Chapter 2: Principles underlying a civil appeals system
Chapter 3: The requirement for leave to appeal
Chapter 4: Jurisdiction
Chapter 5: Constitution
Chapter 6: Managing the work of the CA - legal and administrative support
Chapter 7: Rules, procedures and working methods
Chapter 8: Information technology in the Court of Appeal
Chapter 9: Litigants in person
Chapter 10: Legal costs
Chapter 11: Monitoring and evaluation
A civil appeal should be dealt with in ways which reflect the principles which Lord Woolf recommended the civil justice system should meet.
An appeal should not be seen as an automatic further stage in a case.
An individual who has grounds for dissatisfaction with the outcome of his or her case should always be able to have the case looked at by a higher court so that it can consider whether there appears to have been an injustice and, if so, allow an appeal to proceed.
An appeal process should ensure that, so far as is practical, uncertainty and delay are reduced to a minimum.
There is a private and a public purpose of appeals in civil cases.
The private purpose is to correct an error, unfairness or wrong exercise of discretion which has led to an unjust result.
The public purpose is to ensure public confidence in the administration of justice and, in appropriate cases, to:
clarify and develop the law, practice and procedure; and
help maintain the standards of first instance courts and tribunals.
Appeals should be dealt with in ways that are proportionate to the grounds of complaint and the subject matter of the dispute.
More than one level of appeal cannot normally be justified except in restricted circumstances where there is an important point of principle or practice or one which for some other special reason should be considered by the CA.
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 the court or judge who made the first instance decision.
Generally, appeals should not be heard by courts consisting only of judges from lower courts sitting as deputies in the higher court.
On some occasions, the court hearing an appeal will need to include judges with special expertise.
The requirement for leave to appeal should be extended to all cases coming to the CA except for:
appeals against committal orders or refusals to grant habeas corpus, as these cases involve the liberty of the subject;
adoption cases; and
child abduction cases.
An application for leave to appeal should continue to be made to the court below either at the moment of decision or subsequently, provided it can be placed before the judge who made the decision against which it is sought to appeal.
The CA should issue guidance to the lower courts on when it is expected that leave should be granted or refused.
If further extension of the requirement for leave does not result in a corresponding increase in success rates, consideration should be given to requiring that applications for leave to appeal must all be made to the CA.
When an application for leave to appeal is made to the court below, brief reasons for granting or refusing the application should be given by that court.
The test laid down by the CA in Smith v Cosworth Casting Processes Ltd [1997] Law Society's Gazette 12 March 1997 sets out the appropriate basis for considering whether or not leave to appeal should be granted.
Leave to appeal against an interlocutory decision should be granted only if it is an appropriate stage of the proceedings for the particular appeal to be heard. The CA should consider how the existing test for granting leave can be modified to reflect this.
In cases in which appeal would not normally lie to the CA the court should refuse leave unless it is satisfied that there is an important point of principle or practice or one which for some other special reason should be considered by the CA.
Appeals against procedural orders should be dealt with speedily and, where possible, locally.
The Civil Procedure Rules Committee should consider whether the current Order 59, rule 1A could be replaced by a rule which will identify those decisions which dispose of the whole or part of a case, and other decisions.
There are three situations where appeals which would normally lie to a lower court should reach the CA:
when an individual appeal raises an important point of principle or practice or one which for some other special reason should be considered by the CA;
when the Master of the Rolls directs that, in certain cases or groups of cases giving rise to the same or similar issues, appeal should lie direct to the CA;
when Parliament sanctions that a particular class of appeals should in future be heard by the CA.
Appeals in fast track cases should be heard quickly and locally by a Circuit judge where the case was heard by a district judge and by a High Court judge where the case was heard by a Circuit judge.
Appeals in fast track cases should not be by way of a complete rehearing.
Final appeals in multi-track cases should lie to the CA.
Appeals from interlocutory decisions in multi-track cases to be tried by a Circuit judge should lie:
from a district judge to a Circuit judge; or
from a Circuit judge to a High Court judge.
