The first part of this chapter looks at the civil court structure and at which type of cases are heard in which trial courts, the rules relating to transfer of cases from one level of court to another, the system of appeals and the criticisms that have been made of the various aspects of these systems.
What is the difference between a criminal and civil case? There are several key distinctions.
Criminal cases are brought by the state against individual or corporate defendants, whereas civil cases are brought by one citizen or body against another such party. The state here involves the police (or possibly Customs and Excise officers or health and safety inspectors), who investigate the crime and collect the evidence, and the Crown Prosecution Service, which prepares the Crown’s case. In civil cases, the state is not involved (although it may be a party to the case, such as in a judicial review claim), except in so far as it provides the courts and personnel so that the litigation can be judged. If a party refuses, for example, to be bound by the order a court makes in a civil case, then that party may be found in contempt of court and punished, that is, imprisoned or fined.
The outcomes of civil and criminal cases are different. If a criminal case is successful from the point of view of the person bringing it (the prosecutor) because the magistrate or jury finds the defendant (sometimes called the accused) guilty as charged, then the result will be a sentence. There is a wide range of sentences available, from absolute or conditional discharges (where the convicted defendant is free to go without any conditions or with some requirement, for example, that the defendant undertakes never to visit a particular place) to life imprisonment. Criminal sentences, or ‘sanctions’, are imposed to mark the state’s disapproval of the defendant’s crime. There is often a considerable cost in imposing a punishment. The prison population was 85, 519 n February 2017, including those detained in Immigration Removal Centres. At an average cost of more than £100 per prisoner per day, the average cost to the state is approximately £40,000 per prisoner per year. By contrast, fines (the most common sentence or ‘disposal’) can often bring revenue to the state. In any event, the victim of a crime never gains from the sanction imposed on the criminal. A criminal court can order a convicted person to pay the victim compensation, but this will be in addition to and separate from the sentence for the crime.
If a civil case is successful from the point of view of the person bringing the claim (the claimant), the outcome will be one of a number of civil remedies which are designed to benefit the claimant and in which the state, or wider community, has no direct interest. The exception to this is some judicial review claims that raise public interest points that will affect more people than just the individual claimant. Civil remedies include damages, court orders such as injunctions, orders of prohibition and specific performance. So, in civil proceedings, the claimant will sue the defendant and a successful claim will result in judgment for the claimant. In matrimonial cases, the party who brings an action is called the petitioner and the other party is known as the respondent.
Civil and criminal cases are processed differently by the English legal system. They use different procedures and vocabulary, and they are dealt with, on the whole, by different courts. It is very important not to confuse the vocabularies of the different systems and speak, for example, about a claimant ‘prosecuting’ a company for breach of contract. The law of contract is civil law, so the defendant would be ‘sued’ or ‘litigated against’ or have ‘a claim taken against’ him, her or it.
The following question then arises: ‘What is the difference between a crime and a civil wrong; how am I to tell into which category a particular wrong falls?’ The answer will be found simply by building up a general legal knowledge. There is nothing inherent in any particular conduct that makes it criminal. One cannot say, for example, that serious wrongs are crimes and that lesser transgressions will be civil wrongs: some crimes are comparatively trivial, like some parking offences, while some civil wrongs can have enormously harmful consequences, as where a company in breach of a contract causes financial harm to hundreds or thousands of people.
Sometimes a single event can be both a crime and a civil wrong. If you drive at 50 mph in a 30 mph zone and crash into another vehicle, killing a passenger, you may be prosecuted by the state for causing death by dangerous driving and, if convicted, imprisoned or fined. Additionally, you may be sued for negligence (a tortious civil wrong) by a dependant of the dead passenger and the driver.
The Courts Act 2003 provided for a new unified courts administration to be created, by combining the functions of the court service and the magistrates’ courts committees. The new organisation, Her Majesty’s Courts Service (HMCS), was established in April 2005. The aim of the agency was to deliver improved services to the community, taxpayer, victims, witnesses and all other users of the courts and to develop best practice with the most effective use of resources.
The proposal to set up a new system of courts administration in England and Wales derived from Sir Robin Auld’s review of the criminal courts published in October 2001 (A Review of the Criminal Courts of England and Wales, The Right Honourable Lord Justice Auld, 2001). He recommended that a single centrally funded executive agency, as part of the Ministry of Justice, should be responsible for the administration of all courts, civil, criminal and family, replacing the court service and magistrates’ courts committees.
The government accepted Sir Robin’s proposals for a unified system of courts administration and the Courts Act 2003 was passed to implement the changes. Her Majesty’s Courts Service was launched in 2005.
