HL Deb 14 April 2000 vol 612 cc445-50

3.53 p.m.

Lord Bach

rose to move, That the draft order laid before the House on 22nd March be approved [14th Report from the Joint Committee].

The noble Lord said: My Lords, the Access to Justice Act 1999 (Destination of Appeals) Order 2000 is made under Section 56(1) of the Access to Justice Act 1999. The order makes amendments to existing routes of appeal. In his report Review of the Court of Appeal (Civil Division) published in September 1997, Sir Jeffery Bowman made recommendations for the same principles of proportionality and efficiency inherent in the civil justice reforms generally, to be applied equally to the workings of the civil appeals system.

Appeals affect three sets of rights. First, they affect the rights of the party who wishes to appeal. They also affect the rights of the other party who holds a judgment in his favour and wishes to resist the appeal. Finally, they affect the interests of other court users and the public interest in the Finality of litigation. An effective appeals system needs to balance these rights by ensuring that appeals are dealt with in ways that are proportionate to the grounds of complaint and the subject matter of the dispute. So far as is practical, it should also ensure that uncertainty and delay are reduced to a minimum. At some stage there must come an end to litigation. The question ever is: when and how? A fundamental part of the drive for proportionality is the need for appeals to be heard at the level most appropriate to the nature of the case. This order implements that sensible objective.

It is proposed to bring it into force at the same time as new rules for civil appeals which are to be introduced on 2nd May. The new rules strip away the existing confusing patchwork of appeal provisions and replace them with a common procedure.

This order does not apply to appeals in family proceedings. They are the subject of a separate consultation exercise which will end in late April. Amendments to family routes of appeal will then be considered in light of that exercise.

I turn to the changes the order will introduce. The changes were proposed in a consultation paper published in July 1998. The proposed routes of appeal were described, as noble Lords will well remember, during the passage through Parliament of the Access to Justice Bill and were set out in the Explanatory Notes to the Act. The order reflects those proposals. It provides, in Articles 2 and 3, for the following routes of appeal: from a decision of a district judge to a circuit judge; from a decision of a master, registrar or district judge of the High Court to a High Court judge; and from certain decisions of a circuit judge to a High Court judge.

The first two routes of appeal reflect existing practice set out in rules of court. These rules will be revoked from 2nd May by the Civil Procedure (Amendment) Rules 2000. It is necessary, therefore, to provide for these in this order. The third route of appeal mentioned is new, and provides the proportionality within the appeals structure which will ensure that appeals are heard at the correct level. Appeals that are heard at too high a level result in greater expense for the parties and more delay, which affects both the parties and other cases which ought to be heard by that appeal court.

The introduction of a new route of appeal from the circuit Bench to the High Court Bench means that some appeals, previously disposed of by the Court of Appeal, will in future be dealt with by the High Court. This is in line with the recommendations of the Bowman report which found the Court of Appeal was being asked to consider numerous appeals which were not of sufficient weight or complexity to merit the attention of some of our most senior judges.

So as not immediately to overload the High Court, some appeals from the county court will continue to be heard by the Court of Appeal. This is as a result of Article 4. The article provides that final decisions in multi-track cases and certain specialist proceedings are to be appealed to the Court of Appeal irrespective of the court of first instance. Although the majority of these cases will be determined either by a High Court judge or a circuit judge, the article will also embrace decisions of district judges and Masters of the High Court: for example, where the parties consent to a master or district judge hearing a multi-track case. The flexibility provided by the use of an order-making power will enable the Lord Chancellor to keep under review the appropriateness of such appeals to the Court of Appeal, and to make any further necessary changes.

Other provisions of the Access to Justice Act continue to ensure that those cases which merit the attention of the Court of Appeal will continue to receive it, irrespective of the designated route of appeal. These are set out at Section 57 of the Access to Justice Act. That section provides that the Master of the Rolls or a court may direct that an appeal that would otherwise lie to a county court or High Court should be heard instead by the Court of Appeal.

