The court heard a renewed application for leave to appeal. A single Lord Justice had directed that any oral renewal of the application for permission should be heard by a court of two, of which he was to be a member. Objection was taken to him being a member of the court, having already given his opnion on the papers.
Held: The renewed application could by heard by a court including the judge who had rejected the original request on the papers.
Thorpe LJ: ‘The manifest intention of the practice direction is to enable applications for permission to be dealt with by a single judge of the court on paper in much the same way as the application for permission is dealt with by the trial judge on paper. It is important that the single Lord Justice should have a profound understanding of the case and of the arguments advanced in support of the application for permission. To ensure that he receives such papers as would be conventionally before the court at an oral hearing under the former practice he also now has the advantage of a full skeleton argument supporting the application for permission. Therefore his refusal on paper is a considered and reasoned refusal after full consideration of all relevant material, including the applicant’s detailed submissions. In the majority of cases it is intended to be the end of the application for permission unless the single Lord Justice has fallen into manifest error or unless there has been some unexpected subsequent development. So it seems to me that the right to require a subsequent oral hearing has a real purpose and function in the minority of cases. Of course the importance that we attach to oral argument has always been a distinguishing characteristic of our forensic system. But ordinarily there must be more than that to justify renewal. Perhaps on further consideration the advocate has perceived a submission not previously advanced. There might also be circumstances in which subsequent to the signing of the provisional refusal there was some unexpected development in relation to the appeal or some development of the relevant precedent law.’
Mummery LJ: ‘The course taken could not possibly be regarded as a breach of Article 6 of the European Convention on Human Rights. The first sentence of that Article provides:
‘In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
The procedure laid down is that applications for permission to appeal are made ex parte and they are considered on paper. The rules require that, in support of the application for permission to appeal, the party seeking to appeal will submit a skeleton argument. That sets out all the points which he would wish to pursue on the appeal. The single Lord Justice who considers it is able to form a view whether or not the appeal on those grounds has a real prospect of success. There has therefore been a fair hearing, within a reasonable time of an ex parte application. That hearing was before an independent and impartial tribunal. An oral hearing was requested. This oral hearing is in public. There is no breach of any common law principle of procedural fairness which, like Article 6, requires that a hearing takes place before an unbiased tribunal or court. There is no requirement that every application shall receive an oral hearing. It is appropriate that an ex parte application for permission to appeal should be considered initially as a paper application. Mr Turner [counsel making the application] says that if the Lord Justice who has indicated that he is minded to refuse and gives reasons for it sits on the oral hearing that renders the oral hearing pointless, because it is taking place before a judge who has already made up his mind. That is a misunderstanding of the procedure. The Lord Justice who has indicated that he is minded to refuse leave to appeal is obliged to consider the matter at the oral hearing in the light of any further points. The oral hearing is not an appeal from an earlier decision. These points may range from updating the court on matters which have occurred since the application was considered in July; drawing the court’s attention to new authorities which had not been discovered at the time of submitting the skeleton argument or had not been decided and reported at that time. The oral hearing also provides an occasion for dealing with errors and omissions in the reasons stated in the minded to refuse letter. The oral hearing is not pointless.
I agree with my Lord as to the circumstances in which an application for an oral hearing is conducted after the matter has been fully considered on a paper application. Mr Turner’s objection to the propriety or validity of the constitution of this court should be rejected.’
Judges:
Thorpe LJ, Mummery LJ
Citations:
[2000] 1 FCR 75
Jurisdiction:
England and Wales
Cited by:
Cited – Rezvi v Air Canada CA 14-Feb-2002
The claimant renewed her application for leave to appeal, but had first asked the judge to recuse himself for apparent bias having already expressd an opinion on the papers submitted.
Held: Reconsideration by the same judge who had refused . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice, Human Rights
Updated: 14 May 2022; Ref: scu.248330