On 1 April 2011 Her Majesty’s Courts Service and the Tribunals Service were amalgamated into one integrated agency, Her Majesty’s Courts and Tribunals Service (HMCTS), providing support for the administration of justice in courts (up to and including the Court of Appeal) and most tribunals. HMCTS remains a separate agency of the Justice Ministry.
The courts are not in a good economic state. In 2008 the then Lord Chief Justice announced that the maintenance backlog in the courts had risen from £38 million in 2000 to £200 million, stating that it would remain at this level for three years. More recently the Lord Chief Justice has observed that ‘Economic realities have led to budget cuts which have had direct effects on the administration of justice’ (Lord Chief Justice’s Report 2013).
The current economic situation poses significant challenges to the justice system; the coalition government took steps to cut £350 million from the legal aid budget alone and, following a consultation in 2010, 129 courts were closed. Such cuts cannot but have implications for access to justice. Lord Neuberger, President of the Supreme Court, said in June 2013: ‘There are three principal problems: (i) legal services are expensive; (ii) court procedures are not always proportionate and (iii) money for legal aid is scarce.’
Grave concerns about the civil court system was raised by District Judge David Oldham, president of the Association of Her Majesty’s District Judges (Woolf reforms and cost-cutting have led to acute shortages and a ‘deficient’ system, F Gibb, The Times, 16 April 2009). He argues that the civil courts were woefully under-resourced – a problem ever more acute in times of hardship. He has stated:
My mission is to persuade the Government to return to funding our civil courts to a realistic level and as the recession brings more and more individuals to the county courts, to ensure that all who need it have access to free and efficient expert advice and assistance from a duty solicitor or advice agency independent of the Courts Service.
Judge Oldham noted that the civil court system receives a smaller slice of public funds than criminal or family courts, and fees charged to court users had risen to ‘draconian levels’ under the policy of making civil courts pay for themselves.
The Commission of Inquiry into Legal Aid estimated that the legal aid cuts to the civil system are a false economy; according to figures supplied to the Inquiry by Citizens Advice, for every £1.00 of legal aid spent on benefits advice, the state saves up to £8.80, and for every £1.00 of legal aid spent on employment advice, the state saves up to £7.13 (see www.guardian.co.uk/law/2011/jun/14/legal-aid-cuts-false-economy).
Professor Dame Hazel Genn argued in her 2009 Hamlyn Lectures that the main thrust of civil justice reform in the last decade was not primarily about greater access, nor about greater justice, ‘It is simply about diversion of disputants away from the courts’ (F Gibb, The Times, 23 June 2009). She argued that:
In England, we are witnessing the decline of civil justice, the degradation of court facilities and the diversion of civil cases to private dispute resolution – accompanied by an anti-court, anti-adjudication rhetoric that interprets these developments as socially positive.
She argued that a principal threat to civil justice was the ‘unstoppable burgeoning of criminal justice’ including the demands of human rights laws and costs of a growing prison population. The battle for resources was heightened at a time of economically imposed financial restraint. With a unified budget for all parts of the justice system now established under the Ministry of Justice, the importance of civil justice is, Genn has argued, obscured and under-rated. Arguably, evidence for this position can be seen in the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which made sweeping cuts to civil legal aid. Unlike any other common law system the civil courts in England are self-financing, paid for by litigants. However, Genn noted, any surplus generated from litigants’ fees is not invested in the civil courts: instead it is ‘redirected into the gaping maw of criminal justice’. Lady Hale, Justice of the Supreme Court, has contributed to this debate. In a speech in 2011 she observed that the coalition government’s plans for cutting legal aid would ‘of course have a disproportionate effect on the poorest and most vulnerable in society. Indeed the government’s own equality impact statement accepts that they will have a disproportionate impact on women, ethnic minorities and people with disabilities’ (‘Equal Access to Justice in the Big Society’, speech by Lady Hale to The Law Society, 27 June 2011). The Judicial Executive Board expressed its concerns about the operation of the courts post-LASPO in written evidence to a parliamentary inquiry, available at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries.
Magistrates’ courts have a civil jurisdiction, but the main part of this, historically, was in relation to family law. This has been significantly changed by the Crime and Courts Act 2013 and the new system, which still involves magistrates, is summarised in Chapter 9. (A family proceedings court must normally be composed of not more than three justices, including, as far as is practicable, both a man and a woman. Justices who sit on such benches must be members of the ‘family panel’, which comprises people specially appointed to deal with family matters; see Chapter 8.) They have powers of recovery in relation to council tax and charges for water, gas and electricity. They also act as an appellate court from decisions of local authorities in licensing matters.
