Apr 20 2008
Leave to appeal to the House of Lords
Simmers v Innes, 2008 UKHL 24, in which I must declare an interest as I acted for the respondent, is the third Scottish appeal to the House of Lords in a year in which the appeal was refused without the respondent being called on to reply (the others were Wilson v Jaymarke 2007 UKHL 29 and Clarke v Fennoscandia 2007 UKHL 56, in which I acted for the appellant in the Court of Session but not the House of Lords).
In Jaymarke, Lord Hope said:
16. Section 40(1)(a) of the Court of Session Act 1988 enables a party against whom a final judgment has been pronounced in the sheriff court, as happened in this case, to appeal from the Inner House to the House of Lords without leave. He does not require to seek leave from the Inner House, nor does he require to seek the permission of this House before doing so. This is a privilege which is not enjoyed by litigants in the other parts of the United Kingdom from which appeals come to this House. An appeal to the House of Lords from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland may only be brought with the leave of the Court of Appeal or of the House of Lords: Administration of Justice (Appeals) Act 1934, section 1(1); Judicature (Northern Ireland) Act 1978, section 42. It has been suggested that the privilege should be discontinued when the jurisdiction of the House of Lords is transferred to the new Supreme Court. But the effect of section 40(3) of the Constitutional Reform Act 2005 is that it will continue in the case of that court too. Nevertheless the debate on this issue must not be regarded as closed. If it is at risk of being abused, the public interest may require that the privilege be looked at again.
Leave to appeal to the House of Lords is in fact required in one important class of final judgments in Scotland: those under the Tribunals and Inquiries Act 1992: section 11 (7). This has never seemed to be an unfair requirement. Leave to appeal acts as a filter against hopeless appeals. And it assists those advising potential appellants to have a relatively quick and cheap filter, rather than discover only on the day of the full hearing that their optimism was misplaced. This may encourage some applications. Proportionately, there are far fewer appeals from Scotland than there are applications for leave to appeal from England: in the 2006 judicial statistics, the ratio was 8 to 189 (of which 42 granted).
The Civil Courts Review consultation asked whether there should be a general requirement for leave: paragraph 4.60. The Faculty of Advocates thought there should not, but gave no reasons. It has been suggested that retaining the right to appeal without leave would encourage some litigants to come to Scotland rather than England.
I suggest that a requirement for leave be introduced, if indeed appeals to London are to be retained at all: a matter which, given the end of the Civil Appeals Bill, requires to be considered in Westminster: see this account.
