CJR Interim Report, Section K. Possible Reforms In Specific Areas, K18. Appeals

K18.3. Case managing appeals and efficiency

540.	It is important that a requirement of leave to appeal should generally not cause the parties to incur more or as much in costs as they would incur in a system where appeals do not require leave. To this end, the following rules and practice directions have been adopted in England and Wales :-

540.1	It is provided that an application for leave should be made orally at the hearing at which the decision to be appealed against is made. ^{(Note 474)} Such an application is unlikely to add to the costs incurred.

540.2	If leave is refused and the intended appellant wishes to seek leave from the Court of Appeal, that court can ^{(Note 475)} (and usually will ^{(Note 476)}) deal with the application without a hearing.

540.3	However, if leave is refused on paper, the would-be appellant is entitled to seek an oral hearing before the Court of Appeal on his application for leave. As the learned editors of the White Book put it :-

		"The overall effect of these provisions is that every disappointed litigant at first instance can, one way or another, achieve at least a brief hearing in the appeal court, so that the main thrust of his complaint can be ventilated orally." ^{(Note 477)}

540.4	If the matter comes before the Court of Appeal for an oral hearing, it may decide that the respondent is not required to attend and may not even inform him that the hearing is taking place. ^{(Note 478)}

540.5	Such oral hearings are generally of a limited duration. ^{(Note 479)}

541.	There may be a case for going further. Experience shows that in a relatively small but still a not insignificant number of cases, the appeal is so plainly and obviously unmeritorious that its pursuit in the Court of Appeal is tantamount to an abuse of the appeal process. In such cases, a dismissal of the application for leave without affording the applicant an oral hearing may be justified.

541.1	The court is entitled to protect its own processes from abuse. In such cases, an appropriate procedure to dispose of it without a hearing spares the other party the expense - commonly irrecoverable in practice - of attending (often by counsel) at the leave application where it is almost certain that he would not be called on to answer the applicant.

541.2	There is some precedent in rule 7 of the Hong Kong Court of Final Appeal Rules which enables the Registrar of his own motion or on that of the respondent, to require the applicant to show cause why the application should not be dismissed. If an attempt is made to show cause (this being done in writing) the document is considered by the Appeal Committee which either permits the application to proceed to an oral hearing or dismisses it on the papers.

541.3	It is true that in cases involving applications to the Court of Final Appeal the applicant will already have had two hearings (before the CFI and Court of Appeal), whereas the party seeking leave to appeal to the Court of Appeal will only have had one bite at the cherry. However, the existence of such a power may still be justified in those cases where entertaining the application would be a misuse of the Court of Appeal's process.

541.4	Readers are consulted as to the desirability of giving the Court of Appeal power to refuse leave to appeal to itself without a hearing (on the assumption that a requirement of leave is introduced): Proposal 47.

542.	Where leave is given, it is important that the substantive hearing of an appeal should be efficiently managed so that the parties come fully prepared and take no longer than necessary in arguing the appeal.

542.1	Under the CPR, on fixing a date for the appeal, the Court of Appeal sends a questionnaire to the appellant who must return it providing the court with information as to the state of preparation for the appeal and, if the appellant is legally represented, the time estimate for the hearing of the appeal provided by the advocate who is to argue the appeal. ^{(Note 480)} The respondent (who receives a copy of the questionnaire) must promptly give notice of any disagreement as to the time estimate.

542.2	The learned editors of the White Book stress the crucial importance of accurate time estimates for the efficient planning and listing of hearings but acknowledge that it is difficult to be accurate in such estimates. They go on to state :-

		"Despite these handicaps, the opposing advocates must exercise judgement, draw on their own experience and, most importantly, talk to each other about the likely course and length of the hearing. Advocates who make no serious effort to estimate the length of an appeal hearing are in dereliction of their duty to the court." ^{(Note 481)}

542.3	Where judgment is reserved and the Court of Appeal expects to be addressed as to consequential orders when handing down judgment, the practice direction sets out a procedure for a copy of the judgment to be given to the legal advisers about two days in advance, with an embargo against the contents being communicated to the parties themselves until an hour before the listed time for pronouncement of the judgment. This is aimed at ensuring that when the court convenes, the advocates will be ready to deal efficiently with the outstanding points. ^{(Note 482)}

543.	Readers are consulted as to whether similar rules aimed at improving efficiency in the hearing of substantive appeals should be adopted: Proposal 48.

Notes

474	52PD §4.6 <back>

475	52PD §4.11 <back>

476	White Book 52.3.7. <back>

477	White Book 52.3.8. <back>

478	Ibid. <back>

479	White Book 52.3.30. Prior to implementation of the CPR, the Court of Appeal issued a Consolidated Practice Direction providing, in §2.5 as follows: "In the absence of specific directions, the Court of Appeal will expect oral argument in support of applications for permission to appeal, or renewed applications for permission to apply for judicial review, to be confined to a maximum of 20 minutes." [1999] 1 WLR 1027 at 1032. <back>

480	52PD §§6.5 and 6.6. <back>

481	White Book 52.3.32. <back>

482	52PD §§15.12 to 15.14. All such advance judgments are marked "Unapproved judgment: No permission is given to copy or use in court" and a litigant in person is given the advance copy at the same time as legal advisers receive them. <back>