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NOTE: This PD has been replaced by the Practice Direction supplemental to Part 52

PRACTICE DIRECTION
FOR THE COURT OF APPEAL (CIVIL DIVISION)

Contents P1 P2 P3 P4 P5 P6 P7 P8 P9 P10 P11 P12 P13 P14 Annexes

2. PERMISSION TO APPEAL

2.1. When is permission required?

2.1.1. Most appeals require the permission of the court below (the court which made the decision which is challenged) or of the Court of Appeal to bring an appeal.
2.1.2. Since 1 January 1999, permission has been required for all appeals except appeals against:


(a)committal orders;

(b)refusals to grant habeas corpus; and

(c)secure accommodation orders made pursuant to section 25 of the Children Act 1989Acts.

(see RSC Order 59 r.1B(1)(a)-(c))

2.1.3. The experience of the Court of Appeal is that many appeals and applications for permission to appeal are made which are quite hopeless. They demonstrate basic misconceptions as to the purpose of the civil appeal system and the different roles played by appellate Courts and courts below. The court below has a crucial role in determining applications for permission to appeal. This guidance indicates how applicants, and courts, should approach the matter.

2.2. From which court should permission to appeal be sought?

2.2.1. The court which has just reached a decision is often in the best position to judge whether there should be an appeal. It should not leave the decision to the Court of Appeal. Courts below can help to minimise the delay and expense which an appeal involves. Where the parties are present for delivery of the judgment, it should be routine for the judge below to ask whether either party wants permission to appeal and to deal with the matter then and there. However, if the court below is in doubt whether an appeal would have a realistic prospect of success or involves a point of general principle, the safe course is to refuse permission to appeal. It is always open to the Court of Appeal to grant it.
2.2.2. The advantages which flow from permission being considered by the court of first instance are lost if the application cannot be listed before the judge who made the decision which is the subject of the application. Where it is not possible for the application for permission to be listed before the same judge, or where undue delay would be caused by so listing it, the Court of Appeal will be sympathetic to applicants who claim that it was impracticable for them to make their application to the court below and will not require such an application to be made.

2.3. Oral or paper hearings

2.3.1. Many applications to the Court of Appeal for permission to appeal are considered in the first instance by a single Lord Justice on paper, but in some cases the Court directs that the application should proceed straight to an oral hearing. Usually, only applications for permission where the applicant is legally represented are dealt with on paper. However, some applications from litigants in person may be deemed suitable to be dealt with in the same way. Following a notification that the Lord Justice is minded to refuse permission to appeal and in the absence of a request for an oral hearing being received within 14 days, the application will be determined in open court without further reference to the applicant.
2.3.2. Whether the application is dealt with on paper or at a hearing the applicant should not burden the Court with documents which are not relevant to the application. The letter from the Civil Appeals Office acknowledging entry of the application in the records of the Court sets out the Court's requirements concerning application bundles.

2.4. Applications for permission listed for oral hearing

2.4.1. If the single Lord Justice, on consideration of the papers, grants permission or directs an oral hearing of the application, directions may be given on paper as to (1) the maximum time to be allowed to each party for oral argument on the appeal or the oral hearing of the application for permission, as the case may be; (2) the filing and service of skeleton arguments; and (3) other directions for the progress of the case.
2.4.2. Where an application for permission to appeal is listed for oral hearing, whether initially or after a decision on paper, the following directions will apply.
2.4.3. In all cases where the application is listed for an oral hearing at which the Court has directed that other parties are to have the opportunity to attend, the applicant's solicitors (or the applicant, if acting in person) must, on receipt of notification from the Civil Appeals Office that such a hearing has been directed, immediately supply the respondent's solicitors (or the respondent, if in person) with a copy of the application bundle (including a copy of the transcript or note of judgment) in exactly the same form as the bundles filed for the use of the Court of Appeal. For the purposes only of providing the copy of the application bundle to the respondent's side photocopies of transcripts of judgment and, where relevant, evidence, may be used. The costs of provision of that bundle shall be borne by the applicant initially, but will form part of the costs of the application.

2.5. Time allowed for oral hearings

2.5.1. In the absence of specific directions, the Court of Appeal will expect oral argument in support of applications for permission to appeal, or renewed applications for permission to apply for judicial review, to be confined to a maximum of 20 minutes.

