SD lowell/BW - old Lloyds Credit Card

[unclebulgaria67]

This is more of a questioning post.

 

Is it possible that a Judge could see not having the CCA at the time of an SD set hearing is not important, because it is not a hearing about enforcement ? i.e enforcement is only considered at the time any bankruptcy petition is considered. I realise that a previous CCA request was not complied with and there may be other issues as well. But again the question is whether it may be considered reasonable for a Judge to not allow the set aside on the basis that any issues could be resolved by the time of a bankruptcy petition.

[Banking on change]

Hi UB

 

They've had over a year to comply lol

 

I'm confused, I thought the legislation stated that they cannot pursue any debt where the CCA has not been complied with.

To me this reads as it should not even enter a court until the docs have been supplied.

 

"If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement"

 

You cannot enter the correct amount on an SD without the required info and having found some old statements showing substantial ppi the amount on the SD is obviously wrong.

 

And in Brandon v Amex I think the appeal was upheld due to a faulty DN.

Neither Lloyds nor Lowells have even produced a DN

 

 

Cheers

[unclebulgaria67]

Does anyone have any answer to my questions put in post #51 ?

[Banking on change]

Hi UB

I take your point but personally I disagree (but with the disclaimer that I'm learning lol)

 

My understanding is that the cca is a statute law?

 

If so it clearly states that a creditor may not pursue a debtor until it has fulfilled the obligation to supply the docs requested under the relevant sections. So clearly until lowell or any other DCA have these docs in their possession any action taken is contrary to the law.

 

If we look at the time frame given to produce ie 12 + 2 one would also think that they need the docs in their possession to comply as requesting these from the original creditor who has (washed their hands of the matter) is clearly going to cause a problem.

 

The irony is, from what I've learn recently, our legal system is based on the old Admiralty law which governed ships and is therefore contract law. Yet in our case no contract was produced! No default notice re the contract was produced. Mmmmm

 

I've also since googled the judge in question and found him accused of failing to admit important docs in another case where a chap faced bankruptcy due to a much bigger case against the Shell company where the guys house was built on a contaminated land (reported by Channel 4 program)

 

The plot thickens.

[Banking on change]

Can any one tell me what form I need to appeal the judges decision.

I've looked everywhere online but can't find a definite answer.

 

I need a form to challenge the judge for err at law and it needs to be on by Monday!

[The Mould]

“Mould You are a diamond!!

 

Re your comment: "In relation to your second paragraph above, my opinion would be that you contact the creditor direct and make your reasonable offer to him in writing. Forget trying to negotiate through his instructed sols." I'm not sure I follow what you mean by make a reasonable offer. I'm not looking to make them any offer, I'm looking to challenge their win re my set-aside being refused.

 

So I'm going to file an appeal. Any guidance on this would be very much appreciated.

It has to be done by Monday I believe.

 

I wish to argue that the judge was err at law as there was no CCA, no default notice and ppi on the account”.

Pardon me my dear fellow for having misunderstood your case and your standing thereon, no disrespect was intended as regards my initial understanding and advice posted on your case. Then, as you state, simply argue these 3 points of law in your appellant’s notice and include all documentary evidence upon which you rely in support of the same.

Read up on CPR Pt 52 Appeals as this will help you.

Uncle, as regards your post #51, I believe that service of SD is indeed a creditor’s attempt to enforce the agreement. The creditor is in fact saying that amounts due under the agreement are due and owed, he is, therefore, commencing with proceedings to enforce the agreement against his debtor. This is my belief and opinion of course.

Kind regards

The Mould

[The Mould]

Can any one tell me what form I need to appeal the judges decision.

I've looked everywhere online but can't find a definite answer.

 

I need a form to challenge the judge for err at law and it needs to be on by Monday!

 

 

As regards your appeal; firstly send an application to the judge who handed down his judgment against you and request therein his permission to appeal.

 

 

Failing the above, you require an Appellant's notice which you ought to be able to download from the Ministry of Justice web site (click on Court forms).

 

 

Please read CPR Pt 52 and Practice Direction 52, which you can peruse from the Ministry of Justice website, and make yourself learned on the same.

 

 

In fact, later on I shall post all relevant material and case law as regards appealing for you to get stuck into.

 

 

Kind regards

 

 

The Mould

[Banking on change]

In fact, later on I shall post all relevant material and case law as regards appealing for you to get stuck into.