Appeals from interlocutory decisions in multi-track cases to be heard by a High Court judge should lie:
from a district judge, Master or Circuit judge to a High Court judge; or
from a High Court judge to the CA.
The routes of appeal in family cases should be examined carefully by a specialist committee, with a view to rationalising them and bringing them in line with our underlying principles for appeals.
In bankruptcy cases where there has already been an appeal to a single judge of the Chancery Division, no further appeal should lie to the CA.
The tribunals structure should be examined in detail, with a view to bringing the arrangements for appeals in line with the principles we have recommended should underlie the civil appeals system.
An appeal by way of case stated in a civil case should generally go no further than the Divisional Court or the nominated High Court judge.
Appeals from decisions of Circuit judges on appeals under s.204 Housing Act 1996 should lie to the CA.
There should be a power to appoint lawyers of outstanding distinction as academics or practitioners to sit as members of the CA on occasions.
There should be a discretion to list cases before a single member of the CA.
Consideration should be given to the greater use of two judge courts in appropriate cases where no fundamental point of principle or practice is involved such as:
where the case had been heard in the High Court but the amount under consideration came within the county court limit;
interlocutory family appeals;
appeals from tribunals.
Where specialist knowledge of law, procedure or subject matter is an advantage:
the constitution should usually include one or two members with the appropriate specialist knowledge; but
the constitution should not usually consist solely of specialist members.
Where a constitution contains specialist members, as many cases as possible within the particular specialist area should be listed before them.
Applications for leave to appeal should be considered initially by a single Lord Justice on the papers. That Lord Justice might then do one of four things:
allow the application on the papers; or
decide to hear the application on his or her own in open court; or
choose to hear the application with another member of the CA; or
if he or she were minded to refuse, he or she should write giving reasons but offer to hold an oral hearing. If the offer were not accepted, the application would be dismissed on the papers with no right of renewal.
A renewed application for leave to move for judicial review in the CA should in future be dealt with in the same way as an application for leave to appeal.
Any appeal presently heard by the CA which in future is heard by the High Court should be placed before a single High Court judge.
Constitutions should on occasions sit together for longer than three weeks.
Constitutions should be fixed as much in advance as possible.
The Master of the Rolls has overall responsibility for the speed, efficiency and economy with which the work of the CA is conducted. Each Lord Justice, although individually responsible for his or her judicial decisions, is responsible for assisting the Master of the Rolls in this task.
The role of the Court Service is to assist the Master of the Rolls in achieving his objectives as President of the CA.
The Civil Appeals Office is responsible to the Master of the Rolls and the members of the CA for:
preparing cases for hearing quickly and efficiently;
providing a good service both to the members of the CA and to Court users.
In order to achieve its purpose the Civil Appeals Office must ensure that:
members of the CA receive their papers in good time and in good order; have adequate legal support; and are not asked to do work which could be delegated appropriately to others, not necessarily of judicial rank;
Court users receive a courteous, efficient and accessible service;
Office procedures are as straightforward and comprehensible as possible;
there is an effective form of case management, with clear targets and the elimination of avoidable delay;
there is proper monitoring and evaluation of the workload of the CA, so emerging trends and problems can be identified at the earliest possible stage.
There should be a single administrative head of the Civil Appeals Office.
It would be advantageous, but not essential, for the head of the Office to be a lawyer, but above all else he or she must have sound managerial and administrative skills.
The head of the Civil Appeals Office must be able to:
keep overall control of the caseflow and ensure that systems are in place which allow him or her to do so;
set appropriate targets and make sure that they are met;
arrange the constitutions of the court as much in advance as possible;
seek to ensure that cases are ready for listing and, once listed, are not taken out except in the most exceptional circumstances;
ensure that his or her own workload is under control so that he or she is not overloaded and contributing to delay;
delegate work to the appropriate members of staff and ensure that they have the necessary skills to deal with it.
The head of the Office must be accountable to the Chief Executive of the Court Service and must have line management responsibility for every member of staff in the Civil Appeals Office, including the lawyers and the judicial assistants.