2.6. Skeleton arguments for applications for permission to appeal

2.6.1. In order to assist the Court of Appeal to deal efficiently with applications for permission to appeal, all represented applicants for permission must provide a skeleton argument and applicants in person are strongly encouraged to do so. Three copies of the skeleton argument must accompany the bundle of documents which the applicant's solicitors lodge with the Civil Appeals Office for the application. (These copies should be filed with, but not bound in, the bundle.) Where dates are of significance in relation to the proposed appeal, a chronology should be filed and served with the applicant's skeleton argument.
2.6.2. If the application is listed for oral hearing at which the Court has directed that other parties are to have the opportunity to attend, the respondent's skeleton argument must be filed and served within 14 days of receipt of the applicant's bundle. Where an application for permission to appeal is listed for hearing, with the appeal to follow if permission is granted, the timetable for skeleton arguments will be the same as in the case of an appeal, and the amount of time allowed for oral argument will depend on the time estimate for the appeal.

2.7. Renewed applications for permission to apply for judicial review

2.7.1. The applicant's advocate (and where any respondent will be represented at the Court of Appeal hearing, that party's advocate) must file four copies of their skeleton arguments with the Civil Appeals Office with the application bundles.
2.7.2. This applies only to renewed applications for permission to apply for judicial review. Where permission to apply has been granted and the substantive application for judicial review has been dealt with in the High Court, any application to the Court of Appeal for permission to appeal against that decision will be governed by the general provisions for such applications.

2.8. The general test for permission

2.8.1. There is no limit on the number of appeals the Court of Appeal is prepared to hear. It is therefore not relevant to consider whether the Court of Appeal might prefer to select for itself which appeals it would like to hear. The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant permission, is that permission will be given unless an appeal would have no real prospect of success. A fanciful prospect is insufficient. Permission may also be given in exceptional circumstances even though the case has no real prospect of success if there is an issue which, in the public interest, should be examined by the Court of Appeal. Examples are where a case raises questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration. The approach will differ depending on the category and subject matter of the decision and the reason for seeking permission to appeal, as will be indicated below. However, if the issue to be raised on the appeal is of general importance that will be a factor in favour of granting permission. On the other hand, if the issues are not generally important and the costs of an appeal will far exceed what is at stake, that will be a factor which weighs against the grant of permission to appeal.

2.9. A point of law

2.9.1. Permission should not be granted unless the judge considers that there is a realistic prospect of the Court of Appeal coming to a different conclusion on a point of law which will materially affect the outcome of the case. An appeal on the grounds that there is no evidence to support a finding is an appeal on a point of law, but it is insufficient to show that there was little evidence.

2.10. A question of fact

2.10.1. The Court of Appeal will rarely interfere with a decision based on the judge's evaluation of oral evidence as to the primary facts or if an appeal would involve examining the fine detail of the judge's factual investigation. Permission is more likely to be appropriate where what is being challenged is the inference which the judge has drawn from the primary facts, or where the judge has not received any particular benefit from having actually seen the witnesses, and it is properly arguable that materially different inferences should be drawn from the evidence. In such a case the judge, if he grants permission, should expressly indicate that this is the basis on which permission is given.
2.10.2. If a case is one which has involved considering many witnesses and/or documents, it will be especially important that the trial court considers whether to grant permission and, where it refuses permission, gives its reasons for doing so. This is because in a case of this sort the Court of Appeal is less able to assess whether an appeal is appropriate.

2.11. Questions of discretion

2.11.1. The Court of Appeal does not interfere with the exercise of discretion by a judge unless satisfied the judge was wrong. The burden on an appellant is a heavy one (many family cases do not qualify for permission for this reason). It will be rare, therefore, for a trial judge to give permission on a pure question of discretion. He may do so if the case raises a point of general principle on which the opinion of a higher court is required.

2.12. Appeals from interlocutory orders

2.12.1. An interlocutory order is an order which does not entirely determine the proceedings. Where the application is for permission to appeal from an interlocutory order, additional considerations arise:


(a)the point may not be of sufficient significance to justify the costs of an appeal;

(b)the procedural consequences of an appeal (e.g. loss of the trial date) may outweigh the significance of the interlocutory issue;

(c)it may be more convenient to determine the point at or after the trial.

2.12.2. In all cases under (a) permission to appeal should be refused. In the case of (b) and (c) it will be necessary to consider whether to refuse permission or adjourn the application until after trial so as to preserve the appellant's right to appeal.

