Response to Consultation Paper CP 20/05 – Proposed Changes to Civil Appeal Rules

The London Solicitors Litigation Association (LSLA) is over 50 years old and represents the interests of a wide range of litigators in London handling a broad range of civil and commercial litigation. Through its 950 solicitor members and strong links with a wide number of professional bodies, it represents nearly all civil litigation practices in London. The LSLA operates through a Committee of some 15 members which includes members of the Civil Justice Council, Civil Procedure Rules Committee, Law Society Civil Litigation Committee and local Law Societies. The Association has a long track record of responding to consultation papers and has drawn on a wide range of views in responding to the current consultation paper.

This is the response of the London Solicitors Litigation Association (LSLA). The LSLA is over 50 years old and represents the interests of a wide range of litigators in London handling a broad range of civil and commercial litigation. Through its 950 solicitor members and strong links with a wide number of professional bodies, it represents nearly all civil litigation practices in London. The LSLA operates through a Committee of some 15 members, which includes members of the Civil Justice Council, Civil Procedure Rules Committee, Law Society Civil Litigation Committee and local Law Societies. The Association has a long track record of responding to consultation papers, and has drawn on a range of views in responding to the current consultation paper.

Question 1.

Do you agree that the Court of Appeal should have the option to refuse permission to appeal on the papers and order that there be no right to renew to an oral hearing, in addition to the existing options?

We have considered the results of the shadow exercise carried out by Hazel Genn and note the findings that the possible inconsistencies are both few in number and small as a percentage.

Whilst the views of our members are divided on the issue, we consider on balance that the overall advantage of freeing up court time and sparing costs may outweigh the possibility of minor inconsistencies and possibly occasional injustices in decisions reached.

Whilst on that basis we agree that it is appropriate for the Court of Appeal to have the option to refuse permission to appeal on paper with no right to renew, we would not wish to see this option extended to the lower courts. Our reasons are simply that no research has been carried out and decisions are more likely to be inconsistent from court to court, with further and far more scope for injustice to the individual.

There is no doubt that this proposal represents a restriction of rights of access to the courts, although it is probably a proportionate restriction in the circumstances. We consider that if this proposal is implemented, it is essential that there should be provision for monitoring and review say after 12 months of operation.

Question 1a.

If you answered no to the above question what are the reasons for your objections to the proposal?

Not applicable given agreement to proposal above.

Question 2.

Do you agree that appeals from the small claims track should be subject to a limit on costs? If not why not?

There are difficult issues to be considered on both sides of this argument and our members are again divided. It is possible that injustice may arise from putting a limit in place. It may deter people from bringing appeals as they cannot recover the costs of legal representation and do not feel able to deal with the appeal process themselves. Turning the same argument around, not putting the limit in place may deter people from bringing appeals because of an exposure to costs that they may face if unsuccessful.

On balance however we are in favour of introducing a limit. The appeals process is simple enough for there to be no requirement for legal representation. The fact that full costs cannot be recovered should leave the parties on a level playing field on terms of that representation.

The ability to seek costs where your opponent behaves unreasonably or where the appeal turns out to be without merit should deter frivolous claims being pursued. Whilst a limit on costs enables a party to bring a meritorious appeal without exposure to costs.

Question 2a.

If you answered yes to the above question please specify which of the above options you prefer?

Our overall preference is for a modified version of option 2, i.e. a cap on costs at £1,000. Whilst we favour a cap and the ability for some costs to be recovered as a deterrent, The £1,000 figure may be too high to be proportionate in many cases. We therefore suggest a modification that the cap should be 100% of the value in dispute up to a maximum of £1,000. An inclusive cap of £1,000 on all costs between parties in lower value claims may still deter a party from bringing a meritorious appeal on a small claim, particularly if they are facing a large corporation.

Otherwise there is considerable merit in option 3 i.e. extending the rules in Part 27 to appeals. This might be the simplest and fairest option. The court already retains the power to weed out hopeless appeals by refusing permission and we are therefore confined to considering the position in appeals which have some merit.

Question 3.

If you agree that small claims appeals should have a cost limit but do not agree with either of the above options what do you believe the limit should be? Please give reasons.

Not applicable given response above

Question 4.

Do you agree that small claims which are allocated or re-allocated to another track should have their costs limited to those available under Part 27 unless the court orders or the parties agree otherwise? If you disagree please give reasons.

We are not entirely certain of the context of this question, which seems to be broader than just appeals. Similar concerns arise here as are dealt with in question 2. However the scope for injustice is probably wider as the claim will have been allocated to a different track or re-allocated due to the complicated nature of the questions arising and the requirement for legal representation is stronger.

However, a litigant who felt able to commence an action knowing there was limited costs exposure may not feel able to continue with the claim if on allocation or re-allocation, he is suddenly facing a far greater exposure to costs. The only option remaining would be to discontinue what would otherwise be a meritorious case yet still face the cost incurred to date.

On balance we would agree that costs should be limited to those available under CPR Part 27 on allocation or re-allocation to a different track, subject as suggested to the discretion of the court or agreement of the parties.

Further contact

The LSLA would welcome the opportunity to contribute to any further work in this area. Any queries or comments on this paper should be addressed to:

Graham Huntley, Lovells, telephone: 020 7296 2000, email: graham.huntley@lovells.com;

Joint Response Of The LSLA, Commercial Bar Association, Chancery Bar Association, London Common Law and Commercial Bar Association, and City Of London Law Society

LSLA Response to The Ministry Of Justice Consultation Paper (NO. CP13/10): Proposals For Reform Of Civil Litigation Funding And Costs In England and Wales

Consultation on Referral Fees