Siddiqui, R (On the Application Of) v Lord Chancellor & Ors

Rule 52.5 of the Civil Procedure Rules lawfully removed an automatic right to renew a paper refusal of permission to appeal orally. It preserved a judicial discretion, coupled with a duty to direct an oral hearing where a fair determination cannot be made on paper. Article 6 does not require an oral hearing at every contested stage. Compliance depends on the filtering procedure, its safeguards and its significance within the civil proceedings as a whole. The common-law right of access to justice permits proportionate procedural choices balancing the risk of filtering some meritorious appeals against injustice caused by delay in substantive appeals. A system need not approximate perfection, particularly where an appeal follows a full trial and is confined to points of law.

This was an application for permission to appeal against Cutts J’s refusal, on 19 February 2019, of permission to apply for judicial review. Dingemans J had earlier refused permission on the papers on 17 January 2019.

The proposed judicial review challenged Rule 52.5 of the Civil Procedure Rules, as amended by the Civil Procedure (Amendment No. 5) Rules of 2016, SI 2016/768. The amendment removed the former automatic right to renew a paper refusal of permission to appeal at an oral hearing. The central issue was whether the amended rule was incompatible with Article 6 of the European Convention on Human Rights or with the common-law right of access to justice.

1. Disposition. Sir Timothy Lloyd refused the application. The proposed challenge had no real prospect of success.
2. Operation of Rule 52.5. The 2016 amendment removed the former automatic right to an oral renewal hearing after permission to appeal had been refused on paper. Rule 52.5(1) provides for paper determination, subject to Rule 52.5(2). Under the latter provision, the judge may direct an oral hearing and must do so where the application cannot fairly be determined on paper. The rule therefore retained a safeguard against unfair paper decisions.
3. Common-law access to justice. The court accepted that some applications which would have succeeded after an oral renewal might now be refused on paper. That possibility did not make the rule unlawful. The rule-makers were entitled to balance the risk of imperfect filtering against the injustice caused by increasing delays in substantive appeals. That was a legitimate executive decision within the margin of appreciation. The present case was materially different from cases in which procedural arrangements had been found to infringe access to justice, including R (Unison) v Lord Chancellor [2017] UKSC 51, R (Detention Action) v First-Tier Tribunal [2015] 1 WLR 5341 and R (Refugee Legal Centre) v SSHD [2005] 1 WLR 2219.
4. Article 6. The authorities, including Hansen v Norway (application no. 15319/09) and R (Dunsford) v SSHD [2006] 1 AC 245, showed that Article 6 does not require an oral hearing at every contested stage of civil proceedings. The assessment depends on the nature of the filtering procedure and its significance in the civil proceedings as a whole. Here, the claimant had received a first-instance hearing, the proposed appeal was confined to points of law, written grounds and supporting material could be submitted, and an oral hearing remained available where fairness required one. The restriction was legitimate and proportionate. There was no requirement to achieve a perfect filtering system or to fund additional Court of Appeal judges.
5. Comparative reasoning. The Petition of AP v Lord Advocate [2019] CSOH 23, at paragraph 46, was an interesting but not precise analogy because it concerned a different Scottish procedure. It nevertheless illustrated the proportionality of retaining oral hearings where necessary for a fair determination while excluding hearings where they would add nothing.

Order: Application refused.

1. Court of Appeal (Civil Division): On 10 May 2019, Sir Timothy Lloyd refused permission to appeal and refused permission to apply for judicial review, concluding that the challenge had no prospect of success.
2. High Court of Justice: Cutts J refused permission to apply for judicial review on 19 February 2019. Dingemans J had previously refused permission on the papers on 17 January 2019.