The Court of Appeal

216 Pages·2007·0.73 MB·English

by  Gavin Drewry

the court of appeal
Civil justice has been undergoing a massive transformation. There have
been big changes in the management of judicial business; the Human Rights
Act 1988 has had a pervasive impact; the Constitutional Reform Act 2005
has effected many changes—notably, the prospective transfer of the appel-
late jurisdiction of the House of Lords to a new Supreme Court. Against
this backcloth of radical change, this book looks at the recent history and
the present-day operation of the civil division of the Court of Appeal—a
court that, despite its pivotal position, has attracted surprisingly little schol-
arly attention. It examines the impact of the permission to appeal require-
ments, and the way in which applications—particularly those by litigants in
person—are handled; it looks at the working methods of the Lords Justices
and at the leadership of the Court by recent Masters of the Rolls; it consid-
ers the relationship between the Court and the House of Lords—looking
at high-profile cases in which the Court has been reversed by the Lords.
Notwithstanding the impending arrival of the Supreme Court, it concludes
that ‘the Court of Appeal will remain firmly in place, occupying its crucial
position as, to all intents and purposes, the court of last resort—indeed, a
supreme court—for most civil appellants.’

The Court of Appeal
Gavin Drewry
Louis Blom-Cooper
Charles Blake
with the assistance of
Suzanne Fullbrook
OXFORD AND PORTLAND, OREGON
2007
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© Gavin Drewry, Louis Blom-Cooper, Charles Blake 2007
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British Library Cataloguing in Publication Data
Data Available
ISBN-13: 978-1-84113-387-4 (hardback)
ISBN-10: 1-84113-387-6 (hardback)
Typeset by Compuscript Ltd, Shannon
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
Foreword
by
The Lord Chief Justice, Lord Phillips of
Worth Matravers
I am delighted to have been asked to introduce this new work on the Civil
Division of the Court of Appeal by Gavin Drewry, Louis Blom-Cooper QC, and
Charles Blake. In their introduction the authors identify a lacuna in the literature
on the judicial system: there was, until recently at least, the lack of a systematic
study of the theory and practice of the Civil Division of the Court of Appeal,
in contrast to the attention paid to the Criminal Division of the same Court.
They acknowledge, of course, the reports commissioned by the (then) Lord
Chancellor’s Department in the area, in particular those by Sir Jeffery Bowman
and by Lord Woolf, my predecessor as both Master of the Rolls and Lord Chief
Justice, (the latter examining civil procedure as a whole). These reports have her-
alded radical changes to the approach to civil appeals. This study is thus timely
and important. Timely because the civil procedure reforms have now had the
chance to ‘bed in’, and the authors have therefore been able to subject them to
meaningful scrutiny. Important because, as is demonstrated in the chapters which
follow, the Civil Division of the Court of Appeal is in the vast majority of civil
cases the court of last resort. It is perhaps therefore surprising that an indepen-
dent study of this kind has not previously been published.
The book is more than a simple history and description of the work of the Civil
Division. It addresses broader questions as to the nature of the appellate jurisdic-
tion and the relationship of the division with both the lower courts and the House
of Lords. These aspects of the examination are particularly welcome in the light of
further changes on the horizon. The government is proposing wholesale reforms
in relation to tribunals, with the introduction of an upper-tier appellate tribunal.
We are also on the verge of the replacement of the House of Lords by the Supreme
Court, which will complete the measures enacted by the Constitutional Reform
Act 2005. It is to be hoped that those responsible for policy and implementation in
these areas are as rigorous as the authors of this work in their thinking about the
requirements of an efficient and effective appellate system.
It is written in chapter two that:
A measure of detachment from the dust of forensic combat is the hallmark
of the appellate court.
vi Foreword
There is a need for a similar measure of detachment in any analysis of the
raft of recent reforms which have come to bear both on the appellate court
and on the judiciary as a whole. Messrs Drewry, Blom-Cooper, and Blake
have succeeded in detaching themselves from the dust, and for that those of
us charged with finding our way through it are indebted to them.
Acknowledgements
For various reasons—some of them very much down to the authors, oth-
ers less so—this book had a longer period of gestation than could reason-
ably have been expected. Some of the authors’ expressions of thanks must
therefore be flavoured with a considerable dash of contrite embarrassment.
This ingredient is particularly apposite in respect of our gratitude both to
our publisher and to the Nuffield Foundation, which so generously funded
the project. Richard Hart, the Managing Director of Hart Publishing, has
been ever generous with support and advice, and has regularly turned a
diplomatic blind eye to our chronic over-optimism about producing the
manuscript of our book. The Nuffield Foundation, and, in particular,
Sharon Witherspoon, have also been immensely supportive; they have
kindly allowed us several extensions of time on the grant expiry date to
enable us to bring the project to completion. We are greatly indebted to
both Richard and Sharon for their continuing faith in us, which must, at
times, have entailed considerable exertion on their part to achieve the req-
uisite suspension of disbelief.
We gratefully acknowledge the support given to us by the Department
of Social and Political Science (now Politics and International Relations) at
Royal Holloway, University of London, where the project has been based.
We have received a great deal of invaluable professional advice along the
way. During the main period of our research activity we benefited greatly
from the support of a distinguished advisory group, chaired by Sir John
Laws, the other members being Presiley Baxendale QC, Professor Andrew
Le Sueur, and Master Roger Venne. We also owe a great debt to Roger
Venne, to his successor as head of the Civil Appeals Office, David Gladwell,
and to their colleagues—too numerous to mention individually—not only
for providing us with so much invaluable information and advice, but
also for putting up with our physical invasion of their working space.
Peter Thompson, the general editor of the Civil Court Practice (the ‘Green
Book’), was very helpful in unravelling some troublesome points about
Part 52 of the Civil Procedure Rules. We are very grateful for having been
given such generous access to the Office and its records, without which the
project would not have been feasible. Brendan Keith, head of the Judicial
Office of the House of Lords, and his colleague, Christine Salmon, gave us
very helpful information about recent and continuing developments in the
appellate jurisdiction of the House.
In addition, we interviewed the Master of the Rolls (then Lord Phillips)
and ten of the 37 Lords Justices. Our interviews were conducted on a
viii Acknowledgements
