The current test for appeals from the Upper Tribunal to the Court of Appeal is “not strict enough to prevent misuse” of the system by those wanting to benefit from delays caused by “hopeless challenges”, the Ministry of Justice (MoJ) has said.
The MoJ is proposing a new ‘reasons of exceptional public interest’ for appeals from the Upper Tribunal and an end to the right to appeal to the Court of Appeal where judicial reviews are assessed as ‘totally without merit’, in a bid to reduce the burden on the latter.
The government insisted that it did not intend to restrict access to justice.
In a consultation paper on reforms to permission to appeal from the Upper Chamber, the MoJ said judges could currently “spend exceptional time reviewing an individual case on the same grounds of appeal on multiple occasions”, while in most cases reaching the same decision.
“This leads to backlogs and increases the overall time it takes to dispose of a case.”
To tackle this, the MoJ set out proposals to cut the number of “second appeals” or cases where the Upper Tribunal has already ruled on an appeal, and the number of appeals in judicial reviews certified by the Upper Tribunal as “totally without merit”.
The current “second appeals” test requires all appeals to the Court of Appeal from the Upper Tribunal to have a “real prospect of success” or “some other compelling reason” for the case to be heard.
The new test would allow the losing party to appeal to the Court of Appeal only if there were “reasons of exceptional public interest”.
If the Upper Tribunal was “uncertain whether to grant or refuse permission to appeal”, the case could be referred to the Court of Appeal for determination.
The Upper Tribunal judge would be “better as the main decision-maker” in these cases because of his or her expert knowledge, helping him determine what needed to be clarified on a point of law.
The new test would “maintain a ‘safety valve’ to permit the opportunity for review by the Court of Appeal in rare cases which involve very important wider issues”, while safeguarding against “something going very badly wrong in the tribunals below”.
The MoJ said “very few” second appeals from the Upper Tribunal succeeded, suggesting that “the current test is not strict enough to prevent the misuse of the system by those who see an advantage in the delay caused by bringing hopeless challenges”.
In terms of judicial review applications certified as “totally without merit”, the MoJ said that “very few” of these decisions were overturned by the Court of Appeal.
Only three of the 67 applications for permission to appeal in “totally without merit” cases succeeded last year, and all three cases were rejected by the Court of Appeal after a full hearing.
The MoJ said that where the Upper Tribunal had certified a judicial review as totally without merit, “the applicant should not be able to refer the question to the Court of Appeal”.
Instead the applicant would be “able to refer the matter to a second Upper Tribunal judge for a reconsideration of whether or not to grant permission”.
The MoJ added: “The Court of Appeal is a precious resource. These reforms are designed to ensure that resource is focused on the cases which most merit review at that level.
“They are also necessary given the inevitable additional pressure that predicted Brexit issues will give rise in the volume of legal actions heard in the Court of Appeal which require their necessary specialist expertise.”
Introducing the consultation paper, justice minister Chris Philp said the current appeal system reduced the effectiveness of courts and tribunals and damaged the UK’s international competitiveness as a centre for dispute resolution.
“Our proposals are aimed towards making the courts and tribunals system work better for its users and offer greater value for money for the taxpayer.”