Article 5 makes it clear that, irrespective of the above routes, an appeal from any decision which was itself made on appeal to a county court or High Court must be made to the Court of Appeal, thus providing that the stricter test for second appeals in Section 55 of the Access to Justice Act will apply. This should ensure that, save in wholly exceptional circumstances, there should be only one appeal.

Articles 7 and 8 make consequential amendments to Section 16 of the Supreme Court Act 1981 and Section 77 of the County Courts Act 1984. These sections set out general provisions for appeals from the High Court and county courts. The order, however, is subject to any other enactment that provides a different route of appeal.

In accordance with Section 56(4) of the Act, the Lord Chancellor has consulted with the four judicial heads of division: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. They are all content with the order.

Finally, let me make it plain that it is the Lord Chancellor's view that the order is compatible with the European Convention on Human Rights. I commend the order to the House.

Moved, That the draft order laid before the House on 22nd March be approved [14th Report from the Joint Committee].—(Lord Bach.)

Lord Goodhart

My Lords, as the noble Lord the Minister knows, my colleagues and I on these Benches disagreed with many parts of the Access to Justice Bill. However, we fully supported the parts that dealt with the appellate procedure, and certainly in so far as the order implements those provisions we entirely support it.

There is no doubt that the Court of Appeal is currently seriously overloaded and that many cases that go to it simply do not justify its time. I believe that historically appeals from the county court used to go not to the Court of Appeal, but to a divisional court of the High Court, so in a sense this is returning to earlier practice. Perhaps the noble Lord will confirm my assumption that what is envisaged is that the appeal will go to a single judge of the High Court and not to a divisional court.

My only other point concerns Article 5. Where an appeal has gone from a district judge to a circuit judge in the county court, I am not clear why any further appeal should go to the Court of Appeal rather than to the High Court. Is it because only the Court of Appeal has the power to refuse on the grounds that the circumstances are not exceptional, or is there some other reason? If there is not, I cannot see why the order should not be strengthened by providing that the second appeal, if there is to be one, should go to the High Court rather than the Court of Appeal.

Subject to that, we are entirely happy to support the order.

Lord Kingsland

My Lords, the Opposition are also happy to support the order. As the noble Lord, Lord Goodhart, said, an important part of the Access to Justice Bill was to alter the basis on which appeals were entertained: but, as he also said, it was one of the least controversial parts of the Bill.

I note that the noble Lord, Lord Bach, stated that the noble and learned Lord the Lord Chancellor has certified that the order is in conformity with the European Convention on Human Rights. As he also said, the opportunity to appeal must be proportionate to the grounds of complaint. No doubt if the Government have got the question of conforming with the convention wrong, somebody will make an appropriate challenge.

At the time of the adoption of the order increasing the number of High Court judges, I asked the noble Lord, Lord Bach, whether there were any signs of similar pressures on the Court of Appeal that might lead the Government to increase that court's membership. Would it be fair to say that this order is an alternative way of dealing with such pressures?

Lord Bach

My Lords, I am very grateful to both noble Lords for their general support for the order, support which is not entirely unexpected. I shall try briefly to answer the questions that they properly raised.

My reply to one of the questions asked by the noble Lord, Lord Goodhart, is that the appeal will be to a single High Court judge, sitting on his own or her own.

As regards a second appeal going only to the Court of Appeal, and not via a High Court judge, appeals are now limited to two levels of appeal. Section 55 of the Act introduces a stricter test for permission, and second appeals will be restricted to those that merit the attention of the Court of Appeal. That is why the order is phrased as it is.

I turn to the concerns expressed by the noble Lord, Lord Kingsland. The order deals with appeals going to the correct level, not with judicial resources. I wrote to the noble Lord about the position of, the Court of Appeal. I do not have the letter in front of me and I suspect that he does not either. However, the comments he made today will be noted and if there is more up-to-date information I shall ensure that he has it. He should not link this order with that issue. I commend the order to the House.

On Question, Motion agreed to.

House adjourned at five minutes past four o'clock.