non-attributable basis but, even though we do not name names, we have
very much appreciated their giving us the benefit of their time and shar-
ing with us their opinions and experiences. Needless to say, none of those
acknowledged here, whether named or unnamed, bears any responsibility
for the opinions expressed in this book, or for any errors of fact.
Several other names also deserve a grateful mention. Joyce Plotnikoff
and Richard Woolfson undertook a consultancy project on the workings
of the Court of Appeal on behalf of the Lord Chancellor’s Department (as
it then was) just as we were beginning our own research. They generously
gave us access to their very useful report and we had several helpful con-
versations with them about matters of common interest. At the writing-up
stage, Ruth Massey joined the team as our editorial adviser. She played an
invaluable role in helping to convert our imperfect drafts into a state fit for
submission to the publisher, and we have greatly appreciated her excellent
advice and perceptive comments.
Finally, we must say a very special thank you to Suzanne Fullbrook, our
valued research assistant. Suzy’s hard work and loyal commitment have
made a very significant contribution to the project, signalled by the inclu-
sion of her name on the title page of this book.
Gavin Drewry, Louis Blom-Cooper and Charles Blake
Royal Holloway, University of London
July 2006
Material reproduced from the Judicial Statistics and the Court of Appeal’s
Reviews of the Legal Year is © Crown Copyright.
Contents
Foreword by the Lord Chief Justice, Lord Phillips of
Worth Matravers ..................................................................................v
Acknowledgements .............................................................................vii
About the Authors .............................................................................xiii
Table of Cases.....................................................................................xv
Tables of Legislation .........................................................................xvii
1 Introduction .....................................................................................1
The Research Agenda ......................................................................5
A Note on Methodology ..................................................................6
Plan of the Book ..............................................................................8
Annex A: Data Collected for Each Case in the Data-Set ..................9
Annex B: Researchers’ Informal Aide-Mémoire for the Conduct of
Semi-Structured Interviews With Judges in the Court of Appeal .....10
2 The Nature of the Appellate Process ..............................................13
Appeals in Historical Perspective ...................................................15
Species of Appeal ...........................................................................16
The Rationale of English Civil Appeals ..........................................20
Appeal and the Trial Process .........................................................22
3 Origins and Development of the Court of Appeal .........................31
The Position Before 1875 ...............................................................31
A New Home for the New Court ...................................................34
Rights of Appeal: From Hanworth to Evershed .............................34
A Transatlantic Lesson? Slow Moves Towards Modernisation
Since the 1960s .........................................................................37
Insights from Within ......................................................................39
The Woolf Reforms........................................................................43
A View from the 1880s—Plus Ça Change? ....................................45
4 New Public Management in the Court of Appeal:
The Woolf and Bowman Reforms ..................................................47
Thatcherism and the New Public Management ..............................48
Thatcherism Catches Up with the Judiciary ...................................49
New Public Management and the Courts—The Rising Tide ..........52
The Woolf Reports on Civil Justice ................................................54
The Court of Appeal: From Woolf to Bowman ..............................55
x Contents
Implementing Woolf and Bowman: The Tanfern Direction ............58
Judges as Case Managers? .............................................................61
5 A Right of Appeal? ........................................................................67
The New Procedure in Outline ......................................................67
The Requirement for Permission to Appeal ....................................69
Dealing With an Application for Permission to Appeal ..................69
Second Appeals ..............................................................................71
Restrictions on Appeals about Case Management .........................73
Appeals from Specialist Tribunals ..................................................74
Reform of Permission to Appeal ....................................................74
Alternative Dispute Resolution: Mediation, Costs, and
Lower Courts .............................................................................76
After Permission to Appeal has been Granted: Review or
Rehearing? .................................................................................78
The Outcome of an Appeal ............................................................81
6 The Court of Appeal at Work—Some Facts and Figures ...............83
The Offi cial Statistics .....................................................................83
Permission to Appeal: The Procedure in Practice ..........................84
The Human Rights Act 1998 .........................................................90
Where was PTA Applied for? .........................................................91
Represented and Unrepresented Applicants ...................................93
Time Taken for Applications to be Processed .................................94
Determination on the Papers, and Oral Hearings ...........................96
Judicial Time Taken to Hear PTA Applications ..............................97
Permission to Appeal Granted by the Court Below ........................99
The Journey of an Application: an Applicant’s Eye View of the
Court of Appeal .......................................................................100
7 The Judges ...................................................................................105
Leading the Court: Masters of the Rolls ......................................105
The Court Today .........................................................................109
Who Goes Upstairs? ....................................................................111
Annex A: Masters of the Rolls, 1873–2006 .................................113
Annex B: The Judges of the Court of Appeal(Civil Division) .......114
8 Judgments ....................................................................................123
Individuality and Collegiality .......................................................123
Judgments: Single, Multiple or Composite ...................................126
Prolixity of Judgments .................................................................129