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A procedure designed to avoid, so far as possible, separate oral hearings of
applications for leave to appeal should be adopted. The approach outlined below has
the support of the judges of the Court of Appeal.
(a)
The question of leave to appeal, like costs, should routinely be addressed
whenever a judge hears an interlocutory application. If the application is
disposed of ex tempore, the judge ought to decide there and then whether to
grant leave to appeal after hearing the parties on that subject.
(b)
If the judge is to hand his decision down later, he should invite the parties to
address him in advance on whether leave should be granted whether the
application succeeds or fails (without necessarily having decided whether to
appeal if the decision goes against them). He should then deal with leave to
appeal in the decision handed down without further submissions. If the lateness
of the day makes it inconvenient to enter into a discussion of leave to appeal at
the end of the argument and the decision is to be handed down, the judge might
invite the parties to file written submissions on this question. Having just heard
the application, the judge ought to be well placed to make a decision without
much further assistance.
(c)
Adopting the foregoing procedure, a fresh hearing to apply for leave to appeal
before the CFI judge should hardly ever be needed.
(d)
Where the CFI refuses leave, the applicant should be entitled to apply in writing
to the Court of Appeal which should generally deal with the leave application
on the papers and without an oral hearing. The application for leave should be
accompanied by the applicant's brief written submissions setting out the
grounds for seeking leave and, within a specified time after being served with
the papers, the respondent should file any brief submissions he wishes to make
resisting leave.
(e)
When dealing with such leave applications on the papers, the Court of Appeal
would be duly constituted by two Justices of Appeal, as provided for by section
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