This consultation closed on 14 May 2004.
There are a large number of statutory provisions which give appeal or review access to the county courts, High Court or Court of Appeal from decisions of tribunals and other outside bodies and persons. They are known as statutory appeals. This paper sets out for consultation the Government's proposals for rationalising the court procedures used so that they more closely follow the procedures already used in appeals from a lower to a higher court. The provisions fall broadly into two categories:
Statutory appeals - a term used to cover rehearings, appeals on a point of law and case stated appeals (where the decision-making body sets out the issues at stake and reasons for its decision in a document for the consideration of the appeal court).
Statutory review or application to quash (i.e. invalidate a decision) - terms used to describe a closely defined procedure for challenging administrative decisions on the grounds that they are either not within the powers of the relevant Act or that the legislative requirements have not been complied with. It is in many ways a statutory version of judicial review, but the power of the court is confined to quashing the order or decision in question.
A full list of statutory appeal and statutory review provisions is attached at Annex B.
The scope of the proposals contained in this consultation for rationalising civil court procedures does not extend to any current or future provisions for reviewing or appealing against immigration or asylum decisions, and for these purposes, this includes appeals under section 7 of the Special Immigration Appeals Commission Act 1997 (including appeals under that section as applied by Part 4 of the Anti-terrorism, Crime and Security Act 2001).
In addition, the procedure provided for in section 101 of the Nationality, Immigration and Asylum Act 2002 (which though known as statutory review is not a statutory review within the meaning of this consultation) is also excluded.
This consultation is aimed at those who give decisions or are subject to decisions (and their advisers) who may wish to appeal or apply for a review and who may be affected by the statutory provisions for England and Wales. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria, which are set out in the section entitled 'General Principles of Consultation' have been followed.
The proposals are likely to be mainly cost neutral but it is envisaged that the proposal relating to permission to appeal will lead to some savings for businesses, charities and the voluntary sector, as well as the Court Service. A partial Regulatory Impact Assessment is attached at Annex A.
Copies of the consultation paper are being sent to:
amongst others.
Responses from members of the public and others who may be affected by these
proposals are welcomed.
Please send your response by 14 May 2004 to:
Steven Uttley
Department for Constitutional Affairs
Civil Justice Division
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8515
Fax: 0207 210 8559
Email: Steve Uttley
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Deirdre Back at the above address or by phoning 020 7210 0693.
Since October 2000 all civil appeals from a lower to a higher court have been subject to a permission requirement (with the exception of those involving the liberty of an individual). They have also been subject to a time limit of 14 days. In contrast, there is currently a wide variation in the procedures used in statutory appeals. While some statutory appeals are subject to a leave or permission requirement others are not. Similarly time limits vary. Statutory reviews are not subject to a permission requirement, although time limits are more uniform - six weeks in most cases. This Consultation discusses the background and various proposals for procedural change in a number of areas and invites views on the following proposals.
For those statutory appeals where no permission stage exists it is proposed to introduce a permission stage to weed out cases that have no prospect of success.
It is proposed to introduce an equivalent permission stage in statutory reviews. Statutory review is not subject currently to a permission stage, whereas the similar process of judicial review is.
Introduction of a common time limit for lodging statutory appeals and statutory reviews. Although it may be necessary to make a few exceptions, because of the situations which particular provisions are designed to deal with, we propose to standardise where possible at 28 days for statutory appeals (these currently vary widely) and six weeks for statutory review (most are currently six weeks).
Introduction of a similar provision to that which exists for judicial review to permit intervention by a third party (which may include a Government Minister or Department), provided that the court is satisfied that the third party is a proper person to be heard.
Introduction of the power for the Court to make a pre-emptive costs order, where appropriate, to safeguard the position of third parties who intervene.
A point that it is important to highlight is that this review is not intended in any way to alter the fundamental nature of these appeal and review provisions. The above proposals are not intended to remove or extend any existing right of appeal, divert the appeal to another body or to alter the basis on which the appeal may be made, nor to change the category of those entitled to appeal. The purpose is to unify, as far as possible, the procedures for making and dealing with appeals to the county courts, High Court and Civil Division of the Court of Appeal (but not to magistrates courts, the Crown Court, the Criminal Division of the Court of Appeal or appellate tribunals, none of which are governed by the Civil Procedure Rules).