The County Courts were introduced in 1846 to provide local, accessible fora for the adjudication of relatively small-scale litigation. There are 173 County Courts, now united under the single County Court. This was created by the Crime and Courts Act 2013, s 17, and removes jurisdictional and bureaucratic barriers to the way the County Court works. The court is served by circuit judges and district judges, the latter appointed by the Lord Chancellor from persons who have a seven-year qualification (s 71 of the Courts and Legal Services Act (CLSA) 1990). High Court judges may occasionally be deployed to sit in the County Court.
The Civil Procedure Rules (CPR), which we examine in Chapter 7, operate the same process irrespective of whether the case forum is the High Court or the County Court. Broadly speaking, the County Court will hear small claims and fast-track cases, while the more challenging multi-track cases will be heard in the High Court.
Certain types of actions set down for trial in the High Court are considered too important for transfer to a County Court. These are cases involving:
- professional negligence;
- fatal accidents;
- allegations of fraud or undue influence;
- defamation;
- malicious prosecution or false imprisonment;
- claims against the police.
The civil courts are under great pressure from the cutbacks being made as part of governmental budget strategy. Governmental plans announced in 2010 have seen the Ministry of Justice’s budget cut from £9 billion to £7 billion, with £450 million coming out of administrative areas alone. The staffing of the law courts is already, by common judicial consent, quite inadequate but 14,250 of these demanding jobs have been cut, along with approximately 15,000 at the Ministry of Justice itself, leaving the residual workforce to toil in a hopeless Sisyphean challenge.
In 2007, Judge Paul Collins, London’s most senior County Court judge, said that low pay and high turnover among staff meant that serious errors were commonplace and routinely led to incorrect judgments in court. He said that, with further cuts looming, ‘we run the risk of bringing about a real collapse in the service we’re able to give to the people using the courts’.
The main advantage to litigants using the small claims process is the fact that, if sued, they can defend themselves without the fear of incurring huge legal costs, since the costs that the winning party can claim are strictly limited. The average waiting period for trial was 31 weeks (as opposed to 56 weeks for fast- and multi-track cases). Although successful claimants are unable to recover costs of legal representation, the small claims procedure does not exclude litigants from seeking legal advice or engaging such legal representation. If a litigant is unrepresented, the district judge may assist him or her by putting questions to witnesses or to the other party, and by explaining any legal terms or expressions.
A litigant simply needs to complete a claim form, available from any County Court, and send it to the court with the issue fee appropriate to the amount claimed (ranging from £35 to £455, depending on the value of the claim). Claims may also be made online for a lower fee. If the case is defended, it will be dealt with at an informal hearing, sitting around a table in the district judge’s office. This avoids the need for a trial in open court, which many litigants find daunting. There are further fees for hearings.
The working of the small claims system is looked at in greater detail in Chapter 7.
The High Court was created in 1873 as a part of the Supreme Court of Judicature. The Constitutional Reform Act 2005 established a new Supreme Court of the United Kingdom (which has been operational from 2009) to replace the House of Lords as the highest court of appeal. The new official collective name for the High Court, the Court of Appeal and the Crown Court (previously called ‘The Supreme Court of Judicature’) is the Senior Courts of England and Wales. The Supreme Court of Judicature of Northern Ireland was renamed the Court of Judicature of Northern Ireland.
The High Court has three administrative divisions: the Court of Chancery, the Queen’s Bench Division (QBD) and the Family Division (Divorce and Admiralty and Exchequer and Common Pleas were merged with the QBD in 1880 and 1970). High Court judges sit mainly in the Royal Courts of Justice in the Strand, London, although it is possible for the High Court to sit anywhere in England or Wales.
The High Court judiciary comprises the Vice Chancellor; the Lord Chief Justice who presides over the QBD; the President, who presides over the Family Division; the Senior Presiding Judge (s 72 of the CLSA 1990); and 108 High Court judges or ‘puisne judges’ (pronounced ‘pewnee’ and meaning ‘lesser’). The number of High Court judges is fixed by statute.
To be qualified for appointment as a puisne judge, a person must have 10 years’ qualification within the meaning of s 71 of the CLSA 1990 – essentially, someone who has had a general right of audience on all matters in that court for at least 10 years. The Constitutional Reform Act 2005 established the Judicial Appointments Commission. This body, with 14 members drawn from the judiciary, the lay magistracy, the legal professions and the public, was launched in 2006. It is responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice. This ensures that while merit will remain the sole criterion for appointment, the appointments system will be placed on a fully modern, open and transparent basis (see further at 12.4.3).
6.5.1 The Queen’s Bench Division
The Queen’s Bench Division – the main common law court – takes its name from the original judicial part of the general royal court, which used to sit on a bench in the Palace of Westminster. It is the division with the largest workload and has some criminal jurisdiction and appellate jurisdiction. The main civil work of this court is in contract and tort cases, as well as hearing more specialist cases such as applications for judicial review.
