Jan 20 2009

The new restriction on appeals to the Court of Session

In an earlier post, I described  how a new rule of the Court of the Session, Rule 41.59, had been introduced with the aim of cutting down rights of appeal from the Upper Tribunal to the Court of Session. My immediate concern at that time was the hole-in-corner way the Rule was made. The main concerns now are as to how it will work in practice, and also as to further proposals to extend it.

What does the new rule do?

Any appeal against a decision of the Upper Tribunal (which looks as if it will eventually subsume all or most United Kingdom statutory tribunals: but see below), will require leave to appeal. This must first be sought from the tribunal1. If leave is refused there, the Court of Session is now directed to refuse leave unless
“(a) the proposed appeal would raise some important point of principle or practice; or
(b) there is some other compelling reason for the court to hear the appeal”.

Does it make a difference?

The rules as to whether leave  is required to appeal from a particular decision have not always been consistent, and have varied from tribunal to tribunal (as they continue to do in the case of Scottish tribunals, which are not included in the new regime). When leave to appeal was required, however, there was no statutory test as to its grant or refusal. The approach of the Court of Session has been to grant leave whenever there seemed to be a point of practical importance to the parties and with reasonable prospects of success: Campbell v Dunoon and Cowal HA, 1992 SLT 1126 and Hoseini v Home Secretary 2005 SLT 550. Commonly, the application for leave to appeal was swept up into the hearing of the substantive appeal; see A v Home Secretary 2008 CSIH 59 for a recent typical example. No complaints as to this approach are known to have been made.

The new rule is far tighter. It mirrors an English formula which is, in England, applicable to second appeals within the court system: Civil Procedure Rule 52.13. The leading case on its application is Uphill v BRB, 2005 1 WLR 20702. Here it was said3It is only in an “exceptional” case that a second appeal may be sanctioned. The general rule is that the decision … on the first appeal will be the final decision. It is no longer possible to pursue a second appeal merely because the appeal is properly arguable or has a real prospect of success.” The first leg, “some important point of principle or practice“, is confined to “an important point of principle or practice that has not yet been established4. The second, which will therefore be what is usually argued, is further restricted: ” It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high” (but read paragraph 24 as a whole). The policy reason, incidentally, why the rule is so restrictively applied in England is, according to the Court of Appeal,5: “… because Parliament has made it clear that it wishes [such] disputes … to be dealt with, on the whole, at a level lower than [the Court of Appeal].” In Scotland, of course, Parliament has done no such thing: the new rule has no Parliamentary sanction or approval.

The intended consequence is that it will be far more difficult to obtain leave to appeal. A further problem is that the new test seems designed to operate as a threshold test, which cannot readily be combined with the substantive appeal; indeed, if it was, it would lead to the ludicrous situation of the court holding that there were no compelling reasons why leave to appeal should be granted, but if there had been the appeal would have been allowed. So appeals which are allowed to proceed will require two hearings instead of one: twice the delay, court time, and expense.

The Court of Session is not, of course, necessarily obliged to operate the same approach to this rule as the English Court of Appeal; and it is to be hoped that it will do so in a more flexible manner, particularly as the context is likely to be that there has been no full argument and no legal representation at the tribunal hearing, which may, indeed, not itself be Article 6-compliant in the absence of legal aid.

Is the Rule intra vires?

It may well be ultra vires. Once upon a time, the Court of Session could (and did) pass Acts to practically any effect. Its power to do so has long been constrained by statute; it is now found in the Court of Session Act 1988, section 5. This confers no power to affect substantive rights: Taylor v Marshalls Food Group, 1998 SC 841. It is a power to “regulate and prescribe the procedure and practice to be followed…”. It is “not intended to confer a blanket power to make acts of sederunt covering all aspects of proceedings in the Court of Session”: Taylor. It seems highly questionable whether a rule which provides that no appeal is to be entertained unless it passes a certain test is within the power. The laconic justification for the rule given by the Lord President’s Private Office to the Subordinate Legislation Committee does not really meet the successful argument in Taylor.

Why was it introduced?

It certainly wasn’t because the current business of the Upper Tribunal is likely to lead to a flood of appeals to the Court of Session. Other than from the Asylum and Immigration Tribunal, which is not yet part of the system (and may never be) there are only a few dozen such appeals a year. Reforms in the new tribunal structure are likely to reduce the number, not increase it.

Nor was it because there has been any groundswell of opinion that appeal rights should be restricted. The Civil Courts Review consultation paper did ask whether they should be623. Should there be a limit to the number of levels of appeal through which an action can progress? If so, how many levels would be appropriate? What provision, if any, should be made for exceptional cases and how should these be defined?” But there was no suggestion that there was any pressing need to do so.

Nor, in the responses to the consultation, was there support for onerous thresholds of the kind now introduced, or a limitation on the number of stages of appeal. Not one response, so far as I know, suggested that such changes should be introduced. Indeed, the Scottish judiciary explicitly rejected this idea. The Judges Council described the existing flexibility of approach, and concluded “On balance it is not thought that any major legislative innovation is necessary in this field.” The Lord President agreed.