Background
A Law Commission Consultation Paper and Report (published 1993 and 1994 respectively)(The Law Commission Consultation Paper No. 126 'Administrative Law: Judicial Review and Statutory Appeals'1993, and Law Commission Report No 226 'Administrative Law: Judicial Review and Statutory Appeals') looked into the area of statutory appeals and statutory review (and judicial review) and made a number of specific recommendations for reform, particularly in respect of the different procedures followed. One of the aims of the reforms suggested by Lord Woolf, in his Access to Justice report, published in 1996, was to make civil procedures easier. As part of his report, he recommended that 'there should be greater uniformity in the procedure for statutory appeals to the courts'. The majority of the Law Commission's recommendations were included, together with comments and recommendations for action, in the Report 'Review of the Crown Office List', by Sir Jeffrey Bowman which was published in March 2000
A number of changes have already been made to the Civil Procedure Rules (CPR), particularly in Part 52 and the accompanying Practice Direction, to bring statutory appeal procedures into line with those followed for appeals from the lower courts. However the process is incomplete, because the primary legislation, which provides for the appeal rights will, where it makes specific provision in a particular area, take precedence over any equivalent provision in the CPR. As part of the continuing programme of reforms this consultation paper discusses the proposed changes to statutory appeal and statutory review procedures. Permission to appeal or apply for statutory review
The permission requirement is designed as a filter to weed out weak or unmeritorious appeals at an early stage in the appeal process. Prior to October 2000 permission was necessary for certain types of appeal, including the majority of those to the Court of Appeal, but there was no general requirement to obtain permission before appealing to the next judicial level. From the year 2000 (May 2000 for the fast and multi-tracks and in October 2000 for the small claims track) parties were required to seek the court's permission to appeal to a higher court. However, the new rules did not require permission to be obtained in statutory appeal or statutory review applications. In only about 10% of statutory appeal provisions is there a requirement in the legislation that permission must be obtained. The position therefore remains that the majority of statutory appeal provisions (and all but one or two statutory review provisions) are not subject to a requirement to obtain permission.
Although a full evaluation of the Appeal changes made in 2000 has not yet been produced, a preliminary review of appeal success rates has indicated that the introduction of a general permission requirement for appeals between courts has successfully filtered out weak or unmeritorious cases whilst not adversely affecting the overall success rate of appeals.
It is the view of this Department and of the Civil Procedure Rule Committee that it is desirable that all statutory appeals and applications for statutory review, should be subject to a requirement to obtain permission from the court to which the appeal is directed, unless in specific cases there is evidence that such a requirement would be likely to create an injustice. This would provide an opportunity for the Court to determine at an early stage whether an appeal has a real prospect of success or there is some other compelling reason why it should be heard. This will save litigants the cost of preparation and attendance at a full hearing if there is no real prospect of success and will allow court resources to be concentrated on those appeals that have a prospect of success.
We therefore intend to introduce for as many provisions as possible a requirement that all applicants for statutory appeals or reviews should be required to obtain permission from the court to which the application is directed.
Note that if this proposal is adopted the application for permission will be to the court only, not to the body or person who made the decision.
Question 1. Do you agree that the permission filter, which already applies to all appeals between civil courts, should be extended to all those statutory appeals that do not currently have such a requirement in their legislation? If not please say why you think a permission stage is inappropriate.
Question 2. Are there any specific statutory appeal provisions which should not be subject to a permission stage? If so please specify which provisions you consider should not be subject to a permission stage and why.
Question 3. Do you agree that the permission stage, which already applies to judicial review applications, should also be applied to statutory reviews? If not please say why you think a permission stage is inappropriate.
Question 4. Are there any specific statutory review provisions, which should not be subject to a permission stage? If so please specify which provisions you consider should not be subject to a permission stage and why.
Time Limits
The Civil Procedure Rules specify that appeals from one civil court to another must be made within 14 days, although there is provision for the appeal court to consider applications to apply outside the time limit. Practice Direction 52 provides for a 28-day time limit to apply for those statutory appeals where no limit is specified in the statute. In many cases, however, a limit is specified and this can vary greatly from 14 days to several months. Similar issues arise about applying for a statutory review.
A time limit has the advantage of introducing greater certainty for litigants because once it has expired a decision is to all intents and purposes final and parties know where they stand. Common time limits reduce the potential for confusion about what time limit applies. We therefore propose to have a unified time limit for statutory appeals of 28 days. In exceptional cases it may be necessary to have a longer limit but if this is shown to be essential we would prefer to have just one further common time limit, for instance three months, rather than a range of intermediate time limits. For statutory reviews there is already a considerable degree of homogeneity; most have a six week time limit. We therefore propose to standardise around a six week time limit.
Question 5. Do you agree with a common time limit of 28 days for statutory appeals and six weeks for statutory reviews? If not please explain why.
Question 6. If 28 days for statutory appeals and six weeks for statutory reviews are inappropriate for common time limits what do you consider to be more appropriate limits?
Question 7. Are there any specific statutory appeals or reviews for which a different limit might be appropriate? If so which are these, and for each why is a different time limit appropriate and what should it be?
