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23.2
The consultation response
There was a mixed response to this proposal. Some respondents, including the Bar
Association and the BSCPI, thought it might be worthwhile, subject to further
consultation, to introduce a questionnaire and for there to be some pre-hearing case
management as a matter of course.
The High Court masters were in favour,
commenting that there is presently much unnecessary correspondence between the
court and parties over time estimates, fixing dates and preparation of appeal bundles.
One respondent supported a rule or practice direction requiring skeleton arguments to
be filed with the Notice of Appeal, arguing that this would be "more time-efficient
from the practitioners' point of view, and less costly for the client".
However, the others who responded
– and crucially the great majority of the judges
of the Court of Appeal
– considered the proposed reform unnecessary and undesirable.
Their view was that only a few appeals require pre-hearing case management and that
the system is well capable of identifying these, enabling the court or the Registrar to
take the necessary steps. To require another form to be filled in and processed for
every appeal would be an unnecessary chore.
However, all the judges of the Court of Appeal considered it desirable as a matter of
case management, that applications which are interlocutory to pending appeals (eg, for
a stay of execution or for security for the costs of the appeal) should, as with the
proposed applications for leave to appeal, be dealt with on paper by two Justices of
Appeal, who should have power to make any orders necessary without a hearing,
giving brief reasons for their decision; or, alternatively, to direct that there be a
hearing before themselves or before a panel of three judges.
Notes
The Law Society's position is not clear. At p 69 of its Report, it supports Proposal 48. However, at
p 18 of Appendix 2, it rejects the proposal and suggests that it is "premised on a misunderstanding of
solicitor/client relationship". It may be that it was in favour of the questionnaire but against advance,
embargoed judgments.
Including the BCC and a firm of solicitors.
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