Leading commercial silks have accused the Court of Appeal (CoA) of deliberately “over-listing” hearings to ensure appellate judges have enough work, resulting in lengthy delays for hearings and greater costs for clients.
A number of top tier sets have told The Lawyer barristers are regularly having commercial cases “bumped” from the CoA court list just days before the hearing is due to take place.
Complaints have already been lodged with the head of listing for the chancery division, The Lawyer understands.
The news follows criticism from new justice secretary Michael Gove about the “creaking and dysfunctional” justice system, which he said fails society’s poorest people (23 June 2015).
Gove pledged to fix the “inefficient” system in his first speech as Lord Chancellor on Tuesday, and added delays to court hearings were part of the problem.
Chambers insiders told The Lawyer the civil appeals office has been sending letters to advocates a week before a hearing – which are often scheduled six months in advance – warning the case no longer has a “secure fixture date due to no judicial availability”. The officer then suggests both parties agree to have the hearing re-fixed or to wait and see if a judge becomes available.
Then, just days before the hearing date, both parties’ lawyers receive a second letter that reads: “I write to inform you that this appeal has been removed from the court list. In order to maximise the use of judicial time it is necessary to list more cases than the court can hear to make sure the court has sufficient cases.”
Hearings are typically rescheduled for another four to six months in the future.
The letter also reads: “Every effort will be made to make sure the next hearing is not vacated for the same reasons.”
However, one chambers said a member had a major appeal hearing re-fixed by the civil appeals office twice, resulting in more than a year’s delay before the case could be heard.
“We’ve had this happen on at least two substantial civil banking appeals,” said a senior clerk.
The issue is understood to have begun this year, though it is understood no formal management or process changes have been made at the CoA. One London barrister said: “This had never happened to me before but has already happened twice this year.”
One set complained a number of its silk and junior teams had spent up to a week of reading in time on a case before being notified the hearings had been removed from the court list.
Top chambers are taking different approaches to the issue of costs incurred when a hearing is re-fixed at short notice. One silk said: “We spent six days working on this appeal, and it will take us at least four days to get it up again when we eventually get to the new date. We can’t fairly charge the client for this, so it comes out of my pocket.”
Some sets are choosing to charge clients for the extra work, however. One senior clerk said: “We’ve had to take a practical view on the rescheduling so costs have been incurred.”
“This is happening too frequently at substantial costs to litigants,” a barrister added.
One silk said their work schedule had been affected by the necessity of putting on hold other cases to accommodate an unexpected reading-in period six months down the line.
A spokesperson for the Judicial Office said in a statement: “It has been the long standing practice of the Court of Appeal to over-list in order to maximise the use of judicial time when cases settle close to the hearing date. The Court of Appeal works very hard to avoid ‘standing down’ cases at short notice but this is sometimes unavoidable due to urgent applications or appeals having to be listed or other late demands on judges.
“In the last 12 months there has unfortunately been an increase in the number of cases having to be stood down at late notice. This is due to the falling number of late settlements and the significant increase in the work of the court generally (permission applications up 52 per cent since 2009/10), with no increase in judicial resources.
“The court recognises the inconvenience and frustration caused by cases being removed from the list at a late stage. Every possible step is taken to ensure this does not happen. Earlier this year the court began to list more conservatively in order to reduce this risk.”