The Commercial Court is part of the QBD, being served by up to 15 judges with specialist experience in commercial law and presiding over cases concerning banking and insurance matters. The formal rules of evidence can be abandoned here, with the consent of the parties, to allow testimony and documentation that would normally be inadmissible. This informality can be of considerable benefit to the business keen to settle its dispute as quickly and easily as possible. Proceedings in the Commercial Court are governed by Part 58 of the Civil Procedure Rules. The QBD also includes an Admiralty Court to deal with the, often esoteric, issues of law relating to shipping. Commercial Court judges are sometimes appointed as arbitrators.
The Office of Fair Trading (OFT) was responsible for protecting consumer interests throughout the UK until 2014 when its responsibilities were passed to a number of different organisations. Consumer rights advice is available from Citizens Advice, and complaints about advertising can be made to the Advertising Standards Authority. The Competition and Markets Authority (CMA) deals with complaints regarding alleged anticompetitive practice (eg price fixing and bid rigging), and alleged unfair terms in a contract.
The Employment Appeal Tribunal is presided over by a High Court judge and either two or four laypersons, and hears appeals from employment tribunals. It is not part of the High Court, but is termed a superior court of record.
It is important to remember that most civil claims are settled out of court; only about 1 per cent of cases where claim forms are issued result in civil trials.
6.5.2 The Queen’s Bench Divisional Court
The nomenclature can be puzzling here. This court, as distinct from the QBD, exercises appellate jurisdiction. Here, two or sometimes three judges sit to hear appeals in the following circumstances:
- appeals on a point of law by way of case stated from magistrates’ courts, tribunals and the Crown Court;
- by exercising judicial review of the decisions made by governmental and public authorities, inferior courts and tribunals. However, leave to apply for judicial review is granted or refused by a single judge and some claims for judicial review can be heard by a single judge, sitting as the Administrative Court within the QBD. The majority of judicial review cases were immigration and asylum matters, which were transferred to the Tribunal system in November 2013 following a direction by the Lord Chief Justice on 21 August 2013 pursuant to his powers under Part 1, Schedule 2 of the Constitutional Reform Act 2005;
- applications for the writ of habeas corpus from persons who claim they are being unlawfully detained (there were 34 such cases in 2010 and no up-to-date figures have been published since).
6.5.3 The Chancery Division
The Chancery Division is the modern successor to the old Court of Chancery, the Lord Chancellor’s court from which equity was developed. It has 18 judges. Its jurisdiction includes matters relating to:
- the sale or partition of land and the raising of charges on land;
- the redemption or foreclosure of mortgages;
- the execution or declaration of trusts;
- the administration of the estates of the dead;
- bankruptcy;
- contentious probate business, for example the validity and interpretation of wills;
- company law;
- partnerships;
- revenue law.
Like the QBD, the Chancery Division contains specialist courts; these are the Patents Court and the Companies Court. The Chancery Division hears its cases in London or in one of eight designated provincial High Court centres. The work is very specialised and there is a Chancery Bar for barristers who practise in this area. Chancery judges are normally appointed from this Bar.
6.5.4 The Chancery Divisional Court
Comprising one or two Chancery judges, this appellate court hears appeals from the Commissioners of Inland Revenue on income tax cases, and from the County Court on certain matters like bankruptcy.
6.5.5 The Family Division
For details of the Family Division of the High Court, refer to Chapter 8.
6.5.6 The Court of Protection
The Court of Protection is a specialist court established by the Mental Capacity Act 2005. It is a supreme court of record with the same rights, privileges and authority as the High Court. The Court of Protection makes decisions, and appoints others (called deputies) to make decisions, on behalf of people who lack mental capacity under the Mental Capacity Act 2005. These decisions relate to incapacitous people’s financial affairs, property, health and welfare. The Court sits at the Royal Courts of Justice in London as well
as in a number of regional courts, including Newcastle, Bristol, Manchester and Cardiff. The Court is served by five High Court judges, 33 district judges and 40 circuit judges.
The Court of Protection has powers to:
- decide whether a person has the capacity to make a particular decision for themselves;
- make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions;
- appoint a deputy to make ongoing decisions for people lacking capacity to make those decisions;
- decide whether a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is valid;
- remove deputies or attorneys who fail to carry out their duties; and
- hear cases concerning objections to the registration of an LPA or EPA.
In 2013, there were 25,000 applications made under the Mental Capacity Act 2005, roughly the same as the previous year. The majority of these (60 per cent) relate to applications for appointment of a property and affairs deputy.
