In his report "Access to Justice", Lord Woolf emphasised the importance of a civil justice system to the maintenance of a civilised society. He also identified what he saw as the basic problems of the system - expense, delay and complexity - and made an extensive series of recommendations to deal with them. Because the Lord Chancellor had already announced a review of civil appellate procedure, he did not deal in detail with the Court of Appeal (Civil Division) (CA) although he did make certain consequential recommendations. He stressed, however, that an effective system of appeals was essential and that any benefits stemming from his recommendations could be diluted on appeal if the principles of his report did not apply.
The CA has certainly been experiencing problems in spite of the best efforts of everyone involved. Chapter 1, "Current situation and reasons for the Review", shows the way the workload of the CA has been increasing and the extent of the delays. Based on averages, the time between the setting down and final disposal of 70% of appeals in 1996 had increased to 14 months. The corollary of this is that 30% of appeals took over 14 months and indeed at the end of 1996, there were some appeals that had been outstanding for over 5 years. This period takes no account of the time between the judgement in the court of first instance and the setting down of the appeal in the CA nor of the time taken by any application for leave to appeal, where leave is required. Urgent cases are usually heard very quickly but some cases and types of case take far longer than the average.
The situation is clearly most unsatisfactory as the previous Master of the Rolls pointed out in his 1994/1995 report on the CA:
"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. On current projections there is every reason to think that over the next few years the situation will (if nothing effective is done) get worse and not better."
We identified possible reasons for the increasing workload and delays, and the remedies tried so far. We concluded that there seemed to be three main ways in which delays may be reduced and the workload eased:
increase the number of Lords Justices to deal with the increased workload
alter the jurisdiction of the CA so that fewer cases come to it
improve the way the CA works so that it can deal with its caseload more quickly.
Our view is that increasing the number of Lords Justices should only be resorted to if our recommendations in the other two areas do not solve the problems of the CA.
Before exploring the two remaining avenues in detail, we considered what principles should underlie a civil appeals system (Chapter 2). We confirmed that the principles identified by Lord Woolf as those which the civil justice system should meet in order to ensure access to justice were fully applicable to appeals and we have sought to reflect them in our recommendations. We also considered the question whether there should be a right of appeal in civil cases. Our conclusion is that any dissatisfied party is entitled to have their case looked at by a higher court so that it can consider whether there appears to have been an injustice. In that event, it will allow an appeal to proceed but the appeal system should not be seen as an automatic further stage in a case.
The purpose of an appeals system, in our view, is not simply to correct wrong decisions as far as they concern the parties to the dispute; there is also a public purpose which is to ensure confidence in the administration of justice and, in appropriate cases, to clarify the law, practice and procedures and to help maintain the standards of first instance courts and tribunals.
The application of the Woolf principles led us to the conclusion that more than one level of appeal cannot normally be justified. In addition, we concluded that certain appeals which now reach the CA should normally be heard at a lower level provided that they are heard by a court or judge with a superior jurisdiction to that which made the first instance decision. Such appeals could reach the CA, however, where there is an important point of principle or practice or one which for some other special reason should be considered by the CA.
In Chapter 3, we consider the question of leave to appeal. In principle, if there is to be no automatic right of appeal, a process is required to determine whether or not there are any grounds on which an appeal should be allowed to proceed. In addition, there are other potential benefits from extending the leave requirement. These include not only the possible saving in time but also the opportunity for judicial case management in such matters as giving specific directions, determining the length of the hearing and allocating a particular Lord Justice to oversee the case. We have therefore recommended that the leave requirement should be extended to all but a very limited category of cases but that appropriate statistics should be kept to monitor the effect on court time so that it can be seen whether any modification of this requirement is necessary.
When an application is made for leave to appeal, it should be accompanied by expanded grounds of appeal which are equivalent, as far as practicable, to a skeleton argument, together with a core bundle of supporting papers. Without this, the task of the judge hearing the application is very hard. Where leave has not been applied for or has been refused in the court of first instance, there should be a strict timetable for applications to the CA. Steps should be taken to ensure that transcripts of judgements are available promptly in all courts when they are required.
Applications for leave to appeal should be served on the respondent who would have the right to submit a skeleton argument in reply but would in normal circumstances not be encouraged to so. Where leave was granted, however, the respondent would be required to submit such a skeleton argument within 28 days. The appellant would have the opportunity to submit one further skeleton but would not be allowed to adduce new grounds of appeal thereafter without the leave of the court.
