The Civil Procedure Rule Committee had no mandate to abolish permission-to-appeal hearings back in 2016, a newly published opinion has argued.
In an article published today by this website, Paul Marshall and Philip Coppel QC of Cornerstone Barristers argue that “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”.
They also outline concern that legislative changes could put permission decisions in the hands of non-judges in future.
Since 3 October 2016, permission to appeal in the Court Appeal has been a purely paper exercise, unless the judge looking at the papers is of the opinion that deciding permission needs a hearing.
The barristers dispute the argument in the consultation paper that laid out the justification for the change that no subordinate or primary legislation was required to abolish permission-to-appeal hearings.
They argue that section 54 of the Access to Justice Act 1999 – which enables rules of court to provide that a right of appeal may be exercised only with permission – does not confer power on the rule committee to abolish the right to be heard on a permission application.
“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,” they say.
“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.”
Mr Marshall and Mr Coppel say that the 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.”
Further, abolishing permission-to-appeal hearings impedes the right of access to the Court of Appeal: “It cannot be squared with authority such as UNISON,” they say.
The barristers also express concern that, as a result of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018, 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.”