Appeals from decisions made by a judge in one of the three High Court Divisions will go to the Court of Appeal (Civil Division). An exception to this rule allows an appeal to miss out or ‘leapfrog’ a visit to the Court of Appeal and go straight to the Supreme Court (ss 12–15 of the Administration of Justice Act 1969). In order for this to happen, the trial judge must grant a ‘certificate of satisfaction’ and the Supreme Court must give leave to appeal. Previously, in order for the judge to grant a certificate, he or she had to be satisfied that the case involved a point of law of general public importance, either concerned mainly with statutory interpretation or one where he or she was bound by a Court of Appeal or a Supreme Court decision. The Criminal Justice and Courts Act 2015 adds a further three conditions which now also entitle a judge to grant a certificate. These are that the proceedings entail a decision relating to a matter of national importance; that the result of the hearing is so significant that, in the opinion of the judge, a hearing by the Supreme Court is justified; and that the judge is satisfied that earlier consideration by the Supreme Court outweighs the benefits of consideration by the Court of Appeal. The 2015 Act also does away with the requirement that both parties must consent to the procedure.
The Court of Appeal was established by the Judicature Act (JdA) 1873. Together with the High Court of Justice, the Court of Appeal formed part of the Supreme Court of Judicature. Why is it called ‘Supreme’ if the House of Lords was a superior court? The answer is that the JdA 1873 abolished the House of Lords in its appellate capacity, hence the Court of Appeal became part of the Supreme Court but, after a change of government, the House of Lords was reinstated as the final court of appeal by the Appellate Jurisdiction Act 1876.
The Court of Appeal is served by senior judges – currently 39 – termed Lord Justices of Appeal. Additionally, the President of the Family Division of the High Court, the Vice Chancellor of the Chancery Division and High Court judges can sit in the Court of Appeal. The court hears appeals from the three divisions of the High Court, the Divisional Courts, the County Court, the Employment Appeal Tribunal, the Immigration and Asylum Upper Tribunal, the Lands Tribunal, the Transport Tribunal and the Court of Protection. The most senior judge is the Master of the Rolls. Usually, three judges will sit to hear an appeal, although for very important cases five may sit. In the interests of business efficiency, some matters can be heard by two judges. These include:
- applications for leave to appeal;
- an appeal where all parties have consented to the matter being heard by just two judges;
- any appeal against an interim order or judgment (that is, one which is provisional).
Where such a court is evenly divided, three or five judges must rehear the case before it can be further appealed to the Supreme Court.
There may be four or five divisions of the court sitting on any given day. The court has a heavy workload. In the Court of Appeal Civil Division, a total of 4,291 applications were filed or set down in 2013, its highest level since 2005, and an increase of 12 per cent on 2012. In 2013 3,865 applications were disposed of, an increase of 4.5 per cent on 2012.
6.8.1 The Access to Justice Act 1999 (Part IV)
In relation to civil appeals, the Access to Justice Act (AJA) 1999 made several changes. It:
- provided for permission to appeal to be obtained at all levels in the system (s 54);
- provided that, in normal circumstances, there will be only one level of appeal to the courts (s 55);
- introduced an order-making power to enable the Lord Chancellor to vary appeal routes in secondary legislation, with a view to ensuring that appeals generally go to the lowest appropriate level of judge (s 56);
- ensured that cases which merit the consideration of the Court of Appeal reach that court (s 57);
- gave the Civil Division of the Court of Appeal flexibility to exercise its jurisdiction in courts of one, two or more judges (s 59).
Together, these measures are intended to ensure that appeals are heard at the right level, and dealt with in a way which is proportionate to their weight and complexity; that the appeals system can adapt quickly to other developments in the civil justice system; and that existing resources are used efficiently, enabling the Court of Appeal (Civil Division) to tackle its workload more expeditiously. The provisions relating to the High Court (ss 61–65) allow judicial review applications.
6.8.2 Right to Appeal
The AJA 1999 provides for rights of appeal to be exercised only with the permission of the court, as prescribed by rules of court. Previously, permission was required for most cases going to the Civil Division of the Court of Appeal, but not elsewhere. Under the Act, with three exceptions, permission to appeal must be obtained in all appeals to the County Court, High Court or Civil Division of the Court of Appeal. The exceptions are appeals against committal to prison, appeals against a refusal to grant habeas corpus, and appeals against the making of secure accommodation orders under s 25 of the Children Act 1989 (a form of custodial ‘sentence’ for recalcitrant children). There is no appeal against a decision of the court to give or refuse permission, but this does not affect any right under rules of court to make a further application for permission to the same or another court.