These procedures should mean that cases were ready to be heard at a much earlier date. They should also enable the judges to limit oral argument to the salient points of the case and to impose time limits if appropriate. Where the parties and the CA agreed, the case could be decided on the papers alone. We also believe that the new procedures will allow the balance of judicial time to be changed so that the Lords Justices will have more reading time and less sitting time. With well prepared cases and skeleton arguments, this is likely to save time overall.
Chapter 4 sets out our recommendations for changes to the jurisdiction of the CA. We believe that an obvious example of the type of appeals which should be dealt with at a lower level in the system, provided the Woolf recommendations are implemented, is "fast track" cases. By definition, these should be the simpler cases and it should not normally be necessary for the full weight of the CA to be brought to bear on them. There will be clear advantages if appeals for fast track cases can be heard locally by a single judge, rather than by a number of judges, and by a judge of more appropriate weight for the case. The whole procedure should be quicker and simpler for everyone involved.
Our recommendation for fast track cases depends on the implementation of the Woolf recommendations. If they are not implemented in its present form, it will be necessary to develop alternative means of identifying the simpler and more straightforward cases where appeals should be dealt with locally and not in the CA.
So far as cases which have already been through one level of appeal are concerned, we do not believe that certain bankruptcy cases or the small number of civil appeals under the case stated provisions should normally come to the CA. The same may apply to certain family cases but the jurisdiction is complex and this needs further consideration.
Interlocutory appeals, so far as they are procedural in nature and do not effectively finally determine the matter, should be dealt with quickly and locally. We made recommendations designed to achieve this and also propose that the Civil Procedure Rules Committee should give consideration to a rule which distinguishes better between decisions which dispose of the whole or part of a case and other decisions.
Having examined the jurisdiction of the CA to see whether it might be possible to reduce the number of cases coming to it, we then went on to consider how the way the CA works might be improved so that it can get through its workload more quickly. We examined first the constitution of the CA, that is to say, the number of judges required to sit to hear any particular matter (Chapter 5).
We believe that appeals in the lower courts, which will cover the simpler cases should be heard by a single judge. If simpler appeals are heard in the lower courts, appeals coming to the CA are likely to be more complex. Because of this, in general we think it would usually be more appropriate for them to continue to be heard by two or three judges as at present rather than a single judge. We think, however, that there may be more scope for two judge courts rather than three judge courts and make suggestions about the circumstances where this might be suitable for further consideration. We also believe there is more scope for courts with specialists in particular aspects of law to hear cases of that kind but think there should always be at least one non-specialist.
So far as the constitutions necessary to hear applications for leave to appeal are concerned, we believe all applications should be considered initially by a single judge on the papers. He would then have a number of options open to him which should be the same for represented and unrepresented applicants. Renewed applications for leave to move for judicial review should be dealt with in exactly the same way.
Our next area for enquiry was the management of the work of the CA and the legal and administrative support available to it. We asked first about the management of the work of the CA and about responsibilities within it (Chapter 6). We wanted to know who was responsible not only for the quality and fairness of the judgements given in the CA but also for the speed, efficiency and economy with which the work of the CA is conducted.
Our conclusion is that the Master of the Rolls, as President of the CA, has this overall responsibility. Since, as a result of the need for judicial independence, he is only primus inter pares and has no direct authority over the other Lords Justices, he shares this responsibility with them and has to achieve his objectives through his powers of persuasion, the force of his arguments and the strength of his personality. He is helped immeasurably by the very strong sense of team spirit which exists among the Lords Justice
The Master of the Rolls has the help of the Civil Appeals Office and the Registrar in carrying out his responsibilities. Although the Civil Appeals Office is accountable to the Court Service for the resources it uses, our view is that it is primarily responsible to the Master of the Rolls and the members of the CA for preparing cases for hearing as quickly and efficiently as possible and for making the job of the members of the CA as easy as possible. Our impression is that all those working in the Civil Appeals Office are very hard working and dedicated. Nevertheless, the present structure of the Civil Appeals Office is not best suited to efficient and effective case management.
The position of the Registrar of Civil Appeals is unusual. In spite of being head of the Civil Appeals Office, he has no line responsibility for the staff working in it. Indeed, one group of staff in the office, the qualified lawyers, does not even report to the Chief Clerk who is the Court Manager. The Registrar was appointed primarily as a judicial officer rather than a manager.
