Penny Darbyshire 

Sitting in Judgment by Penny Darbyshire: court of appeal – extract

Darbyshire observes an appeal committee where Lord Hoffman arrived wearing his Lycra cycling shorts and cerise top
  
  

Lord Hoffmann
Lord Hoffmann, who joined the appeal committee hearing still wearing his Lycra cycling shorts and cerise top Photograph: PA Archive/Press Association Ima Photograph: PA Archive/Press Association Ima

At 10.00 am one Monday, a law lord took me to an appeal committee. Lord Hoffmann joined us, still wearing his Lycra cycling shorts and cerise top. By 10.15am they had decided all five petitions. They thought I would be surprised but I had learned how the court of appeal could pre-deliberate 10 cases in 15 minutes. They had pre-read the applications, the assistant's memo, and the judgments in the court below. On each decision, they completed a tick-box form.

Their options were/are to grant or refuse leave, or ask for objections from the other side, or ask for an oral hearing. (Brendan told me this was granted only about six times per year and speeches were limited to 15 minutes.) The junior judge gave his opinion first, each time.

10.04 Case 1: unanimous in granting leave to appeal so no discussion.

Case 2, on contract: one felt leave should not be given. Another wanted more guidance. Another commented that one CA judge had given a practical judgment while another's was technical. Leave refused.

10.07 Case 3, on mobile phones: refused leave. "John Dyson dealt with it perfectly satisfactorily in the court of appeal", said one. The senior judge filled in the form, reciting as he wrote, "Not a European point … No reasonable doubt".

10.09 Case 4: one said there were two points of law of public importance but it was a puzzle as to whether the court of appeal should have decided the case the other way. Another was confused about what the points were. One suggested that they could ask for objections from the respondent. "It's up to you." "Well I'm not going to hold out." The other filled in the form: "OK. I'll tick this box. No question of European law".

Case 5: the first judge said "I would refuse leave. The law's draconian and it's meant to be". The others agreed without discussion.

In 2004, Gordon suggested that specialist panels should determine applications. This research found that this is now the case, to some extent. He said they should decide whether a specialist neutral "friend of the court" should be briefed. Of course they now do this and the UKSC justices added that they welcome even multiple interveners (as did the law lords) and limit them to 15 minutes or a written intervention.

"It would be insane to shut them out - very helpful", said one justice. Gordon argued that cases should be managed by a single judge from an early stage, as is done in the Strasbourg court. Responding in 2008, a senior law lord disagreed, "The sort of case management required in lower courts should simply not be needed". While this is clearly so, I suggest that the timing and content of oral hearings does need to be prescribed.

 

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