The Act provides that, where the County Court or High Court has already reached a decision in a case brought on appeal, there is no further possibility of an appeal of that decision to the Court of Appeal, unless (s 55) the Court of Appeal considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the court to hear it. This is known as the second appeals test.
6.8.3 Destination of Appeals
Section 56 of the AJA 1999 enables the Lord Chancellor to vary, by order, the routes of appeal for appeals to and within the County Courts, the High Court and the Civil Division of the Court of Appeal. Before making an order, the Lord Chancellor will be required to consult the Heads of Division, and any order will be subject to the affirmative resolution procedure. The following appeal routes are specified by order:
- In fast-track cases heard by a district judge, appeals will be to a circuit judge.
- In fast-track cases heard by a circuit judge, appeals will be to a High Court judge.
- In multi-track cases, appeals of interim decisions made at first instance by a district judge will be to a circuit judge, by a master or circuit judge to a High Court judge, and by a High Court judge to the Court of Appeal.
- In multi-track cases, appeals of final orders, regardless of the court of first instance, will be to the Court of Appeal.
- The Heads of Division are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice Chancellor.
- A decision is interim where it does not determine the final outcome of the case.
The legislation provides for the Master of the Rolls or a lower court to direct that an appeal that would normally be heard by a lower court be heard instead by the Court of Appeal. This power would be used where the appeal raises an important point of principle or practice, or is a case that, for some other compelling reason, should be considered by the Court of Appeal.
6.8.4 Civil Division of Court of Appeal
The 1999 Act makes flexible provision for the number of judges of which a court must be constituted in order for the Court of Appeal to be able to hear appeals. Section 54 of the Senior Courts Act 1981 provided that the Court of Appeal was constituted to exercise any of its jurisdiction if it consisted of an uneven number of judges not less than three. In limited circumstances, it provided that a court could be properly constituted with two judges. The 1999 Act allows the Master of the Rolls, with the concurrence of the Lord Chancellor, to give directions about the minimum number of judges of which a court must consist for given types of proceedings. Subject to any directions, the Act also allows the Master of the Rolls, or a Lord Justice of Appeal designated by him for the purpose, to determine the number of judges who will sit to hear any particular appeal.
6.8.5 Jurisdiction of Single Judge of High Court
The 1999 Act allows certain applications to be routinely heard by a single judge of the High Court. It does this by removing an obstacle that existed in the earlier legislation by which the route of appeal for these cases was to the House of Lords, but the Administration of Justice Act 1960 provided that the Supreme Court would only hear appeals in these matters from a Divisional Court (that is, more than one judge) of the High Court. The 1999 Act amends the 1960 Act so that the Supreme Court can hear appeals from a single High Court judge.
6.8.6 The Civil Procedure Rules
Under Part 52 of the CPR, the general rule is that permission to appeal in virtually all cases is mandatory. It should be obtained immediately following the judgment from the lower court or appellate court. Permission will only be given where the court considers that the appellant shows a real prospect of success or there is some other compelling reason for the court to hear the appeal.
All appeals will now be limited to a review rather than a complete rehearing and the appeal will only be allowed if the decision of the lower court was wrong or unjust due to a serious procedural or other irregularity.
The rule now is that there should be only one appeal. Lord Justice Brooke emphasised in the leading case of Tanfern v Cameron MacDonald and Another (2000), ‘the decision of the first appeal court is now to be given primacy’. An application for a second or subsequent appeal (from the High Court or County Court) must be made to the Court of Appeal, which will not accede unless the appeal raises an important point of principle or practice, or there is some other compelling reason to hear the appeal.
The general rule is that an appeal lies to the next level of judge in the court hierarchy, that is, district judge to Circuit judge to High Court judge. The main exception relates to an appeal against a final decision in a multi-track claim, which will go straight to the Court of Appeal.
Great emphasis is placed on ensuring that cases are dealt with promptly and efficiently, and on weeding out and deterring unjustified appeals. The result is that the opportunity to appeal a decision at first instance in a lower court is much more restricted. It is vital, therefore, that practitioners be properly prepared at the initial hearing.
In October 2009, the UK Supreme Court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It is an independent institution, presided over by 12 independently appointed judges known as Justices of the Supreme Court. The Court is housed in the refurbished Middlesex Guildhall on London’s Parliament Square – opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury – a fitting location for the apex of the justice system.