OTHER ISSUES
Third Party Intervention in Statutory Appeals
A recommendation made in the 'Review of the Crown Office List' Report was that, where necessary, the rules should be amended to allow for the intervention of a third party in a statutory appeal, provided that the court is satisfied that the third party is a proper person to be heard. The Law Commission noted in its 1993 Consultation Paper that 'much space is devoted both in statute and in rules to identifying the correct respondent and other parties to be served'. This was contrasted with the more general provisions for judicial review. It recommended that the procedure used in judicial review, which permits almost anyone to apply to appear at the full hearing but leaves the matter to the discretion of the court, might be more effective. This should help avoid situations like that referred to in the Law Commission's Consultation Paper where the statutory appeal rules precluded representations from being made by the Government Department most closely concerned in a particular case. The judicial review rule and Practice Direction provisions are set out below by way of example:
Rule 54.17
Part 54 Practice Direction 13.1 Where all the parties consent, the court may deal with an application under rule 54.17 without a hearing. 13.2 Where the court gives permission for a person to file evidence or make representations at the hearing of the claim for judicial review, it may do so on conditions and may give case management directions. 13.3 An application for permission should be made by letter to the Administrative Court office, identifying the claim, explaining who the applicant is and indicating why and in what form the applicant wants to participate in the hearing. 13.4 If the applicant is seeking a prospective order as to costs, the letter should say what kind of order and on what grounds. 13.5 Applications to intervene must be made at the earliest reasonable opportunity, since it will usually be essential not to delay the hearing. |
A related issue is the question of making provision to enable third parties to apply to the court for a pre-emptive order for costs. This is already available in judicial review (see 13.4 above). Its purpose is to ensure that third parties who intervene know what the position on costs is before proceeding. Without it they may be deterred by the potential for incurring ruinous costs at the conclusion of proceedings. A prospective order will not necessarily be against other parties or the state, it could be for instance that each party is ordered to bear its own costs. If a prospective order is made the third party will at least have the benefit of being able to take an informed decision on whether or not to proceed even if the order is adverse. It is therefore intended to introduce a similar provision to that at 13.4 above in statutory appeal and statutory review.
Question 8. Do you agree with the proposals to allow third parties to intervene in statutory appeals provided that the court is satisfied that the third party is a proper person to be heard? If not please explain why not.
Question 9. Do you agree that third parties seeking to intervene in a statutory appeal should have the ability to seek a pre-emptive order for costs? If not please explain why not.
Tribunals Reform
The Government's plans for the reform of tribunals were announced on the 11 March 2003. Building on the work of the Tribunals for Users Programme, it has been decided that the best way to deliver sustainable improvement for users is through the creation of a unified Tribunals Service within the Department for Constitutional Affairs.
One of the areas examined in Sir Andrew Leggatt's 2001 report Tribunals for Users: One System, One Service was the appellate structure of tribunals. The Government's proposals for appeals from tribunals within the Tribunals Service will be included in a White Paper that will be published at the end of this year.
It is therefore not intended to deal in any detail with those statutory appeals that will fall under the ambit of this area of work. However, in the intervening period, until the Government's proposals on tribunal reform are implemented, we shall explore whether a permission requirement for appeals from tribunals to the court can be inserted by a simple general rule provision, ensuring uniformity of procedure between appeals from tribunals and other statutory appeals.
We would welcome responses to the following questions set out in this consultation paper:
Do you agree that the permission filter, which already applies to all appeals between civil courts, should be extended to all those statutory appeals that do not currently have such a requirement in their legislation? If not please say why you think a permission stage is inappropriate.
Are there any specific statutory appeal provisions which should not be subject to a permission stage? If so please specify which provisions you consider should not be subject to a permission stage and why.
Do you agree that the permission stage, which already applies to judicial review applications, should also be applied to statutory reviews? If not please say why you think a permission stage is inappropriate.
Are there any specific statutory review provisions, which should not be subject to a permission stage? If so please specify which provisions you consider should not be subject to a permission stage and why.
Do you agree with a common time limit of 28 days for statutory appeals and six weeks for statutory reviews? If not please explain why.
If 28 days for statutory appeals and six weeks for statutory reviews are inappropriate for common time limits what do you consider to be more appropriate limits?
Are there any specific statutory appeals or reviews for which a different limit might be appropriate? If so which are these, and for each why is a different time limit appropriate and what should it be?
Do you agree with the proposals to allow third parties to intervene in statutory appeals provided that the court is satisfied that the third party is a proper person to be heard? If not please explain why not.
Do you agree that third parties seeking to intervene in a statutory appeal should have the ability to seek a pre-emptive order for costs? If not please explain why not.
Name:
Organisation:
Address:
If you are a representative groups please give a summary of the people and organisations you represent
Please send your completed response to:
Steven Uttley
Department for Constitutional Affairs
Civil Justice Division
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8515
Fax: 0207 210 8559
Email: Steve Uttley
If you have any complaints or comments about the consultation process, you should contact the Department fro Constitutional Affairs consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
London SW1E 6QW
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.
Annex A - Partial Regulatory Impact
Assessment 
[57KB]
Annex B - List of Current Statutory
Provisions for Appeals and Reviews to the Civil Courts [89KB]