The judicial functions of the Registrar of Civil Appeals should normally be carried out by two designated senior legal officers within the Civil Appeals Office. When the head of the Civil Appeals Office is a lawyer, he or she may also act as a designated senior legal officer.
The designated legal officers should be subject to judicial supervision.
Anybody who is dissatisfied with a judicial decision made by a designated legal officer will be entitled to have that decision referred to a member of the CA.
When a new head of the Civil Appeals Office is appointed, there will be no requirement for a judicial post of Registrar of Civil Appeals. When the existing office holder leaves office, he should not be replaced.
The approach of the CA and the Civil Appeals Office should be towards managing a case from the time it is set down to the final disposal.
The Lord Justice or Lord Justices granting leave to appeal should give appropriate directions about the future handling of the appeal. There should be a standard checklist indicating the main points to be covered.
In a weighty or sensitive case the Lord Justice who grants leave to appeal should wherever possible be a member of the court who hear the appeal and should be available to give directions about the handling of the case.
The system of supervising Lords Justices with responsibilities for monitoring cases, giving directions and liaison with lower courts should be developed and evaluated.
All Lords Justices should continue to develop their responsibility for ensuring that all cases are heard as speedily and efficiently as possible.
All Lords Justices need to understand the organisation of and responsibilities within the CA and the Civil Appeals Office. Information on this should appear in the benchbook currently under preparation.
The Lords Justices' clerks should be available to help the Civil Appeals Office obtain documents missing from the appeal papers; and to help the Presider with case management once the case is listed.
There should be legally qualified staff in the Civil Appeals Office able to:
assist the Lords Justices exercise their responsibilities for case management;
make directions as to the future progress of cases;
advise the Office's administrative staff and litigants on points of jurisdiction;
undertake ad hoc research for the Master of the Rolls, Lords Justices and the Registrar;
write notes or summaries for the assistance of the Court;
maintain an index of judgments and other legal information;
advise in relation to listing;
discuss procedures with litigants and their representatives.
Judicial assistants should be employed on a temporary basis to assist the members of the CA and the Civil Appeals Office.
Somebody must be able to carry out the functions of the head of the Civil Appeals Office in his or her absence.
There should be a general office and a listing office whose managers report directly to the head of the Civil Appeals Office.
There should be a number of case work teams, headed by a team manager who should work directly to the head of the Civil Appeals Office.
Each case work team manager should be appointed solely on experience and ability.
The responsibilities of the team managers should be to progress cases; ensure that papers are complete and in good order; and indicate delays or problems to the supervising Lord Justice or the head of the Civil Appeals Office.
The time limit for submitting notice of appeal to the CA, if leave from the CA is not required, and for applying for leave to appeal should run from the date when the order was made in the court below.
The time limit should be six weeks in appeals against final decisions and seven days in appeals against interlocutory decisions.
A party intending to appeal must serve the respondent with a notice of intention to appeal within 21 days of the decision if he or she has not already served a copy of the application for leave.
In any case where there is a right of appeal, the appellant should be required to serve the respondent with a notice of intention to appeal within 21 days of the decision unless he or she has already lodged their notice of appeal.
All county court judgments should be recorded.
Contracts with firms preparing transcripts of proceedings should contain clauses which require transcripts to be produced and sent for correction within set times. There should be penalties where those times are not met.
In the future consideration should be given to making transcripts available in electronic form or through the Internet.
In future every notice of appeal should be accompanied by a skeleton argument which should replace the present grounds of appeal.
The skeleton should only be amended and resubmitted with the consent of the Court, for example if there is a change of advocate or it has to be prepared before the transcript is ready.
The application for leave to appeal and the skeleton argument should be served on the respondent, who should have seven days in which to submit reasons why leave should not be granted.
Where leave is granted by the CA or is not required, the respondent should submit his or her skeleton argument within 28 days of being served with the notice of appeal. The respondent must serve his or her skeleton argument on the appellant.
The appellant should then have the right to submit a supplementary skeleton within 14 days of being served with the respondent's skeleton argument.