So the answer seems to be: It’s a mystery. We have a significant policy change, which cuts down the rights of appellants, introduced with no obvious need, or policy justification, or consultation, or support. And we have no idea why. Because Acts of Sederunt (uniquely among Scottish statutory instruments) have no Regulatory Impact Assessment7, or any equivalent explanation, there is no published thinking-through of the consequences or impact or rationale of the rule at all.

What next?

The current proposal is to extend this restriction to appeals in asylum and immigration cases, which are relatively numerous compared to other statutory tribunals, by bringing them into the Upper Tribunal8. Thereafter it is predictable that it will be said it should be extended to Scottish tribunals such as the Mental Health Tribunal, the Lands Tribunal, the Additional Support Needs Tribunal, and so on. Then it will be said to be anomalous (as it will be) that it does not equally apply to Sheriff Court appeals and reclaiming motions. Then, if the new rule is operated as the Court of Appeal suggested in Uphill v BRB, the Inner House will have very little work to do except of its own choice.

Meanwhile, the Act of Sederunt is to be considered by the Scottish Parliament. Although Acts of Sederunt do not require Parliamentary sanction, they are notified to Parliament and considered by the Subordinate Legislation Committee which in the ordinary way, simply notes them. This particular one, however, was flagged by the Committee at its meeting of 18 November as “what appears to be an unusual or unexpected use of the power that is conferred by section 5 of the Court of Session Act 1988” and, the first time I think that an Act of Sederunt has been so treated, referred for consideration to the full Parliament.

  1. Tribunals, Courts and Enforcement Act 2007, section 13 (5). [back]
  2. Distinguished, however, in Esure Insurance Ltd v Direct Line Insurance Plc [2008] EWCA Civ 842 [back]
  3. Paragraph 17. [back]
  4. Paragraph 18. [back]
  5. Iftakar Ahmed v Stanley A Coleman and Hill, [2002] EWCA Civ 935 at para 2 [back]
  6. The background sections read: “4.62 If a requirement for leave to appeal were to be introduced, the question would arise as to whether a more onerous threshold should be applied to the second level appeal, for example, a requirement that there is a real prospect of success or that there is some compelling reason for leave to be granted.
    4.63 In some jurisdictions the concept of proportionality has been applied so as to limit the number of stages of appeal which may be pursued, for example, to allow only two appeals up the court hierarchy unless the case raises an important point of principle or practice of wider application which would justify the appeal being taken to a higher level. The Review will consider whether there should be a limit to the number of appeals through which an action can progress; the number of stages that would be appropriate in most cases; what provision should be made for exceptional cases; and how these should be defined.
    4.64 The Court of Session’s appellate jurisdiction under various statutes is extensive (see Annex C). Since statutory appeals to the Court of Session are traditionally dealt with in the Inner House, the Review will consider whether the Inner House is indeed the appropriate forum for the hearing of such appeals or whether some statutory appeals could be dealt with by a single judge at either Inner House, Outer House or sheriff principal level.
    4.65 The Review will also consider whether there may be advantages in the designation of specialist judges within the Inner House to deal with such matters as immigration…”
  7. See Report of Subordinate Legislation Committee, paragraphs 16 to 27. [back]
  8. See consultation responses here. [back]

3 comments published

3 comments published to “The new restriction on appeals to the Court of Session”

  1. Lindsay WattNo Gravataron 22 Jan 2009 at 4:47 pm

    It’s very simply government trying to make criticism of its behaviour more difficult to pursue. it also in a way makes the system more rigid, and unable to change with developing circumstances. The credit crunch has created circumstances we would not have recognised as possible 3 years ago. Problems with tribunals – particularly attempts by government to control them – may develop in the same way, but the courts will not be able to develop the law to meet those new circumstances.

    … Surprised the SNP aren’t interested.

    Lindsay Watt
    Dundee College

  2. Joe BryceNo Gravataron 30 Jul 2009 at 11:19 am

    Jonathan’s blog on this remains so far as I am aware the only resource or comment about it. I would be interested to hear from anyone who has experience of RCS 41.59 in action.

  3. JMNo Gravataron 08 Sep 2010 at 2:19 pm

    Thanks to Julius Komorowski for bringing to my attention the English Court of Appeal’s decision, in FA (Iraq) and PD (India) v SSHD [2010] EWCA Civ 827, on just when the appeal restrictions came into force. The Court held, putting it shortly, that the new restriction did not apply to any of the following classes of case:

    1. Where the hearing has taken place as a reconsideration and determination dated pre-15 February 2010, but promulgated post-15 February;
    2. Hearings taken place as a reconsideration pre-15 February and determination date promulgated post-15 February;
    3. First-stage reconsideration pre-15 February and second stage reconsideration heard after that date; and
    4. Reconsideration ordered pre-15 February and heard as an appeal to the Upper Tribunal by virtue of the transitional provisions after that date.

    Although the Act of Sederunt, unlike the English provisions, contains no express transitional provisions, the same logic seems to apply in Scotland.