The Law Society has welcomed a government decision not to raise the threshold for permission to take cases to the Court of Appeal as part of a package of reforms to reduce delays.
However, Chancery Lane expressed disappointment over the decision to remove an automatic right to an oral hearing when seeking permission to appeal to the court.
Earlier this year the Civil Procedure Rule Committee (CPRC) consulted on ways to reduce pressures faced by the Court of Appeal’s civil division. Work has increased by 59% in the past five years.
Committee chair Lord Dyson said that in an environment where there has been no increase in judicial resources, a serious backlog of cases is getting worse and delays are lengthening.
The proposed package of reforms included increasing the threshold for granting permission to appeal to the Court of Appeal from ‘a real prospect of success’ to ‘a substantial prospect of success’.
Responding to the consultation, the Society questioned the impact on perceptions of fairness of the justice system if a litigant whose appeal has a ‘real prospect of success’ were denied the right to have the appeal heard.
A ‘substantial’ prospect of success could also lead to satellite litigation over its interpretation and application, it warned.
A statutory instrument, which comes into force on 3 October, shows that the test will remain unchanged.
Society chief executive Catherine Dixon said Chancery Lane is pleased the threshold will not be raised, noting there is no evidence to suggest that the current test is not sufficient.
She added: 'It appears that the proposed changes were intended to reduce the Court of Appeal's workload. The court has many important functions to perform and it is essential that it is appropriately resourced.
'The redistribution of more ancillary matters is therefore sensible as it will free up the much-needed time of Court of Appeal judges to deal with substantive matters.
'However, if the CPRC are to draft rules relating to delegation of powers we would recommend that such duties remain with qualified court officers (ie solicitors and barristers).'
The statutory instrument states that where an application for permission to appeal is made to the Court of Appeal, the court will determine the application on paper.
However, the application could be determined at an oral hearing if the judge thinks it cannot be fairly determined on paper.
An explanatory memorandum published by the government states that the proposal was backed by most judges who responded to the consultation.
It was not supported by most practitioners and representative bodies – with the exception of the Association of Personal Injury Lawyers and human rights group Justice.
Those in favour thought it would substantially reduce the amount of judicial time spent on determining applications for permission to appeal. Those against were concerned that complex appeals benefit from oral discussion of written arguments.
Some litigants may also feel more comfortable expressing themselves orally, it was argued.
Dixon added: ‘While we are disappointed that the automatic right to oral renewal hearing has been removed, the court’s discretion to “call in” cases and request further information does provide some safeguards to vulnerable parties.
‘Nevertheless, there is still a risk that some applications - which haven’t been presented as strongly on paper as they would have in person (for example due to a language barrier) - will be dismissed as without merit.’