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CA rejects challenge to abolition of oral permission hearings

Marshall: Ruling fails to address vires issue

The Court of Appeal has rejected a challenge to the abolition of most oral permission-to-appeal hearings before it.

Since 3 October 2016, permission to appeal in the Court Appeal has been a purely paper exercise, unless the judge looking at the papers believes that deciding permission needs a hearing.

Sir Timothy Lloyd, a former lord justice of appeal, said the rule change was “miles away” from those in which a change of procedure infringed the common law right of access to justice.

“Given the constraints on the number of judges, a balance had to be struck between the modification of the procedure for permission to appeal and the need to reduce so far as possible the delays in hearing and determining appeals.

“That, as it seems to me, is a paradigm case for the exercise of an executive decision within the range of the margin of appreciation as to how to ensure a proper, fair, just and efficient system for the administration of justice in civil appeals.”

Sir Timothy said that everyone was entitled to a fair hearing of their appeal under article 6 of the European Convention on Human Rights, but this did not mean that an oral hearing had to take place “at every contested stage” of civil proceedings.

“No system of justice can be perfect. While I can well understand the opposition that was expressed in the consultation process to the change then proposed and now implemented, it seems to me that it was clearly legitimate and proportionate for the rule-makers to make this change, bearing in mind the need to take serious steps to reduce the growing delay in the disposition of substantive appeals.

“Those delays were the source of injustice in themselves.”

Delivering judgment in R (on the application of Siddiqui) v Lord Chancellor and others [2019] EWCA Civ 1040 [1], Sir Timothy said the argument of counsel for Mr Siddiqui that there could have been “a less drastic change” was unconvincing. “The change did not eliminate hearings altogether, although they will no doubt be rare.

“His argument that the government should have devoted additional resources to the appeals system by funding an increase in the number of Court of Appeal judges seems to me not to be sustainable.”

Sir Timothy was ruling on an application for permission to appeal against the refusal by Mr Justice Cutts earlier this year of an application for judicial review by Faiz Siddiqui, who was challenging Oxford University in a case involving allegations of negligently inadequate history teaching.

Sir Timothy said he was chosen to hear the case because he had retired from the Court of Appeal before rule 52.5 of the Civil Procedure Rules was amended in 2016.

He said that before the amendment, it had been the case “for a long time” that if permission to appeal was refused by the Court of Appeal on the papers, the applicant was entitled “in almost all cases” to an oral hearing.

Under the new rule, the judge can direct that the application is determined at an oral hearing if it “cannot be fairly determined” on paper.

Mr Siddiqui argued that this was incompatible with article 6 and involved a breach of the common law principle of ensuring access to justice – arguments which Sir Timothy rejected.

In article last month for Litigation Futures [2], Paul Marshall and Philip Coppel QC of Cornerstone Barristers argued that the Civil Procedure Rule Committee had no mandate to make the change, which they said sacrificed “a central tenet of the common law judicial process − a fair hearing” in order “to get a petty efficiency gain”.

Commenting on the ruling, Mr Marshall said Sir Timothy had “failed to address the vires issue” and other matters” he and Mr Coppel had raised.

He continued: “Further, the judge’s characterisation of the applicant’s submissions as proceeding ‘on the footing that nothing less than the closest possible approximation to perfection in the process of appeals can satisfy article 6 or the common law right of access to justice’ might appear to be a mis-characterisation.

“It was acknowledged that the new rule caused (absolute) actual injustice to those whose appeals are refused on paper but hitherto would have been permitted on a renewed oral hearing (abolished) and would have been successful on appeal.”