House of Lords - Explanatory Note

Access to Justice Bill [H.L.] - continued	House of Lords

back to previous text

C. APPEALS AND COURT PROCEDURE (Part IV - clauses 38-48)

SUMMARY

150. This part contains provisions to reform the system of appeals in civil and family cases; to change the arrangements for certain hearings in the High Court; and to prohibit the publication of information likely to identify a child who is subject to proceedings under the Children Act 1989 in the High Court or a county court.

151. In relation to civil appeals, the Bill will:

provide for leave to appeal to be obtained at all levels in the system.
provide that in normal circumstances there will be only one level of appeal to the courts.
introduce an order making power to enable the Lord Chancellor to vary appeal routes in secondary legislation, with a view to ensuring that appeals generally go to the lowest appropriate level of judge.
ensure that cases which merit the consideration of the Court of Appeal reach that court.
give the Civil Division of the Court of Appeal flexibility to exercise its jurisdiction in courts of one, two or more judges.

152. Together, these proposals are intended to ensure that appeals are heard at the right level, and dealt with in a way which is proportionate to their weight and complexity; that the appeals system can adapt quickly to other developments in the civil justice system; and that existing resources are used efficiently, enabling the Court of Appeal (Civil Division) to tackle its workload more expeditiously.

153. The provisions relating to the High Court will:

allow judicial review applications, appeals by way of case stated and applications for habeas corpus which are related to criminal matters, together with appeals from inferior courts and tribunals in contempt of court cases, to be routinely heard by a single judge in the High Court, rather than, as at present, by a Divisional Court of two or more judges.
place on a statutory footing the powers of the High Court to deal with appeals by way of case stated coming from the Crown Court.

BACKGROUND

154. In his 1994-95 Annual Report on the Court of Appeal, the then Master of the Rolls, Lord Bingham, stated that: 'the delay in hearing certain categories of appeal in the Civil Division of the Court of Appeal has reached a level which is inconsistent with the due administration of justice'.

155. In his report Access to Justice (July 1996), Lord Woolf set out his proposals for the reform of the civil justice system. At the heart of his proposals was the allocation of civil cases to "tracks", which would determine the degree of judicial case management. Broadly speaking, cases would be allocated to the small claims track, the fast track or to the multi-track, depending upon the value and complexity of the claim. The principle that underlies this system of tracks is the need to ensure that resources devoted to managing and hearing a case are proportional to the weight and substance of that case. In order that the benefits arising from these reforms should not be weakened on appeal, Lord Woolf recommended that an effective system of appeals should be based on similar principles.

156. In 1996, Sir Jeffery Bowman chaired a Review of the Civil Division of the Court of Appeal (Review of the Court of Appeal (Civil Division) - Report to the Lord Chancellor, September 1997).

157. He identified a number of problems besetting the Court of Appeal. In particular, he noted that the Court was being asked to consider numerous appeals which were not of sufficient weight or complexity for two or three of the country's most senior judges, and which had sometimes already been through one or more levels of appeal. Additionally, he concluded that existing provisions concerning the constitution of the Court were too inflexible to deal appropriately with its workload. To redress this situation Sir Jeffery Bowman's report included recommendations to alter the jurisdiction and constitution of the Court of Appeal. The Lord Chancellor has publicly consulted on proposals to effect certain of these changes (Reform of the Court of Appeal (Civil Division). Proposals for change to Constitution and Jurisdiction, Lord Chancellor's Department, July 1998).

158. Due to the complex nature of routes of appeal in family matters, Sir Jeffery Bowman's report recommended that a specialist committee should examine this area with a view to rationalising the arrangements for appeals in family cases and bringing them in line with the underlying principles for civil appeals. The Family Appeal Review Group, chaired by Lord Justice Thorpe, published recommendations in July aimed at simplifying the current appeals procedure in family cases, applying the principles outlined in Sir Jeffery Bowman's report.

159. The provisions enabling certain matters to be heard by a single High Court judge have the same objective of ensuring that the most appropriate use is made of judicial resources.

160. The provision about the High Court's powers to deal with appeals by way of case stated from the Crown Court follows a recommendation by the Law Commission in its 1994 Report Administrative Law: Judicial Review and Statutory Appeals.