2.13. Limited and conditional permission

2.13.1. Permission may be limited to one or more points. It may also be conditional, e.g. on some special order for costs. If a court grants permission on one or more issues only, it should expressly refuse permission on other issues. The reason for this is that the other issues can then only be raised with the permission of the Court of Appeal.
2.13.2. If an appellant wishes to raise additional issues for which there is no permission to appeal, written notice of this must be given to all other parties and the Court of Appeal within 28 days of permission being granted, or 28 days prior to the hearing, if this is earlier. Unless there are special reasons for making an application earlier, to avoid additional expense the application to raise an additional issue should be dealt with at the outset of the appeal and all parties should normally be prepared to argue the additional issues at that hearing. If, however, a respondent considers the additional issues will have a significant effect on the preparation necessary for, or the length of, the hearing, he may inform the appellant within 14 days of receiving the notice that he requires an application to be made prior to the hearing. An application should then be made in writing within 14 days accompanied, if necessary, by short written submissions, which should be served on the respondent. The respondent may deliver short written submissions within a further 14 days. The court will, where practicable, give its decision as to whether the additional issues can be argued prior to the hearing of the appeal.

2.14. Reasons

2.14.1. When permission is refused by the court below, the Court gives short reasons which are primarily intended to inform the applicant why permission is refused. Where permission is granted, reasons may be given which are intended to identify for the benefit of the parties and the Court hearing the appeal why it was thought right to give permission. There may be only one issue that the judge or judges giving permission considered it was necessary to draw to the attention of the parties and the Court hearing the appeal. It is a misconception to assume that, because only one aspect of the proposed appeal was mentioned in any reasons which were given, permission was granted under a misapprehension that there were not other issues to be determined on any appeal unless the reasons make this clear.
2.14.2. When the Lord Justice is minded to refuse permission to appeal, his or her reasons for doing so will be sent to the applicant's solicitors (or the applicant, if in person). A letter will accompany the Lord Justice's comments informing the applicant of the right to seek an oral hearing. (An example of the letter that will be sent is at Annex B to this Practice Direction.) The Lord Justice will direct whether the oral hearing should be before one or two Lords Justices.

2.15. The Form

2.15.1. At Annex C to this Practice Direction is a generic example of the form which the judge should complete when he grants or refuses permission to appeal, giving his reasons. The reasons for the decision need only be brief, e.g. difficult point of law or pure question of fact. All parties will, on request, be given a copy of the form. It is the applicant's responsibility to annex the form to his notice of application where he has been refused permission, or to his notice of appeal where he has been granted permission.

2.16. Directions

2.16.1. When an application for permission to appeal is referred to the single Lord Justice on the papers alone and the Lord Justice decides to grant permission, the Lord Justice may give directions for the subsequent progress of the appeal.

2.17. Legally-aided applicants

2.17.1. In any case where the applicant is legally aided and the single Lord Justice is minded to refuse permission to appeal on paper, the applicant's solicitor must send to the relevant legal aid office a copy of the single Lord Justice's comments (together with any reasons he/she gave for refusing permission) as soon as it has been received from the Civil Appeals Office. The court will require confirmation that this has been done in any case where an application for permission to appeal is renewed before the full court on legal aid.

2.18. Applications to set aside grant of permission to appeal to the Court of Appeal

2.18.1. There is a heavy onus on a respondent who seeks to set aside permission. Before making such an application, the respondent must bear in mind that the fact that the appeal has no real prospect of success does not necessarily mean that permission should not have been given. The applicant will be required to establish that there was no good reason for giving permission, which may not be the same thing. In addition, it should be borne in mind, prior to making such an application, that this court is likely to be very unsympathetic to it being made if it will in effect involve the parties in exactly the same expense as determining the appeal itself, and will not necessarily save the time of the Court but risk the Court having to have two hearings when only one would be necessary had there been no application to set aside.

2.19. More than one level of appeal

2.19.1. Where there has already been one unsuccessful appeal to a court (not a tribunal) against the decision being challenged, for example from a District Judge to a Circuit Judge or from a Master to a High Court Judge, and the application is for permission for a further appeal to the Court of Appeal, a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises a point of principle or practice or the case is one which for some other compelling reason should be considered by the Court of Appeal.

Contents P1 P2 P3 P4 P5 P6 P7 P8 P9 P10 P11 P12 P13 P14 Annexes