 |  |
|
 |
 |
 |
 |
|  | |  | |
This Proposal must be assessed in the context of the Working Party's
recommendations :-
(a)
that masters should have a discretion to deal with interlocutory applications on
the papers, to refer them for hearing to the judge or to a master;
and,
(b)
that an appeal from the master to the judge should be available as of right.
The Working Party considers that in this context, it would be undesirable to adopt
Proposal 46. A party's chances of securing leave to appeal to the Court of Appeal
should not be dependent upon how a master exercised his discretion as to whether the
interlocutory application should be dealt with by a master or be sent directly to a
judge. The master should exercise his discretion freely and should not be inhibited
from dealing with a case which merits immediate disposal on the papers or from
directing a hearing before the master, for fear of depriving the parties of a hearing
before the Court of Appeal.
The "reasonable prospects of success" test ought to provide a sufficient filter, and
costs orders a sufficient deterrent, against unwarranted interlocutory appeals to the
Court of Appeal without also adopting a "third-tier" basis of exclusion. The Working
Party accordingly recommends against adoption of Proposal 46.
Recommendation 117: Proposal 46 (for a rule generally against granting leave
to appeal from a decision itself given on appeal) should not be adopted.
Notes
Recommendation 85.
Recommendation 109.
|
 |
|