Written evidence submitted by Steven Gee QC (OPJ0047)

  1.                The Civil Division of the Court of Appeal is a central part of the Justice system.  It hears cases of the greatest importance for individuals. Family cases about children. Judicial review cases which are the final safeguard against unfair administrative decisions. Cases about people’s homes, and their freedoms. Most cases have first to be heard by the full Court of Appeal before there can be any question of an appeal to the Supreme Court. It lies at the centre of the system holding the structure together. It has about 4,000 cases a year.


  1.                We have a Court of Appeal because we are human and we can all make mistakes. All common law jurisdictions have them. They provide public confidence in the justice system. The Common law over the centuries has been administered in public. Anyone can go and watch a case. Newspapers, Television and social media tell us what is going on.  It is therefore somewhat shocking to be told that three quarters or more of cases in the Court of the Appeal are conducted to a final outcome without publication of the evidence or the arguments, and are decided behind closed doors with no published reasons.


  1.                How has this happened? The need to obtain leave to appeal is a recent event in the evolution of the Court of Appeal.  It applies almost universally. It used to be done in public by two or more judges with argument and reasons given in open court.  Then the system was changed to where a case would be considered on papers by one judge.  This was done in the privacy of the judge’s room. If the appellant wished he could renew his application orally.  There used to be a time when an appellant could ask for a different judge to hear the oral renewal so that a new judge would come unburdened by prejudices or errors made on the papers.


  1.                In 2016 the MOJ objected to the cost of maintaining the system. There was a public consultation about abolishing the right to an oral renewal.  Judges were asked whether abolition might lead to more mistaken final decisions by them.  The General Council of the Bar of England and Wales put in a powerful condemnation of the proposal.  They referred to the long English common law tradition of hearing oral argument in court and said in June 2016:


“17. As we set out both in our November 2015 and March 2016 submissions, we consider

the right to renew an application orally to be an important feature of the appeal system. The

casting of the right of oral renewal as a ‘second bite of the cherry’ fails to recognise the place

this safeguard has in the integrity of the overall appeal process. It permits the users of the

system to do so with confidence. The fact that there are a number of appeals which are refused on paper and then allowed on oral renewal should not be a matter for regret, as paragraph 33 of the Committee’s Background Information appears to suggest. Rather it demonstrates that it is not always possible for a LJ to achieve a just outcome on the documents.



20. We do not support the abolition of the right of oral renewal….”



  1.                To no avail. The decision to refuse permission to appeal on paper has become the final decision of the Court of Appeal with the added feature that there cannot be any recourse to the Supreme Court.  The vast majority of appeals are not given permission. In 2019 this was for about three quarters of all cases.  The MOJ has been unable to assist with more up to date statistics. Where permission is refused the litigation is over. This is except in a tiny number of cases where the appellant can prove that the integrity of the earlier litigation process, had been critically undermined, the Taylor v Lawrence jurisdiction.


What is the present system?

  1.                An appellant without an extension of time has only 21 days to lodge the grounds of Appeal and an argument which is no more than 25 pages. The Notice of Appeal can only contain brief grounds of appeal without added explanation. The rules are drafted so that the 25 pages permitted by them must fit all cases.  This can be a struggle for even the most eminent of counsel faced with complexity and the threat of finality. Much time is spent editing to fit within the page limit. The restrictions on presentation in more complex cases increase costs and preparation time. It is not permitted in the skeleton to incorporate by reference material from previous skeleton arguments. This penalises appellants where a judge at first instance has not given a reasoned judgment on one or more points. The competing arguments then have to be set out at length in the skeleton.  The Grounds of Appeal must not become a refuge allowing a few extra words to explain the grounds. These Rules enhance productivity of a judge but not necessarily the quality of justice.


  1.                When a first instance judge decides to give judgment may not be predictable. Often it is just before Christmas or Easter to get the case off the judge’s desk in time for his holiday. The 21 day time limit includes weekends and public holidays, when client, solicitor and counsel can be expected to be abroad or with their families. A litigant in person, a child or a dependant may become unwell. An application for an extension itself takes time to prepare and lodge, and further time to be decided.  If not granted the appeal may through applying be made out of time. There is often no judge available to make a prompt decision. The pressures imposed by the time limit regime can interfere with justice.


  1.                We live in a society where more and more people cannot afford a lawyer even for a case of the greatest importance. Inflation, and the predicted prolonged recession are going to produce more and more people who cannot afford a lawyer. Obtaining pro bono help is chilled by the time limits and the exclusion of oral process. Litigants in person have no training in the law. They often have missed an essential point.  They often do not have the advocacy skills. They are at an inbuilt disadvantage carrying the emotions of their own case. They may not have ready access to computers and technology or law reports, or be able to produce paginated electronic bundles. In practice litigants in person often come with cases camouflaged by the consequences of social deprivation and poverty.


