Problems with backlog and delay in the Court of Appeal is well known to commercial practitioners. The backlog of cases waiting to be heard (at both the permission stage and on substantive appeal) is continuing to grow, as there is a significant shortfall in the amount of judicial time available to deal with the increased amount of work coming into the court each year.

With zero prospect of increasing judicial resources (according to the Master of the Rolls), another solution has become a necessity. Accordingly, a package of reforms aimed at reducing the court’s growing workload was put to the judges of the court in March this year.

That package included proposals for internal administrative changes within the court (such as increasing the number of judicial assistants) as well as legislative measures to re-route certain appeals to the High Court. There were also two key proposals, which would involve changes to the Civil Procedure Rules (CPR), namely:

  • Removing the automatic right to an oral renewal of permission to appeal applications that have been refused on paper.
  • Raising the threshold test for permission to appeal to the Court of Appeal from a “real prospect of success” to a “substantial prospect of success”.

The first of those changes is to be introduced from 3 October 2016, under CPR changes effected by the Civil Procedure (Amendment No. 3) Rules 2016.

The second proposal to raise the threshold test for permission to appeal from a “real” to a “substantial” prospect of success has not yet been approved by the Civil Procedure Rule Committee (CPRC) and has been “adjourned for further review”.

Removal of right to oral renewal on permission applications

Under the new CPR 52.5, the default position is that permission applications will be determined on paper, unless the judge exercises discretion to “call in” the application for an oral hearing. Judges will have a duty to do so if they are of the opinion that they cannot fairly determine the application on paper.

The CPRC has expressed concern that this change will result in a denial of justice through meritorious appeals being wrongly excluded at the permission stage on the decision of one Lord Justice on the papers. That is arguably of increasing importance with the growing numbers of litigants in person.

It will be interesting to see how many permission applications will be "called in" for oral hearing, as judges adjust to a system where they must be conscious that a decision to refuse permission on the papers will be the end of the line for a would-be appellant.

Raising the threshold for appeals

In practice, the distinction between a “real” prospect of success and a “substantial” would be highly susceptible to the subjective views of the individual judge considering the application.

Further, there is force in the argument that raising the threshold has the potential to undermine the court’s broader role in clarifying and shaping the law. For example, as the Bar Council noted in its consultation response (which opposed any change to the threshold), one must wonder whether an important case such as Denton v TH White would have ever made its way to the Court of Appeal if the appellant had been required to show a substantial prospect of success.

On the face of it, it seems unlikely that prospective appellants would be dissuaded from pursuing an appeal purely out of concern that it might be adjudged to fall within the band between a “real” and “substantial” prospect. Accordingly, such a change may not have any significant impact on the number of cases in which permission is sought.

It remains to be seen whether there is appeal to the new appeals processes. Watch this space.