PART IV - APPEALS etc.|
Right of appeal
CLAUSE 38 - PERMISSION TO APPEAL
72. Clause 38 enables rules of court to provide
that permission (as the rules will in future describe what is
now called 'leave') must be granted before an appeal can proceed
to or within the county courts and the High Court and to the Court
of Appeal. Rules may specify which cases require permission, who
may give permission, what considerations should be taken into
account when deciding to grant permission and what requirements
need to be satisfied before it is granted. Rules of court may
and do already provide for leave to appeal to the Civil Division
of the Court of Appeal. This clause will allow similar provision
to be made for the county courts and High Court.
73. The purpose of requiring permission is to
provide a mechanism by which the courts are able to determine
whether or not there are sufficient grounds for an appeal to proceed.
This will prevent unmeritorious claims from reaching the court,
with the uncertainty and wasted costs that these incur, thus releasing
more court time for the hearing of meritorious appeals. Leaving
this matter to rules will allow changes to be made in the light
of experience to the requirement for permission in particular
categories of case.
74. Rules governing the practice and procedures
of the Court of Appeal, High Court and county courts are made
under existing provisions in section 1 of the Civil Procedure
Act 1997. From April 1999, the Civil Procedure Rule Committee
will have responsibility for making rules of court, which the
Lord Chancellor may then allow or disallow. The Committee consists
of judges, legal practitioners and representatives of the advice
and consumer sectors. It is chaired by the Master of the Rolls.
Rules are subject to Parliamentary approval under the negative
75. Clause 39 contains no delegated powers.
Destination of appeals
CLAUSE 40 - POWER TO PRESCRIBE ALTERNATIVE DESTINATION
76. Clause 40 provides a new power for
the Lord Chancellor to vary, by order, the routes of appeal to
and within the county courts, High Court and Court of Appeal (Civil
Division). An order may make different provision for different
types of proceedings. The clause also provides that the Lord Chancellor
may amend or repeal enactments in consequence of any such order.
This will be necessary when an order changes a route of appeal
which is specified in statute. Before making an order, the Lord
Chancellor is required to consult the Lord Chief Justice, Master
of the Rolls, Vice-Chancellor and President of the Family Division.
Because of the fundamental constitutional importance of the right
to appeal to a higher court, orders under this clause will be
subject to the affirmative resolution procedure.
77. The underlying objective of this clause is
to ensure that appeals are dealt with in a way that is proportionate
to the weight, importance and complexity of their subject matter,
and which makes the best use of available resources. It is necessary
to leave this matter to secondary legislation because the civil
justice system is currently subject to an on-going programme of
major reform An order-making power will provide the necessary
flexibility to amend appeal routes as the civil justice system
evolves, and in response to changes in the availability of, and
demands, on judicial resources (eg. following implementation of
the Human Rights Act 1998).
CLAUSE 41 - ASSIGNMENT OF APPEALS TO COURT OF APPEAL
78. Clause 41 provides for appeals to be directed
to the Court of Appeal, even if they would not usually lie there.
This will ensure that individual appeals of appropriate substance
continue to reach the Court of Appeal, even when appeals in that
category of case would normally lie elsewhere by virtue of an
order made under clause 40.
79. The clause provides for this procedure to
be governed by rules of court, so the Lord Chancellor can set
a framework for the exercise of the power to refer exceptional
cases to the Court of Appeal, in order to ensure that only those
cases which merit its consideration are directed to that Court.
Civil division of Court of Appeal
CLAUSE 42 - COMPOSITION
80. Clause 42 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
in order to hear specified types of proceedings. It also allows
the Master of the Rolls or a Lord Justice designated by him to
determine the number of judges who should hear particular appeals.
81. At present, the number of judges who must
sit is governed by section 54 of the Supreme Court Act 1981, which
provides for a minimum of three judges in the majority of cases.
Clause 42 replaces parts of section 54 to provide greater flexibility
to determine the constitution of each court according to the individual
nature of the appeal. These provisions are aimed at ensuring that
the resources devoted to a case are proportionate to its weight
82. Clause 43 contains no delegated powers.
Jurisdiction of single judge of High Court
83. Clauses 44 - 46 contain no powers to make
secondary legislation. They will, however, enable rules of court
to be made to provide that certain categories of case should be
heard by a single High Court judge (rather than a Divisional Court
of a least two judges).
84. Clause 47 contains no delegated powers.
Reporting of proceedings relating to children
85. Clause 48 contains no delegated powers.