We recommend that there should be a single administrative head of the Civil Appeals Office. His or her most important attributes should be sound managerial and administrative skills. He or she should have line responsibility for all the staff working in the office and should be able to delegate and to motivate those working for him/her. It would be advantageous, but not essential, if he or she were a lawyer. Such a single new head of the Civil Appeals Office, who would be accountable to the Head of the Court Services Agency as well as to the Master of the Rolls, should be appointed as soon as practicable.
The Registrar also exercises a number of judicial functions. In our view, these functions should usually be carried out by two designated senior legal officers within the Civil Appeals Office under the supervision of the Lord Justices. When this happens, there will be no requirement for a judicial post of Registrar of Civil Appeals. When the existing officer holder leaves office, he should not be replaced.
Cases need to be managed as actively as possible. Much of this "case management" should in our view be administrative and be carried out by members of the Civil Appeals Office. To achieve this, the Office staff should be divided into teams, each responsible for a particular kind or kinds of appeal and for the progress of those appeals from receipt in the Office to final disposal. The teams would be mixed teams of administrative staff and lawyers; their leaders could, if they demonstrated the necessary qualities, be lawyers. The precise arrangements, including the relationships with judicial assistants and the clerks to the Lords Justices, should be worked out by the new head of the Civil Appeals Office.
We examine next the rules, procedures and working methods of the CA (Chapter 7). In general, we believe that there needs to be a change in the culture of many of those using the CA and in the attitudes of those in the Civil Appeals Office dealing with appeals. Instead of trying to ensure that appeals and the papers necessary to support them are ready by a date shortly before the hearing, appeals should be prepared ready for hearing at the earliest practicable date. Only if this is done will it be possible to plan ahead for the hearing of the appeal, to ensure that it is allocated appropriate time and a suitable constitution, to give the judges hearing the case sufficient time to read and prepare for a case in advance and to reduce substantially the backlog of cases.
Information technology has the potential to revolutionise the way in which the courts generally, and everyone involved with litigation, work. It should help to achieve much greater efficiency and productivity. In Chapter 8 we explore ways in which information technology could be used to better effect in the Court of Appeal. We recommend that, because of its particular characteristics and the commitment of the judges, the Court of Appeal should be used as a pilot site for the development of new systems. For this to succeed, a detailed medium term plan is essential.
Litigants in person present a particular challenge to the CA. In Chapter 9 we discuss how to be fair to those who have arguable appeals but may not be good at expressing them, whilst eliminating unarguable appeals from the system at the earliest possible stage so that they do not waste the time and money of everyone involved. We make a series of recommendations designed to help litigants in person understand better the reasons for the original decision, what an appeal can and cannot do and the risks associated with it, how to go about appealing, what the process involves and when and where to seek help and advice in the preparation of their cases.
So far as legal costs are concerned (Chapter 10), we believe that cases in the CA are likely to be more homogeneous than in the lower courts and that there may therefore be better scope for the introduction of a scheme to control recoverable costs through a system of fixed or benchmark costs. We recommend that the "special" circumstances in which security for costs may be ordered in the CA should be limited. We also recommend that in exercising discretion on the costs to be awarded, the CA should consider whether the way the appeal was conducted was appropriate.
Whatever changes are made in the CA, it will need a mechanism for monitoring and evaluating its workload and for considering whatever further or different steps are required to enable it to meet its objectives. We recommend an improved committee structure to assist the Master of the Rolls to do this. We also recommend the introduction of a proper management information system to give the CA and those working in it the information they need to monitor and evaluate its work.
In Chapter 12, we consider the resources implications of our proposals. We estimate that our proposals on jurisdiction and on applications for leave to appeal have the potential to reduce the burden of the CA by up to 900 appeals and over 150 applications a year. However, in practice the effect of the reduction is likely to be less substantial, because of factors such as the time required to implement our proposals and the fact that it will be the simpler cases which do not reach the CA. Nor would it take effect immediately because of the need to reduce delays and eliminate the backlog. Undoubtedly, however, if our proposals are as successful as we believe they can be, it will in due course be possible to make significant savings. These will partly be the result of increased efficiency in the CA and partly the result of transferring cases from the costly procedures of the CA to less expensive parts of the civil justice system where they can be dealt with more appropriately.
We do not believe that our proposals will result simply in the transfer of the burden from one hard pressed part of the system to another. The Woolf principles envisaged that there would need to be an increase in the number of district judges to deal with fast track cases. Provided this happens, the additional burden placed on the High Court will be limited to a comparatively small number of interlocutory appeals.