The official website of the Supreme Court (www.supremecourt.uk) notes that ‘Courts are the final arbiter between the citizen and the state, and are therefore a fundamental pillar of the constitution’. The new court has been established to achieve a complete separation between the United Kingdom’s senior judges and the Upper House of Parliament, emphasising the independence of the Law Lords and increasing the distance between Parliament and the courts. As with the previous decisions of the House of Lords, when it was the highest court in the land, the impact of Supreme Court decisions will extend far beyond the parties involved in any given case, shaping society and directly affecting our everyday lives. In their previous role as the Appellate Committee of the House of Lords the Justices gave many landmark rulings about such matters as marital rape, the defence of provocation, the detention without trial of alleged terrorists, the legality of the Hunting Act 2004 under European law, and whether or not a schoolgirl could be prevented from wearing traditional cultural dress.
The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law. It has given a number of landmark rulings on subjects including police powers of stop and search, the territorial application of the Human Rights Act 1998, the legal status of prenuptial agreements and age discrimination in the workplace. As an appeal court, the Supreme Court cannot consider a case unless a relevant order has been made in a lower court.
The Supreme Court
- is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland;
- hears appeals on arguable points of law of general public importance;
- concentrates on cases of the greatest public and constitutional importance; and
- maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world.
The Supreme Court hears appeals from the following courts in each jurisdiction:
England and Wales
- The Court of Appeal, Civil Division;
- The Court of Appeal, Criminal Division;
- (in some limited cases) the High Court.
This is extended by provisions in the Criminal Justice and Courts Act 2015, which allows the ‘leapfrogging’ procedure for decisions of the Employment Appeal Tribunal, Upper Tribunal and the Special Immigration Appeal Tribunal so that decisions from these bodies may, exceptionally, be appealed directly to the Supreme Court.
Scotland
Northern Ireland
- The Court of Appeal in Northern Ireland;
- (in some limited cases) the High Court.
As the highest court of appeal in the United Kingdom, the Supreme Court acts as the final arbiter on cases. Occasionally, it will be called upon to interpret European law and the European Convention on Human Rights as they relate to UK domestic laws. Under European law, Member states’ courts should always make their rulings according to principles laid down in relevant decisions by the Court of Justice of the European Union (CJEU). If the Supreme Court is considering a case where interpretation of a CJEU decision is unclear, the Justices must refer the question to the CJEU for clarification. They will then base their own decision on this answer.
In cases relating to the European Convention on Human Rights, it is accepted that no national court should ‘without strong reason dilute or weaken the effect of the Strasbourg case law’ (Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator (2004)). If human rights principles appear to have been breached, it may be possible to make a claim to the European Court of Human Rights after all avenues of appeal in the United Kingdom have been exhausted, or if the Supreme Court has no jurisdiction in the particular case.
Lord Phillips of Worth Matravers, first president of the Supreme Court, said of its purpose:
The object is to give formal effect to an important constitutional principle – the separation of powers, by transferring the function of the [highest] court from technically being a function carried out by Parliament to a function carried out by a court of judges.
(The Times, 1 October 2009)
There have been changes to procedure from those adopted by the House of Lords. Lord Phillips favoured more sittings of bigger panels (seven or nine justices instead of five commonly collected for House of Lords’ cases) and more single or majority judgments rather than each judge giving their own. The current president is Lord Neuberger and the appointment of Lady Hale as deputy president in 2013 represents the highest judicial office achieved by a woman in the UK.
Frances Gibb, legal editor of The Times, has noted that:
Until now, the highest court in the land was a committee of the House of Lords known as the law lords. They were hidden from public view in an obscure corridor in the depths of the Palace of Westminster and the public scarcely knew they existed. So the idea of giving the 12 law lords their own building and distinct identity as Supreme Court justices quite separate from the legislature has constitutional logic.
(The Times, 1 October 2009)
These distinct courts, although outside of the English legal system as such, have an essential impact on English law. The precise nature of these courts and their impact on the English legal system was considered in detail in Chapter 5.
The Judicial Committee of the Privy Council was created by the Judicial Committee Act 1833. Under the Act, a special committee of the Privy Council was set up to hear appeals from the Dominions. The cases are heard by the judges (without wigs or robes) in the Supreme Court in London. The Committee’s decision is not a judgment but an ‘advice’ to the monarch, who is counselled that the appeal be allowed or dismissed.
The Committee is the final court of appeal for 23 Commonwealth territories and four independent Republics within the Commonwealth. The Committee comprises Privy Councillors who are Supreme Court Justices. In most cases, which come from places such as the Cayman Islands and Jamaica, the Committee comprises five Justices, sometimes assisted by a judge from the country concerned. The decisions of the Privy Council are very influential in English courts because they concern points of law that are applicable in this jurisdiction and they are pronounced upon by Supreme Court Justices (like their predecessor Lords of Appeal in Ordinary from the House of Lords) in a way which is thus tantamount to a Supreme Court ruling. These decisions, however, are technically of persuasive precedent only, although are likely to be followed in some circumstances by English courts; see, for example, The Wagon Mound (1963), a tort case in which the Privy Council ruled, on an appeal from Australia, that in negligence claims, a defendant is liable only for the reasonably foreseeable consequences of his tortious conduct. The Judicial Committee hears the following domestic appeals to Her Majesty in Council:
- from Jersey, Guernsey and the Isle of Man;
- from the Disciplinary Committee of the Royal College of Veterinary Surgeons;
- against certain schemes of the Church Commissioners under the Pastoral Measure 1983.
