Jeyapragash, R (on the application of) v Immigration Appeal Tribunal

LORD JUSTICE BROOKE: This is a matter in which Sedley LJ granted permission to appeal to the Court of Appeal as long ago as 2 June 2004. The matter has been listed in this court for hearing with plenty of time for the parties to prepare the case properly and in accordance with the rules.

The appeal turns on whether the IAT ought to have made explicit findings of fact as to the nature of the torture that the appellant suffered in Sri Lanka before it determined that he was not at risk if he was returned. Very much at the twelfth hour, the parties have agreed that the decision of the IAT should be quashed, the appeal remitted for consideration by a differently constituted tribunal and that there be no order as to costs save for assessment of the appellant's costs under the Legal Service Costs Regulations. We make that order by consent.

We have required, unusually, a hearing in this case because the new Practice Direction of the Court of Appeal has now been in effect since 1 July 2004 (nearly three months). This is the second case in which I have been concerned during the vacation in which the Home Office have given instructions to the Treasury Solicitor at a late stage, leaving it quite impossible for the court either to prepare its pre-reading or to replace cases in the list when a case settles.

The message of the amended Practice Direction is that, instead of regarding one minute before the Court of Appeal sits as the time up to which parties in a leisurely way can prepare the papers for the court, the new time is seven days before a hearing. There is also provision in the new practice direction that a respondent to an appeal must make its position clear as to whether it simply intends to resist the appeal on the grounds given by the tribunal, or whether it wishes to serve a notice of cross-appeal and file a skeleton. That enables everybody to know the stance of the respondent. (See Practice Direction to CPR Part 52 para 15.6).

Under the new procedure, the time the respondent has to lodge a skeleton argument, supposing that it is merely content to defend the hearing of the tribunal below, has been relaxed. Instead of being much earlier in the pre-hearing process, at a time which was much more honoured in the breach than the observance, the Court of Appeal now requires the respondent's skeleton, at latest, to be lodged seven days before the hearing (para 15.11B). It also requires an agreed bundle of authorities to be lodged at the same time, each party putting its mind as to what is required for the effective hearing of the appeal (para 15.11(3)(a)). This enables judges of the Court of Appeal to pre-read effectively in a way which was quite impossible before the new reforms. Documents would come in in dribs and drabs, quite often after the judge had completed his or her pre-reading and sometimes not until the night before the hearing. That regime has now changed.

I am told that the Treasury Solicitor is in consultation with the Home Office as to whether there are resource implications of the regime change. I want to make it crystal clear that this is a new procedure in the Court of Appeal so that judges in the Court of Appeal can use their time effectively. If an appeal is to settle, as in this case, we can, if possible, list other appeals in its place. I have been assured by Mr Patel, who speaks on instructions, that serious discussions are proceeding between the Treasury Solicitor and the Home Office in relation to this issue. I look forward to hearing the positive outcome of those discussions.

I would wish to make it completely clear that the Court of Appeal will continue to take the steps taken in this case, and in the earlier case in our list today, and refuse to grant orders by consent administratively if the requirements of the Practice Direction are broken. The court will require the parties to attend to explain any breach of the Practice Direction and why it happened. I draw the attention of those concerned in these matters to the new power of the presiding Lord Justice to require a lawyer for the parties to come and explain what is or is not going on in the week before the hearing (see for example para 15.11B(2)). There are also the new rules as to the costs consequences of non-compliance (see, for example, paras 5.10(6) and 15.4(1)). That is sufficient to say on this occasion.

This is a judgment which can be removed from the normal rules on restriction of citation. It is necessary for everybody who practises and appears before the Court of Appeal to understand the new regime and to make arrangements to ensure they comply with it.

LORD JUSTICE POTTER: I agree.

LORD JUSTICE CLARKE: I also agree.