 years ago, we may conjecture that the erstwhile Lord Justices might regard our achievement as the naval party did the boys’ in Lord of the Flies.