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Steffan Taylor Summarises Recent and Upcoming Changes in Privy Council Practice

Key recent and upcoming changes in Privy Council practice - 06/03/24

The beginning of 2024 saw various changes to Privy Council procedure, from the early striking out of meritless appeals (those with permission as of right), to the automatic rejection of lengthy written cases.  Below is a summary of key recent and upcoming changes.

  1. Permission as of right no longer guarantees you a hearing in person

January’s updates to the Practice Directions (at 4.7.1) saw a move towards the proactive vetting of cases where permission to appeal lies as of right. Notice of Appeals are now being screened by a Justice from the outset. If an appeal appears to be devoid of any merit or seeks to overturn concurrent findings of fact by the lower courts (falling foul of the rule in Devi v Roy [1946] AC 508), a “minded to” letter will be issued to the Appellant. If the Justice is not persuaded by the Appellant’s response, the matter is passed to a panel of three Justices (akin to a permission to appeal panel) to decide on whether to strike out the appeal without a hearing. This is a new useful tool for the Respondent to request in its Notice of Acknowledgment in seeking to bring an appeal to early end.

  1. New case management portal to be introduced before March 2025

The court is developing a new online portal that will manage all stages of the appeal process. This will include

  • Service on other parties will occur automatically once a party files a document online. The other parties will receive an email notifying them of the filing.
  • Generally, there will no longer be PDF forms and instead the information will be entered in the portal.
  • Permission to Appeal applications and Notices to Appeal to be issued first before service on the other parties (as opposed to currently serving first, then filing).
  1. Court fees consultation expected

Following on from the recent Supreme Court fees consultation, the Privy Council will be looking to review fees in future; this will involve a consultation before any changes to the fees structure.

  1. Automatic rejection of written cases over 50 pages

Written cases over 50 pages will now automatically be rejected (Practice Direction 6.3.1). For written cases longer than this, permission is required and an application for this should be made at least 14 days before the deadline for filing the case.

  1. Junior counsel speaking in hearings

The Privy Council actively encourages junior counsel to participate in the oral presentation of arguments in addition to lead counsel.

  1. Small, but important, points for practitioners to note:
  • Out of time appeals will now have their extension of time applications considered by the Board at the start of the appeal hearing (as opposed to being referred to the Registrar). For out of time applications for permission to appeal, the extension application will be considered at the same time as the application for permission to appeal (Practice Directions 3.1.6 and 4.4).
  • References to authorities in written cases.  It has been expressed that the Board prefers two or three-line summaries of authorities in the written cases as opposed to large amounts of text being quoted.
  • Notice of Objections should now not normally exceed five pages. Respondents are encouraged to propose conditions to be attached to the grant of permission and to propose whether permission should be limited to any issues (Practice Direction 3.1.10).
  • The requirement to file a permission to appeal bundle will end soon. 
  • If an appeal appears to not have any public importance, the appeal panel at the hearing will be reduced from five members to three. 
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