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Appeal threshold set to rise in bid to curb court’s “unsustainable” workload

Dyson: urgent and concerted action needed

Dyson: urgent and concerted action needed

A higher threshold for appeals and an end to the right to an oral hearing of permissions to appeal (PTAs) are at the heart of major reforms aimed at bringing the Court of Appeal’s (CA) workload under control.

With the volume of appeals up 59% over the past five years, the current waiting time for full appeals is now up to 19 months, up to six months for PTA decisions on the documents and up to a further six months for oral renewal of PTA applications.

In his introduction to a consultation paper [1] issued by the Civil Procedure Rule Committee, the Master of the Rolls, Lord Dyson, said: “The judges of the court do not regard the present position as acceptable or sustainable.”

Under the plans, the threshold for grant of PTA would rise from ‘a real prospect of success’ to ‘a substantial prospect of success’ on appeal. The consultation explained that it would have to be “seriously arguable that an error has been made (and not merely arguable so that it cannot be said to be fanciful)”.

The right for a litigant to require a refusal of PTA or other application based on the papers to be re-considered at a hearing would be replaced with a discretion for the judge who considers the papers to hold an oral hearing if they think it appropriate as a matter of case management.

The consultation also set out proposals to amend Practice Direction 52C, the principal practice direction governing litigation in the Court of Appeal, to make it “more user-friendly” and to limit the volume of documents before the court.

Lord Dyson said: “In the light of my discussions with the Ministry [of Justice] and in view of the current fiscal constraints, I have no doubt that there is no possibility at the present time of increasing the number of judges in the court.

“Unless urgent and concerted action is taken to ease the pressures on the Court of Appeal we risk damaging not just the international reputation of the court, but its integral role in the proper and efficient administration of justice in this country.”

Other, more minor, reforms are already in hand, such as legislative measures to re-route certain appeals from lower courts to the High Court, and making more use of two-judge courts.

The consultation paper said that until about 18 months ago, the CA managed to absorb the increase in its workload largely by the judges working longer hours. But it is now falling “significantly behind” in dealing with these.

The three main symptoms of the overload were a dramatic increase in waiting time for hearings, an “unacceptable increase” in the amount of work being done by judges out of hours – 48% of the time spent on writing lead judgments was being done out of hours – and greater delay in the preparation and delivery of reserved judgments.

A time and motion study carried out last year showed that, although the number of PTAs and demands for leadership work had increased, “the overwhelming demand upon the time of the members of the court remains the work required for preparing, hearing and judgment writing in connection with full appeals”:

The paper continued: “Although the number of full appeals requiring to be heard has only increased modestly over the last five years, it is probable that the time taken per full appeal has also been rising (albeit there are no statistics from which this can be measured, because there has never before been an attempt to measure the CA’s workload by anything more sophisticated than bare numbers of appeals)…

“The probable reason for this, apart from the ever increasing complexity of the law, is that the court is hearing a smaller proportion of a greatly increased incoming workload as full appeals, and therefore concentrating its attention on the most difficult cases.”

It warned that without reform, the ever-growing case backlog would have grown a further 20% by the end of 2016.