In 2016, 43 cases were dealt with. There were 49 petitions for special leave to appeal in 2016; of these only 7 were granted and 42 refused.
Chapter Summary: The Civil Courts
The Differences between Civil and Criminal Law
There is no such thing as inherently criminal conduct. A crime is whatever the state has forbidden on pain of legal punishment. The conduct that attracts criminal sanctions changes over time and according to different social systems. The terminology and outcomes of the two systems are different. In criminal cases, the prosecutor prosecutes the defendant (or accused); in civil cases, the claimant sues the defendant.
Her Majesty’s Courts and Tribunals Service
Her Majesty’s Courts and Tribunals Service was created in April 2011. It brings together Her Majesty’s Courts Service and the Tribunals Service into one integrated agency providing support for the administration of justice in courts and tribunals.
Her Majesty’s Courts and Tribunals Service is an agency of the Ministry of Justice. It uniquely operates as a partnership between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals.
The agency is responsible for the administration of the criminal, civil and family courts and tribunals in England and Wales and non-devolved tribunals in Scotland and Northern Ireland. Its aim is to provide for ‘a fair, efficient and effective justice system delivered by an independent judiciary’.
Magistrates’ Courts
Magistrates’ courts have a civil jurisdiction. They hear some family proceedings and deal with non-payment of council tax.
County Court
The County Court deals with various types of civil case, both small claims and fast-track cases. Over two million proceedings are started each year. The main advantage to litigants using the small claims process is the fact that, if sued, they can defend without fear of incurring huge legal costs, since the costs that the winning party can claim are strictly limited.
High Court
The High Court has three administrative divisions: the Court of Chancery, the Queen’s Bench Division (QBD) and the Family Division. High Court judges sit mainly in the Courts of Justice in the Strand, London, although it is possible for the High Court to sit anywhere in England or Wales. Each branch also has a Divisional Court which is an appeal court, mainly for the magistrates’ and County Court. The Court of Protection that deals exclusively with matters arising under the Mental Capacity Act 2005 has the same powers as the High Court.
The Court of Appeal (Civil Division)
The court hears appeals from the three divisions of the High Court, the Divisional Courts, the County Court, the Employment Appeal Tribunal, the Asylum and Immigration Upper Tribunal, the Lands Tribunal, the Transport Tribunal and the Court of Protection. The most senior judge is the Master of the Rolls.
Right to Appeal
Rights of appeal can be exercised only with the permission of the court, as prescribed by rules of court. There are three exceptions: appeals against committal to prison, appeals against a refusal to grant habeas corpus and appeals against the making of secure accommodation orders under s 25 of the Children Act 1989.
The Supreme Court
In 2009 the Supreme Court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It is an independent institution, presided over by 12 independently appointed judges, known as Justices of the Supreme Court.
Food for Thought
- In 2009, 36 per cent of the UK population were eligible for legal aid. Since 2004, civil legal aid expenditure has decreased by 15 per cent and following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, far fewer people are now eligible for legal aid in social welfare cases. What are the access to justice issues that arise when legal aid is cut? Are there other ways of improving access to justice in times of economic strife?
- The civil justice system in the UK is adversarial. Should litigants be forced to use mediation before they go to court in order to reduce costs and alleviate the backlog in the court system?
Further Reading
Blackstone’s Civil Practice, 2015, Oxford: OUP
Robins, J, ‘Could do better’ (2015) 165 NLJ 7648, p 8
Gold, S, ‘Civil way’ (2009) 159 NLJ 7378
Millett, T, ‘A marked improvement’ (2008) 158 NLJ 7321
Ministry of Justice, Court Statistics Quarterly, Jan–March 2014
New Law Journal, ‘New charter for civil courts’ [2007] 138
Parpworth, N, ‘The hunt goes on’ (2008) 158 NLJ 8118
Companion Website 
Now visit the companion website to:
- test your understanding of the key terms using our Flashcard Glossary;
- revise and consolidate your knowledge of ‘The civil courts’ using our multiple choice question testbank;
- view all of the links to the Useful Websites above.
www.routledge.com/cw/slapper
