R Siddiqui v Lord Chancellor and Others
| Jurisdiction | England & Wales |
| Judge | Sir Timothy Lloyd |
| Judgment Date | 10 May 2019 |
| Neutral Citation | [2019] EWCA Civ 1040 |
| Date | 10 May 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0444 |
[2019] EWCA Civ 1040
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MRS JUSTICE CUTTS)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Timothy Lloyd
Case No: C1/2019/0444
Mr N Davidson QC and Mr R O'Brien (instructed by the Applicant) appeared on behalf of the Applicant
Ms Shaheed Fatima Q.C. and Mr Eesvan Krishnan (instructed by the Government Legal Department) appeared on behalf of the Respondent
This is an application for permission to appeal against the refusal by Cutts J on 19 February this year of permission to apply for judicial review. That judgment was given following a hearing at which counsel were heard for the applicant, Mr Siddiqui, and for the respondent, the Lord Chancellor. In accordance with the normal procedure on judicial review permission applications the matter had first been considered on the papers. That was by Dingemans J, who refused permission on 17 January.
The subject of the judicial review for which permission was sought, and is sought by way of the proposed appeal, is Rule 52.5 of the Civil Procedure Rules as it was amended in 2016 by the Civil Procedure (Amendment No.5) Rules of 2016, SI 2016/768. Prior to that amendment it had been the case for a long time that, if permission to appeal was refused by a judge of the Court of Appeal on a consideration of the application on the papers, the applicant was entitled in almost all cases to an oral hearing at which the application could be renewed. The only exception was of cases in which the application was stated by the judge dealing with it to be totally without merit, in which case there was no right to an oral hearing. The effect of the amendment in 2016 was to remove the right to an oral renewal hearing. That is the result of Rule 52.5(1), which says that, where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing except as provided for under paragraph (2). Paragraph (2) is as follows:
“(2) The judge considering the application on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing.”
Then there are ancillary provisions including that the oral hearing is to be listed no later than 14 days from the date of the direction unless the court otherwise directs.
So, whereas previously the disappointed applicant, refused permission on the papers, had a right within (if I remember right) seven days to request an oral hearing, which would take place in due course, now there is no such right. The judge who looks at the matter on paper may direct that an oral hearing take place and must so direct if he or she is of the opinion that a fair determination requires an oral hearing. The applicant, Mr Siddiqui, contends that the position resulting from this change is unlawful for one or both of two reasons: first that it is incompatible with Article 6 of the European Convention on Human Rights and therefore the Human Rights Act 1998; and, secondly, that it involves a breach of the common law principle of ensuring access to justice.
Given that the application is in the context of judicial review and of permission to apply for judicial review, Mr Davidson for Mr Siddiqui has reminded me of rule 52.8 whereby, if I consider that there is merit in the application, I can, instead of granting permission to appeal, grant permission to apply for judicial review so that the matter can go to a hearing at first instance, rather than going to a substantive appeal which might then lead to a reference back to first instance.
The challenge in the present instance arises from a refusal of permission to appeal to Mr Siddiqui on the papers by Irwin LJ in relation to an appeal against orders of Foskett J, first of all dismissing his claim that he had brought to trial against Oxford University [2018] EWHC 184 (QB) and secondly in relation to the judge's order for costs following that trial [2018] EWHC 536 (QB). Nothing for present purposes turns on those proceedings beyond the fact of the refusal of permission to appeal without there being an oral hearing of the application for that permission in the Court of Appeal following Irwin LJ's decision to deal with the matter in the way that he did on the papers. Given that the challenge is to an amendment of the rules which has had a significant impact on the workload of the Court of Appeal, the applicant's representatives asked the court to consider listing the case before someone who had not been a member of the court at the time of the 2016 amendment. That is why the case is listed before me, because I had retired from judicial office before that date. Also, given the nature of the issue in the proceedings, it seemed to me appropriate to exercise my discretion under rule 52.5(2) to direct that the matter proceed to an oral hearing.
For Mr Siddiqui, Mr Davidson accepts that although Article 6 applies to an application for permission to appeal, it does not justify a general proposition that there must always be an oral hearing of a permission to appeal application. Whether the requirements of Article 6 are met in any given case depends on consideration of the nature of the filtering procedure and its significance in the context of the civil proceedings as a whole: see Hansen v Norway (application no. 15319/09), judgment of the European Court of Human Rights on 2 October 2014, and R (Dunsford) v SSHD [2006] 1 AC 245. Mr Davidson relies on material from the consultation process which preceded the rule change in order to show that in the present instance the provisions of Article 6 do require that there should be a right to a hearing. The rule change was proposed in order to alleviate the burden on the Court of Appeal at a time when there was no prospect of the number of the members of court being increased sufficiently to cope with the relevant workload without such a change. I shall refer to the material in that respect in a moment.
The consultation which preceded the rule change generated a range of views in response, some of which, including from then sitting judges, were seriously concerned about the removal or attenuation of the provision for an oral hearing on a permission to appeal application, especially in cases where the applicant is in person, and many of the respondents to the consultation were therefore opposed to the proposed change being made. Mr Davidson showed me statistics calculated in the course of that consultation exercise, which showed that a proportion of successful appeals were cases in which permission to appeal had been refused on paper but was granted at the...
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