James Bickford Smith discusses the significance of the changes to Court of Appeal rules and practice since 3 October 2016.
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There has now been sufficient time for practitioners to have a sense of the effects in practice of the wholesale changes made to appellate rules on 3 October 2016. The full detail of these rule changes, which included the replacements of CPR 52, has been set out helpfully elsewhere. The most important changes were that:
All of these developments point in one direction: the cutting down of parties’ rights to the Court of Appeal’s time. The decision of the court to shut its doors to the entirety of County Court business (save on a second appeal basis) marks a particularly remarkable change, and it is rather surprising that it has passed by without a great deal of comment.
These new changes provoke two lines of thought. One involves more abstract or principled thought about what these changes say about the direction of travel of the justice system in England and Wales, coming as they do after the Jackson reforms and numerous other rule changes. The second involves practical thought about how litigators might or should adapt their litigation tactics to the new state of affairs. Consistent with the thrust of this column, I begin with the practical line of analysis.
THE IMPACT ON LITIGATION CHOICES
The most significant impact of these changes on litigation tactics must lie in choices as to the court in which to issue proceedings. Notwithstanding the fact that there are many very good County Court judges, over time there is likely to be a significant reduction in the number of cases of legal complexity issued in County Courts. Some litigators were already congenitally predisposed against issuing such proceedings in County Courts, but any such predisposition now has important logical support. The reason for this lies in the fact that any point of law arising in the prospective case will fall to be determined on a restricted canvas: whereas the Court of Appeal can choose not to follow one of its previous decisions, a High Court judge cannot make that decision. Further, High Court judges sitting on appeal are likely, as a matter of practice, to feel much more constrained by previous authority than the Court of Appeal would do. It is very hard to predict at the outset of a case whether these issues will in fact arise, but few will want to take a chance on this.
The second significant impact of these changes will lie in the formulation of grounds of appeal. There was a tendency to seek to raise all colourable arguments in grounds of appeal. Thereafter, if the appeal was rejected on paper, there was always the chance to refine grounds at the stage of the oral permission hearing. That approach was never one with which the Court of Appeal was enamoured, and it is now one that carries significantly higher risk. The effect of this is that more robust advice may need to be given about diluting the analytical strength of grounds of appeal by taking marginal points. That, in turn, gives rise to obvious dilemmas for advisers. Telling a client wedded to a particular point that this should be dropped because it may reduce the prospects of securing permission to appeal at all is never an easy exercise. It will be a harder one to perform in circumstances where no judicial view has been received beforehand on the papers.
The third significant impact of these changes will lie in the advice that can be given on second appeals. While this was always a difficult area, there were a surprising number of ways in which it could be said that a case raised an important point of either law or practice. The real challenge lay not so much in securing permission for such an appeal, but in dealing with the approach the Court of Appeal took to hearing them. Now, by contrast, the test for even gaining permission for a second appeal can only be described as extremely exacting.
PRESSURES ON THE COURT
The guidance that short form judgments should be given in appropriate cases is, in and of itself, not of particular significance. However, this guidance does serve as a matter of fact to highlight the concerns that the Court of Appeal is now creaking at the seams. Those concerns were previously ventilated when a significant number of appeal hearings were removed from the list at short notice, due to lack of judicial availability. The current changes may well be an attempt to reduce these strains. However, the problem is that in the process, access to the court has been significantly circumscribed.
The suggestion that the pressure on the court has had an impact on judicial morale is far from new. What has changed, though, is that there is now more than anecdotal support for this proposition. In the high-profile litigation of McCloud and others v Lord Chancellor and Secretary of State for Justice and another ET/2201483/2015, the Ministry of Justice (MoJ) put in a good deal of evidence in an effort to defeat an age discrimination challenge based on differential pension rights. The ensuing judgment contains significant support for what had previously been anecdotal. Thus, it is plain that the recruitment of High Court judges in certain fields (notably commercial and civil law) has become extremely challenging. It is likewise the case that a significant number of current High Court judges (the Court of Appeal judges of tomorrow) have lost out in six-figure sums due to pension changes. Indeed, some of those judges are litigating against the government (hardly a normal state of affairs).
It is not only, or even primarily, the financial points that follow from the evidence filed in McCloud that are of note. What is much more alarming is the picture painted of significant discontent among the higher judiciary. Litigators in this jurisdiction have for a very long time been able to take for granted a generally excellent level of judge in the High Court and Court of Appeal. The ensuing assumptions may require revisiting when one is dealing with a situation in which leading Court of Appeal judges in the commercial field are retiring before they are obliged to do so, and are instead pursuing careers in arbitration. Further, this is also a situation in which some High Court judges are sufficiently
discontent to be litigating against the MoJ in an employment tribunal, and the recruitment of High Court judges who meet the level of excellence required is proving to be a significant challenge. All of this suggests that talk of the courts of England and Wales remaining the gold standard for international litigation may become increasingly unrealistic.
Putting together all of the things discussed in this column, one sees that there are very significant developments afoot. The comments of Rix LJ in Lowe and another v W Machell Joinery Ltd  EWCA Civ 794, which concerned a dispute involving the installation of a bespoke staircase for a budget of £16,000 and the ensuing sales of goods law conundra, have been discussed previously. That case now seems from a different age: parties of that level of means and with that level of dispute would now never receive the benefit of such analysis. That is both because that case was determined in a County Court and because the lords justices best equipped to address those conundra appear to be quietly voting with their feet.