540.4 |
If the matter comes
before the Court of Appeal for an oral hearing, it may decide that the respondent is not
required to attend and may not even inform him that the hearing is taking place. (Note 478) |
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540.5 |
Such oral hearings are
generally of a limited duration. (Note 479) |
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541. |
There may be a case for
going further. Experience shows that in a relatively small but still a not insignificant
number of cases, the appeal is so plainly and obviously unmeritorious that its pursuit in
the Court of Appeal is tantamount to an abuse of the appeal process. In such cases, a
dismissal of the application for leave without affording the applicant an oral hearing may
be justified. |
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541.1 |
The court is entitled
to protect its own processes from abuse. In such cases, an appropriate procedure to
dispose of it without a hearing spares the other party the expense - commonly
irrecoverable in practice - of attending (often by counsel) at the leave application where
it is almost certain that he would not be called on to answer the applicant. |
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541.2 |
There is some precedent
in rule 7 of the Hong Kong Court of Final Appeal Rules which enables the Registrar of his
own motion or on that of the respondent, to require the applicant to show cause why the
application should not be dismissed. If an attempt is made to show cause (this being done
in writing) the document is considered by the Appeal Committee which either permits the
application to proceed to an oral hearing or dismisses it on the papers. |
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541.3 |
It is true that in
cases involving applications to the Court of Final Appeal the applicant will already have
had two hearings (before the CFI and Court of Appeal), whereas the party seeking leave to
appeal to the Court of Appeal will only have had one bite at the cherry. However, the
existence of such a power may still be justified in those cases where entertaining the
application would be a misuse of the Court of Appeal's process. |
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541.4 |
Readers are consulted
as to the desirability of giving the Court of Appeal power to refuse leave to appeal to
itself without a hearing (on the assumption that a requirement of leave is introduced): Proposal
47. |
|
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542. |
Where leave is given,
it is important that the substantive hearing of an appeal should be efficiently managed so
that the parties come fully prepared and take no longer than necessary in arguing the
appeal. |
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542.1 |
Under the CPR, on
fixing a date for the appeal, the Court of Appeal sends a questionnaire to the appellant
who must return it providing the court with information as to the state of preparation for
the appeal and, if the appellant is legally represented, the time estimate for the hearing
of the appeal provided by the advocate who is to argue the appeal. (Note 480) The respondent (who receives a copy of the questionnaire)
must promptly give notice of any disagreement as to the time estimate. |
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542.2 |
The learned editors of
the White Book stress the crucial importance of accurate time estimates for the efficient
planning and listing of hearings but acknowledge that it is difficult to be accurate in
such estimates. They go on to state :- |
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474 |
52PD §4.6 <back> |
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475 |
52PD §4.11 <back> |
|
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476 |
White Book 52.3.7.
<back> |
|
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477 |
White Book 52.3.8.
<back> |
|
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478 |
Ibid. <back> |
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479 |
White Book 52.3.30.
Prior to implementation of the CPR, the Court of Appeal issued a Consolidated Practice
Direction providing, in §2.5 as follows: "In the absence of specific directions, the
Court of Appeal will expect oral argument in support of applications for permission to
appeal, or renewed applications for permission to apply for judicial review, to be
confined to a maximum of 20 minutes." [1999] 1 WLR 1027 at 1032. <back> |
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480 |
52PD §§6.5 and 6.6.
<back> |
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481 |
White Book 52.3.32.
<back> |
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482 |
52PD §§15.12 to
15.14. All such advance judgments are marked "Unapproved judgment: No permission is
given to copy or use in court" and a litigant in person is given the advance copy at
the same time as legal advisers receive them. <back> |