  1.                In 2015 a judge in the Court of Appeal refused permission based on points on on which the appellant had won in the court below.. The case went on to an oral hearing before a different judge and the appeal was allowed unanimously by a strong full court presided over by the Master of the Rolls. Before the change there were cases of vital important for the individual and children where eventually justice could be and was done by the Full Court of Appeal. The change is not limited to cases doomed to fail where refusal of permission is a substitute for the inevitable.



  1.            What about the position today? These are cases in which justice is also not seen to be done a requirement which stands at the foundation of English civil rights and public confidence. The lack of publication of the arguments, no oral hearing and no published judgments has the consequence that no-one knows to what extent justice is not being done. We are fortunate in our judges but everyone is human. Whilst some judgments on paper show every sign of being painstakingly prepared, others do not. When a judge in a judgment of less than a page in length criticizes the presentation, a member of the public might be forgiven for thinking he had not understood the case.


  1.            Throughout the common law world argument on the law includes the effects of social changes. The Mareva injunction was a response to the ability to move funds abroad at the press of a button. In the United States the opportunity to have Mareva injunctions in the Federal Courts was lost when Justice Ginsburg found herself in a minority of four when the majority decided that when the common law was adopted in 1789 Founding Fathers had excluded development from social change. Nothing is permanent except Change. The common law changes with changes in society. The present system excludes cases where with more mature argument it can be seen that there is a need for the common law or court practice to develop. Our case law has become more ossified. English law is less attractive to businessmen. In England we have a strong tradition of reasoned criticism of judgments by academics in books and in articles.  This keeps the law up to date. Challenges include cryptocurrencies and the development of English law on intangible entitlements produced in the block chain era. No-one can write about arguments and judgments which are not published.


  1.            We all need to know what is going on in the world around us. For this the media are our ears and eyes. They are excluded for all these cases which end with refusal of permission on paper.



  1. The judge in the privacy of his own room is a ready victim of his own limitations. He does not have the public eye on him. He has no-one to whom he can ask a question. He has a limited time allocated within which to consider the case. An earlier case may run over, a later case may impose a deadline. He cannot ask a question to ensure he has understood all the materials. There is no-one in the room who might help him avoid error. “A much talking judge is an ill-tuned cymbal.” — Francis Bacon. A judge who does not stop to listen acts on his own prejudices.  On paper judges are deciding cases based on assumptions not notified to the appellant and as was done in the 2015 case, on which he has not been heard.


  1.            As for the member of the public he is excluded from the room. He does not know what the judge has not read or whether has appreciated the significance of what he has read. He gets a page or two to explain what has happened but no chance to address it.



  1.            Then there are Commercial, Intellectual Property and other Chancery cases from abroad. The availability of a reliable justice system is key to encouraging and obtaining and keeping investment. Often this is done through contracts with agreed jurisdiction or arbitration clauses, or the creation of intellectual property rights which would normally be litigated in England. These include users of the system from abroad. Public confidence includes global confidence in the due administration of justice.  We have to be constantly alert or we risk becoming like the Emperor with his new clothes. 


  1.            Then there are all the professionals involved in the justice system. Solicitors, trainees, costs lawyers, accountants, expert witnesses, transcript writers counsel, and pupils. Those who provide the technology used for the administration of justice. The abolition of oral hearings chills the education of pupil barristers and litigation trainees who no longer see oral advocacy for most appeals. It reduces the professional work available, limits our economy, HMRC’s tax revenue, and the number of jobs available for our children.


  1.            In practice few cases go to an oral hearing. An experienced judge could spend a few moments with the papers direct an oral hearing and often save substantial time. The MOJ’s understandable concerns about having to pay for an extra judge or two overlooks the costs to everyone else including those who are denied justice.


What needs to be done

  1.            The present system of justice done privately behind closed doors should be discussed by this Committee and a Report made on whether the present system should be retained in its present private form free from public view and public accountability.  This question is fundamental. It affects everyone and our children. It is a matter for this Committee and the House of Commons.


  1.            There needs to be a thorough review of the current rules in the Court of Appeal on permission to appeal.  There should be sufficient flexibility within the Civil Procedure Rules on presentation, time limits, page limits and content to allow for adequate presentation of an appeal. Restricting how a case can be argued restricts decision making. The Rules should take into account the outside pressures on lawyers, litigants and their families, persons who are disadvantaged and vulnerable, and the complexities of different cases. There must be flexibility so important points are not missed through the curtailment of communication imposed by the current rules.


  1.            The Committee can do this by writing to the Rules Committee and asking for a written report on a review of the rules, carried out by that Committee. It should be suggested that the Committee liaises with the General Council of the Bar for England and Wales, the Law Society and the Citizens Advice Bureau and in its Report sets out their points and those of the public, and whether they have been addressed.


August 2022