No further skeleton argument may be served without the leave of the CA.
Litigants in person should be asked to draft skeleton arguments, but there should be some discretion about format.
We endorse the Master of the Rolls' practice direction of 12 May 1997 on core bundles.
All bundles should be clearly indexed.
There should be a front sheet on all bundles containing standard information about the case and its history.
In represented cases there should be agreed statements of facts and of the issues.
A pilot should be carried out to assess the practicability of agreed appendices which set out and extract those documents which the CA needs to see.
The CA should impose appropriate time limits on oral argument in appeals having first taken account of the parties' grounds of appeal, skeleton arguments and their own estimates of time.
Subject to the agreement of all the parties to the appeal and of the CA, it should be possible for an appeal to be decided on the papers alone.
Consideration should be given to reducing the court fee for appeals heard on the papers alone.
Where an appeal is decided on the papers alone, that decision shall be final.
An appeal on the papers alone should be considered by two or three judges in the normal way.
Reserved judgments should normally be delivered by one member alone of the court which heard the case.
In the normal way the parties should not be required to attend when the reserved judgment is delivered. Arguments on costs can be dealt with at the hearing, or subsequently either on the papers or in Chambers.
There should be a target date of no more than 42 days for the delivery of a reserved judgment.
Applications for leave to appeal which are manifestly ill-founded, unreasonable or vexatious could be dismissed on the papers by a single Lord Justice.
The rules and procedures governing appeals should be reviewed to make them as straightforward and clearly expressed as possible.
There should be realistic time limits. There should then be a strong presumption that time limits should not be extended save in exceptional circumstances.
The merits of an appeal should not be relevant when the CA considers whether or not to extend a time limit.
If rules are not complied with, the applicant or appellant should be at risk of having their case dismissed or at least being penalised in costs.
The Lord Justice or Lords Justices who grant leave to appeal or renewed leave to move should consider whether the case is suitable for mediation and recommend accordingly.
The balance of judicial time should lean more towards reading and less towards sitting in Court.
Case tracking and case planning systems should be introduced into the CA.
Telephone and video conferencing systems should be piloted within the Court of Appeal (for example, for urgent leave applications) in the light of which their more general application should be considered.
Document retrieval systems should be piloted in the context of suitable cases.
If IT-based case management systems are introduced, it should also be possible to offer access (to appropriate parts of the system) to parties and their advisers.
A more coherent IT infrastructure should be introduced in the CA, together with a number of applications for the Lords Justices which should help them manage their work.
Wherever possible, the same systems should be used in both Divisions of the Court of Appeal.
An appropriate IT infrastructure for the Lords Justices should be put in place in the CA. This should include a secure local area network which should:
be linked to the network in the Civil Appeals Office;
give access to the Internet and the World Wide Web, with each Lord Justice having an address on the Internet, if they wish; and
support the transmission of video in due course.
The Lords Justices should all be equipped with machines that run on an industry standard operating system. They should be offered the option of powerful portable computers.
The Lords Justices should be able to access the CA network from locations beyond the Royal Courts of Justice.
The Lords Justices should be provided with systems on which should run:
an industry standard electronic mail system, which should be able to provide a "universal mailbox";
a single word processing package; and
standard document management packages.
The Lords Justices should be made aware of potentially relevant material that is available on-line or on compact disc and, if they wish such information to be made available, a sensible budget should be allocated for the systems to be introduced.
An Intranet should be set up in the CA, for access by the Lords Justices and the staff.
The first task in implementing our recommendations on IT should be to produce a medium term plan, including a detailed specification, complete with budgets, time scales, milestones and indicating the way in which the success or otherwise of the investment is to be assessed.
The Lords Justices should be provided with focused and practical training on using IT.
Competent support personnel should be provided when new systems are installed.
The first year or so of the provision of CA judgments through the Internet should be offered on an experimental basis.
A small group of Lords Justices should be identified to work alongside the Court Service in assessing the impact and utility of new developments in IT.