COMMENTARY

Right to appeal

161. Clause 38: Permission to appeal. This clause provides for rights of appeal to be exercised only with the permission of the court, as prescribed by rules of court. At present, permission is required for most cases going to the Civil Division of the Court of Appeal, but not elsewhere. For the future, it is proposed that, with three exceptions, rules will require permission to appeal to be obtained in all appeals to the county courts, High Court or Civil Division of the Court of Appeal. The exceptions are appeals against committal to prison, appeals against a refusal to grant habeas corpus, and appeals against the making of secure accommodation orders under section 25 of the Children Act 1989.

A secure accommodation order under section 25 of the Children Act 1989 enables local authorities, in restricted circumstances, to place children in care into accommodation which is specifically designed to restrict their liberty.

162. Clause 39: Second appeals. This clause provides that, where the county court or High Court has already reached a decision in a case brought on appeal, there will be no further possibility of an appeal of that decision, unless the appeal would raise an important point of principle or practice, or there is some other special reason for the appeal.

Destination of appeals

163. Clause 40: Power to prescribe alternative destination. This clause enables the Lord Chancellor to vary, by order, the routes of appeal for appeals to and within the county courts, the High Court, and the Civil Division of the Court of Appeal. Before making an order, the Lord Chancellor will be required to consult the Heads of Division, and any order will be subject to the affirmative resolution procedure. The present intention is that the following appeal routes will be specified by order:

in fast track cases heard by a district judge, appeals will be to a Circuit judge;
in fast track cases heard by a Circuit judge, appeals will be to a High Court judge;
in multi-track cases, appeals of interlocutory decisions made at first instance by a district judge will be to a Circuit judge, by a master or Circuit judge to a High Court judge, and by a High Court judge to the Court of Appeal; and
in multi-track cases, appeals of final orders regardless of the court of first instance, will be to the Court of Appeal.
The Heads of Division are the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division.
A decision is interlocutory where it does not determine the final outcome of the case.

164. The Lord Chancellor will also use this power to determine routes of appeal in family matters. Whilst his proposals for civil non-family appeals have been subject to widespread consultation, this has not been the case for family appeals. Although the Lord Chancellor proposes that the appeal routes in family cases will be based upon similar principles, the exact way in which the Lord Chancellor will use this power in family cases will be subject to further consultation.

165. Clause 41: Assignment of appeals to Court of Appeal. This clause provides for the Master of the Rolls, or a lower court, to direct that an appeal that would normally be heard by a lower court be heard instead by the Court of Appeal. This power would be used where the appeal raises an important point of principle or practice, or is a case which for some other special reason should be considered by the Court of Appeal.

Civil Division of Court of Appeal

166. Clause 42: Composition. This clause makes flexible provision for the number of judges of which a court must be constituted in order for the Court of Appeal to be able to hear appeals. Currently, section 54 of the Supreme Court Act 1981 provides that the Court of Appeal is constituted to exercise any of its jurisdiction if it consists of an uneven number of judges not less than three. In limited circumstances it provides that a court can be properly constituted with two judges. This clause allows the Master of the Rolls, with the concurrence of the Lord Chancellor, to give directions about the minimum number of judges of which a court must consist for given types of proceedings. Subject to any directions, the clause also allows the Master of the Rolls, or a Lord Justice of Appeal designated by him for the purpose, to determine the number of judges who will sit to hear any particular appeal.

167. Clause 43: Registrar of Civil Appeals. This clause abolishes the post of registrar of civil appeals. Section 58 of the Supreme Court Act 1981, which provided for functions incidental to any cause or matter pending before the Civil Division of the Court of Appeal (not involving the determination of an appeal) to be carried out by a single judge or by the registrar of civil appeals, is removed by the Bill. Section 58 is no longer necessary in respect of single judges because clause 42 now provides for the Court of Appeal to be constituted for any of its jurisdiction, in courts of one or more judges, subject to directions of the Master of the Rolls reached with the concurrence of the Lord Chancellor.

The registrar of civil appeals is a judicial officer provided for by section 89 and Part II of Schedule 2, of the Supreme Court Act 1981. He currently carries out both judicial and administrative functions. The administrative functions will be taken over by a new Head of Civil Appeals, shortly to be appointed. Under Schedule 1, subsection 2 of the Civil Procedure Act 1997, it is possible for rules of court to devolve judicial functions to officers or other staff of the court.

Prepared: 3 december 1998