CJR Final Report, Section 3: Procedural reform and the Basic Law

The same conclusion was reached in Nerva v United Kingdom,

in relation to the

dismissal of an application for leave to appeal by the House of Lords without reasons

after having provisionally indicated that leave would be granted and after calling for

written submissions and holding a five-minute hearing. The E Ct HR held the

applicant's complaint as to the lack of reasons to be manifestly unfounded and stated -

"......the High Court and Court of Appeal judgments were fully reasoned and addressed in

detail the substance of the applicants' submissions in the light of adversarial argument. The

judgment of the Court of Appeal represented an authoritative and binding view of the law as

it stood, subject to any different view which might be taken by the House of Lords

consequent upon a successful appeal. Secondly, as to the limited reasons given by the House

of Lords Appeal Committee, the Court considers that it is implicit in that decision that the

applicants' case did not raise a point of law of general public importance, which is the

gateway requirement for leave being granted. The Court observes that where a supreme court

refuses to accept a case on the basis that the legal grounds for such a case are not made out,

very limited reasoning may satisfy the requirements of Article 6 of the Convention. In its

opinion that principle extends to the House of Lords' decisions on applications for leave to

appeal."

There is no doubt that the procedure of the Court of Final Appeal in relation to

applications for leave to appeal, viewed in the context of the entirety of the

proceedings leading to such applications, satisfies the applicable criteria.

Such

applications are almost always preceded by two oral and public hearings, where the

parties are permitted to be present, resulting in reasoned judgments which are

available for public scrutiny. As with the House of Lords and particularly the Privy

Council, the grounds for leave to appeal are limited, as defined in the Hong Kong

arguable grounds for granting leave to appeal, an oral and public hearing before the

Appeal Committee of the Court, consisting of three members, is held. Where the

application is dismissed, sometimes detailed reasons are given, but commonly, the

reasons will amount to no more than a statement that the criteria for leave to appeal

have not been met.

Notes

Application 42295/98, 11.7.00.

As held by the Appeal Committee in Chow Shun Yung v Wei Pih Stella & Anr (Unreported) FAMV

No 2 of 2003, 14 May 2003.