We welcome the consideration being given by the Judicial Studies Board to the guidance for judges in relation to litigants in person.
Comprehensive general information about appeals and appellate procedure should be made available at the earliest possible opportunity. It should be:
available at the court or tribunal which made the decision against which an appeal is being considered, the CA and advice centres;
delivered in a range of ways which makes use of modern technology; and
easily understandable.
The development of better information should be overseen by the Users' Committee with input from individual litigants in person.
If research demonstrates the success of the pilot scheme at the Citizens' Advice Bureau at the Royal Courts of Justice, that scheme should become permanent.
Litigants in person should be informed about the existence of services which might be of benefit to them.
Guidance on practice and procedure should be available from the designated senior legal officers at the Civil Appeals Office.
The Civil Appeals Office should be organised in a way that makes it easier for litigants in person to make enquiries and prepare documents.
Time limits should be imposed on litigants in person in so far as possible in the same way as for represented applicants or appellants.
In cases where conditional fee agreements are allowed, proceedings on appeal should continue to be included among the types of proceedings which can be the subject of such agreements.
Consideration should be given to the practicability of a scheme to control the level of recoverable costs.
The CA should continue to be ready to apply the provisions of section 18 of the Legal Aid Act 1988 in appropriate cases.
Practitioners acting for legally aided parties in the CA should consider carefully whether, in cases where parties have the same interest, separate representation is justified.
Further consideration should be given to whether a workable scheme can be devised to assist parties in bringing appeals on points of general public importance which would otherwise be considered by a lower court but which are allocated to the CA.
The "special circumstances" in which security for costs may be ordered in the CA should be limited to where:
the appellant's conduct suggests he or she may obstruct the recovery of costs; or
the appellant resides outside the European Union, unless he or she proves ease of enforcement; or
statutory grounds exist.
Where agreement on security for costs cannot be reached between the parties, applications should be normally dealt with on the papers by a lawyer in the Civil Appeals Office with suitable experience.
There should be a right of appeal against an order for security for costs to a single Lord Justice at an oral hearing.
Consideration should be given to whether the costs of a case at first instance should normally be taxed together with the costs of the appeal.
When exercising its discretion on the costs to be awarded, the CA should consider whether the way the appeal was conducted was appropriate.
There should be an enhanced Administration Committee to assist the Master of the Rolls with his overall responsibility for the speed, efficiency and economy with which the work of the CA is conducted.
The responsibilities of the Committee should include:
considering what information is required in order to keep the workload of the CA under satisfactory review;
setting target dates by which all appeals should be heard;
identifying possible areas of delays or problems and considering what action needs to be taken to deal with them;
developing best practice in case management;
ensuring that the members of the CA and the Civil Appeals Office are working together in the most effective and efficient way;
reviewing the procedures of the CA.
The membership of the Administration Committee should include one presiding Lord Justice, one supervising Lord Justice, the Director of the Supreme Court and the head of the Civil Appeals Office.
The head of the Civil Appeals Office should establish monthly meetings of the senior staff.
The CA needs better information to help it monitor and evaluate its work.
The RECAP system must be modified and/or better used to produce such information.
The CA must be able, amongst other matters, to:
measure the length of time in which cases or classes of case have been outstanding;
measure the total time taken by a successful application for leave to appeal followed by an appeal;
analyse the effects of the leave to appeal requirement on the time spent by the CA on disposing of cases and on the success rates of appeals, both where leave was granted in the CA and where it was granted in the court below;
monitor the efficiency of our recommended procedure for dealing with applications for leave to appeal made by litigants in person;
evaluate the efficiency of the facility to apply for leave to appeal in the court below;
assess the workload of the members of the CA out of court;
assess the weight of cases;
analyse the way cases flow through the system as a whole;
categorise cases in order to provide more meaningful management information, and to allow "issue tracking" and evaluation of procedures;
monitor the effect of the recommendations in this report; and
identify the need for further reforms.
Consideration should be given to the feasibility of a survey of the reasons why appeals are made and why other litigants accept the decisions of courts of first instance.