Kerry Underwood

JUDICIAL REVIEWS: NO ORAL HEARING RE APPEAL LAWFUL

leave a comment »


Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

But Court Of Appeal Suggests Courts And Tribunals (Online Procedure) Bill Is Unlawful

In

Siddiqui, R (on the application of) v Lord Chancellor and others [2019] EWCA Civ 1040 (10 May 2019)

the Court of Appeal was considering the lawfulness of the change to the Civil Procedure Rules in 2016 which removed the right to an oral hearing for people seeking permission to appeal to the Court of Appeal against a refusal of permission to apply for judicial review.

The procedure now is that when permission is sought from the Court of Appeal to appeal against a refusal of permission to apply for judicial review, the Court of Appeal may refuse leave to appeal on the papers, without the appellant having the right to have that decision reconsidered at an oral hearing.

Here, the Court of Appeal itself conducting an oral hearing in relation to leave to appeal against refusal of permission to apply for judicial review, accepted that there were likely to be some cases in which permission to appeal was refused on the papers, but where permission would have been granted if an oral hearing had taken place and that in some of those cases the appeal would ultimately have been successful.

The issue here was whether the change in the appeals procedure, brought about by an amendment of CPR 52.5, which prevented such cases from proceeding, was incompatible with Article 6 of the European Convention on Human Rights, or with the common law right of access to justice.

The changes were introduced, not because anyone thought there was any merit in them, but rather to reduce the increasing workload of the Court of Appeal which was leading to significant delays in that court.

Here, the Court of Appeal Judge held that those delays caused injustice and therefore a balance had to be struck between the rule change and the need to reduce delays.

The court said that whilst everyone was entitled to a fair trial, including a fair hearing of an appeal, the case law of the European Court of Human Rights showed that this did not mean that an oral hearing was required at every contested stage of civil proceedings.

The court considered that it was a legitimate and proportionate rule change and therefore was not incompatible with Article 6, nor with the common law right of access to justice.

Consequently the judge dismissed the application for leave to appeal to the full Court of Appeal.

Even before 2016 there was not an absolute right to an oral hearing; if, on the papers, the judge had stated the application to be “totally without merit” there was no right to have that refusal reconsidered at an oral hearing.

The new CPR 52.5(1) removed the right to an oral hearing, providing that where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing except as provided for under paragraph (2) which reads:

“(2) The judge considering the application on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing.”

CPR 52.8 provides that if the single judge considers that there is merit in the application that judge, instead of granting permission to appeal, can decide the matter by granting permission to apply for judicial review so that the matter goes to a hearing at first instance, rather than going to a substantive appeal which might then lead to a reference back to the court of first instance.

One of the points made by counsel for the applicant was that the rule change had been made partly because of complaints by users of the Commercial Court in the delay in appeals being heard from that court by the Court of Appeal, and that very many of the litigants in the Commercial Court are foreign, with neither party having any connection with England and Wales.

Consequently applicants for judicial review were being denied justice for the convenience of commercial litigants who have no connection with this jurisdiction.

This is an increasingly important issue, given the fact that the domestic criminal and County Court systems are close to collapse.

Interestingly, given the highly controversial proposal to have lower value claims decided online, currently proceeding through Parliament in the Courts and Tribunals (Online Procedure) Bill, the Court of Appeal here said:

“The position as to an oral hearing at first instance, as it seems to me, is likely to be materially different.”

That comment was not necessary in relation to this case, as there had been a full oral hearing at first instance in the original application for permission to apply for judicial review.

Here, the Court of Appeal had considered the common law right of access to justice and considered the Employment Tribunal fees case of

 R (Unison) v Lord Chancellor [2017] UKSC 51 .

As everyone is entitled to an oral hearing at first instance at present,  the only reason for this statement can be a warning by the Court of Appeal to the government and Parliament that it may well find any restriction on oral hearings at first instance, as proposed in the Courts and Tribunals (Online Procedure) Bill, to be unlawful.

Significantly the court also quoted from

 R (Refugee Legal Centre) v SSHD [2005] 1 WLR 2219 

where the court said that the executive “is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency, and whether it has done so is a matter for the courts.”

 

Watch this space.

Written by kerryunderwood

June 26, 2019 at 10:37 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: