The Law Commission

PART IX RENEWED APPLICATIONS AND APPEALS

Renewed applications

9.1      In the consultation paper we invited views as to the scope for making improvements to the arrangements for the initial consideration and renewal of applications for leave (preliminary consideration and preliminary hearing) and for resolving the dispute as to which was the appropriate procedure where there was an overlap between the power to renew and appeal. At present in civil cases a refusal of leave on paper may be renewed but not appealed.^[1] In a criminal cause, a refusal of leave (or a grant on terms) made either with or without a hearing can be renewed to the Divisional Court.^[2]
9.2      We asked whether the existing arrangements for the initial consideration and renewal of applications for leave operated fairly, or required more explicit justification.^[3] The majority of those who commented on the point thought that the present situation was satisfactory.

Appeal against a refusal to allow an application to proceed to a substantive hearing

9.3      At present where the Court of Appeal does not grant leave on a renewed application for leave to apply for judicial review, that is an end of the matter. The House of Lords has no jurisdiction to hear an appeal against the refusal of a renewed application for leave.^[4] Where the Court of Appeal grants leave on a renewed application, the application is generally remitted to be heard by a single judge, but the Court of Appeal may, in exceptional circumstances, proceed to hear the substantive application, for example, if an appeal to the Court of Appeal is inevitable because the judge finds herself or himself bound by a judgment of the Divisional Court.^[5]

Setting aside an order permitting an application to proceed

9.4      At present a respondent may apply to have the grant of leave to move for judicial review set aside.^[6] The grant of leave will only be set aside if the respondent can show that the judge's decision that the case was fit for further consideration at a substantive judicial review was plainly wrong.^[7] It has been said that the procedure should be invoked very sparingly.^[8] We consider that the number of applications to set aside will be reduced by the potential for increased respondent participation at the initial stage of an application for judicial review.^[9] For this reason we propose that the possibility of a respondent "challenging" an order permitting an application to proceed in this way should be stated in Order 53 but that a time limit on making such application should be imposed. Accordingly we recommend that it be stated in the Rules that any application by a respondent to set aside an order that an application for judicial review may proceed should be made not later than 28 days beginning with the day on which the respondent is served with the notice of application (Draft Order 53 rule 17(3)).

Appeal from refusal to set aside an order permitting an application to proceed

9.5      Where a respondent's application to set aside is not successful we consider that it is incompatible with the nature of the initial stage as a filter mechanism to eliminate the unarguable case to allow an appeal to the Court of Appeal.^[10] In such cases one judge will have allowed the application to proceed to a substantive hearing either on the papers or at an oral hearing. Another judge will have considered and rejected the respondent's application to set aside the order that the preliminary application may proceed to an inter partes hearing. The respondent will have an opportunity to argue its case again at the substantive hearing on the application for judicial review. In our view to permit an appeal in these circumstances would be productive of delay and cost and turn what is essentially a preliminary filter stage in the proceedings into a summary process. Accordingly, we recommend that no appeal shall lie to the Court of Appeal from an order made following an application to have an application for judicial review set aside (Draft Order 53, r 17(4)).
9.6      In the consultation paper we identified a current difficulty for applicants where the respondent has applied to have leave set aside.^[11] There is conflicting case law as to whether a challenge by the applicant in the Court of Appeal to a judge's order setting leave aside constitutes a renewed application for leave to move for judicial review or an application for leave to appeal against the order.^[12] Both the Treasury Solicitor's Working Group and the Lord Chancellor's Department considered that the opportunity should now be taken to amend the Rules so as to resolve this question. The nominated judges considered that the correct procedure is for the applicant to renew his or her leave application.^[13] An applicant would not therefore be obliged to seek leave or serve a Notice of Appeal. We agree and accordingly recommend that it be made clear in the Rules that access to the Court of Appeal to challenge an order setting aside a decision to allow a preliminary application to proceed is by way of a renewal of the original application (Draft Order 53 rule 17(4)).

Appeal from refusal of substantive applications for judicial review

9.7      There was no support for the suggestion made in the consultation paper that in civil cases appeals to the Court of Appeal from the High Court (or to the House of Lords from the Court of Appeal) should be restricted by a leave requirement with a test that the appeal raised a point of law of general public importance.^[14] Opinion was more divided about the introduction of some requirement for 1eave.^[15] During the course of our consultation exercise, however, the Rules have been amended following a separate (and rather more limited) consultation by the Lord Chancellor's Department. Since October 1993 it has become necessary to obtain leave to appeal to the Court of Appeal against decisions made at the substantive hearing of almost all judicial review cases.^[16] The rule change, while tightening things up, is less restrictive than the reform we suggested. In the light of the recent amendment to the rules we make no recommendations concerning appeals from the High Court to the Court of Appeal.
9.8      At present, if the Court of Appeal makes a substantive order on a judicial review application, there is a right of appeal, with leave, to the House of Lords. In a criminal cause or matter an appeal from the Divisional Court lies direct to the House of Lords, and leave is required (together with a certificate that a point of law of general public importance is involved which ought to be considered by the House of Lords). No evidence emerged on consultation that the absence of a right to challenge a Divisional Court's refusal of a certificate causes any substantial injustice. We therefore make no recommendations for change.
9.9      In the consultation paper we also suggested that in criminal cases it should be possible to appeal to the Court of Appeal as an alternative to the House of Lords, where the High Court certifies that a point of general public importance is involved.^[17] The nominated judges, while recognising the anomaly that appeals in criminal cases lie from a Divisional Court to the House of Lords, considered that the pressure of business in the Court of Appeal (Criminal Division) would not permit an appeal to that court in the foreseeable future. Further, they questioned the wisdom of having an appeal from a lord justice and one or two puisne judges to a lord justice and two puisne judges. In the light of this response we make no recommendations for change.

Note 1   O 53, r 3(4). The application will be heard by a single judge sitting in open court unless the court directs that it should be heard by the Divisional Court: O 53, r 3(4)(b). However, where the first leave application was made at an oral hearing, further applications must be made to the Court of Appeal.    [Back]

Note 2   O 53, r 3(4)(a). In a criminal cause the effect of s 18(l)(a) of the Supreme Court Act 1981 it that no appeal can be made to the Court of Appeal (whether in relation to leave or on the substantive application).    [Back]

Note 3   Consultation Paper No 126, para 12.10.    [Back]

Note 4   Re Poh [1983] 1 WLR 2.    [Back]

Note 5   Practice Direction (Judicial Review: Appeals) [1982] 1 WLR 1375; R v Immigration Officer, Ex p Chan [1992] 1 WLR 541, 543H.    [Back]

Note 6   The court has an inherent discretion to set aside the application of an order made ex parte and revoke the grant of leave (Becker v Noel (Practice Note) [1971] 1 WLR 803) in addition to the power under O 32 r 6.    [Back]

Note 7   Ie that there was a “clear knock out blow” to the applicant’s case: Simon Brown J in Secretary of State for the Home Department, ex p Sholola [1992] COD 226.    [Back]

Note 8   R v Secretary of State for the Home Department, ex p Chinoy [1991] COD 381 per Bingham LJ.    [Back]

Note 9   See recommendations in Part IV above.    [Back]

Note 10   Cf, however, O 59 r 1A(6)(bb) and the note at para 59/1A/22 of the White Book which states that the grant or refusal of an application to discharge the grant of leave to move for judicial review is an interlocutory order from which an appeal lies. Our recommendations would abolish this.    [Back]

Note 11   Consultation Paper No 126, para 12.7. See O 32 r 6 and R v Secretary of State for the Home Department, ex p Begum [1990] COD 107 (CA).    [Back]

Note 12   R v Secretary of State for Home Department ex p Khalid Al-Nafeesi [ 19901 COD 262; cf R v Secretary of State for the Home Department, ex p Begum [1990] COD 107. See now R v Secretary for State for the Home Department, ex p Ryoo (Soon Ok) (1992) 4 Admin LR 330.    [Back]

Note 13   The arguments in favour of this included: the desirability in cases like R v Panel on Takeovers and Mergers, ex p Datafin Plc [1987] QB 815 for the Court of Appeal to retain a residual jurisdiction to deal with substantive applications itself, eg where the Divisional Court or single judge was bound by an earlier decision. Those against included: the Court of Appeal is, and should be, a court of appeal and not exercise original jurisdiction.    [Back]

Note 14   Consultation Paper No 126, para 12.9.    [Back]

Note 15   While some supported Lord Donaldson's suggestion (R v Foreign and Commonwealth Oflice, ex p Kalibala, The Times 23 October 1991 and Annual Report of the Court of Appeal, 1990-91), others, including Carswell LJ, the Administrative Law Bar Association and the Society of County Secretaries, were against any requirement for leave to appeal in judicial review cases.    [Back]

Note 16   Rules of the Supreme Court (Amendment) Order (SI 1993 No 2133): leave to appeal must be sought in all cases except in a decision made in relation to the Immigration Act 1971, the British Nationality Act 1981, the Immigration Act 1988, the Asylum and Immigration Appeals Act 1993 or “any enactment relating to nationality or immigration which for the time being is in force in any part of the United Kingdom”.    [Back]

Note 17   The Lord Chancellor’s Department, in its response, saw merit in making use of the expertise of the Criminal Division, Court of Appeal in having a supervisory jurisdiction over inferior courts (in Crown courts and magistrates courts) through judicial review and the case stated procedure, as well as aligning the procedure with that in civil cases.    [Back]