 

The Mould

 

Bless you Mould

 

Mmmm get his permission to appeal his decision. Aghhh he was horrid to my wife, the thought of asking his permission makes me sick. Do I have to do this?

 

I'm under the impression I only have 14 days from the hearing which will make Monday the deadline.

Am I able to request more time or is the document I need to submit to the court simple to complete.

 

By the way I agree with your view that the SD in indeed the beginning of enforcement because it is requesting, no insisting "pay up or else!" Seems like enforcement to me.

 

Have a wonderful week end Mould

[The Mould]

Bless you Mould

 

Mmmm get his permission to appeal his decision. Aghhh he was horrid to my wife, the thought of asking his permission makes me sick. Do I have to do this?

 

I'm under the impression I only have 14 days from the hearing which will make Monday the deadline.

Am I able to request more time or is the document I need to submit to the court simple to complete.

 

By the way I agree with your view that the SD in indeed the beginning of enforcement because it is requesting, no insisting "pay up or else!" Seems like enforcement to me.

 

Have a wonderful week end Mould

#

#

 

 

Sorry Banking on a change, not well enough to post up that material as regards CPR Pt 52 Appeals.

The material is substantive and, unfortunately, my ill health is causing my problems again (some days good, most days bad).

In the meantime, have a look at ‘Wendyboats’ case as I am certain that I posted a great deal of info on her case in relation to CPR Pt 52 Appeals.

Further, hopefully some other fellow members of Cag will come on board your case and help you with some advice/opinion and support.

When I am having a good day again, I will post back here for you.

Kind regards

The Mould

[mjt2013]

You won't need a hearing before the original judge to orally ask his permission to appeal so don't worry that he was horrible, you won't have to see him.

[mjt2013]

The document is relatively easy to complete. You can apply for permission to appeal out of time and, as a LiP, it's usually granted.

[Banking on change]

Mould, so sorry to hear you are struggling with your health.

Take care of yourself my friend. Wish you well!!

 

Mjt thanks for that.

 

I did ask the judge at the end of the hearing if we could appeal and he said yes.

So I really just need to know the form required. I'll have a read of Mould's advice to wendyboats and hopefully its in there somewhere.

 

I thought the appeal went to a higher court and therefore a higher judge?

[The Mould]

Below is the full run down as regards appeals. Peruse the same as it will empower you with knowledge as regards what to do and the authorities that you can rely upon in relation to your case, which is the ethos of CAG.

Part 52 Appeals

Editorial introduction

52.0.2 Under the former procedural rules the rights of appeal in civil litigation were extensive. A disappointed litigant could generally appeal to the Court of Appeal against a final decision, however inconsequential their litigation may be. In the case of "interlocutory" decisions two-stage appeals (first to the judge and then to the Court of Appeal) were commonplace. The requirement for leave to appeal was gradually extended over the years, but the philosophy remained that the litigant should generally have two bites at the cherry. Appeals from a district judge or master to a judge were full rehearings. Appeals to the Court of Appeal were limited rehearings.

Between 1994 and 2000 the reform of civil appeals was under active consideration. This review continued both during and after the Woolf Inquiry.

Woolf Report

52.0.3 Lord Woolf's final report on "Access to Justice" (HMSO, July 1996), which followed a two year inquiry, dealt with appeals at Ch.14. Lord Woolf defined the purpose of appeals in para.2 of that chapter:

"Appeals serve two purposes: the private purpose, which is to do justice in particular cases by correcting wrong decisions, and the public purpose, which is to ensure public confidence in the administration of justice by making such corrections and to clarify and develop the law and to set precedents."

Lord Woolf urged that these purposes should be achieved without introducing unnecessary costs and delay. He recommended (amongst other matters) that leave to appeal should be required for all interlocutory appeals; that some appeals should lie to courts lower than the Court of Appeal; that all appeals should be of the "limited Court of Appeal rehearing type"; that there should be greater uniformity in the procedure for statutory appeal to the courts; and that the rules on appeals should be rationalised, so that there may be a single procedure for all appeals. Lord Woolf's recommendations on appeals were provisional, since in March 1996 the Lord Chancellor announced that a full review of the civil division of the Court of Appeal would be undertaken, starting two months after publication of the Woolf Report.

Bowman Report

52.0.4 In October 1996 a full review of the civil division of the Court of Appeal was instituted under the chairmanship of Sir Jeffery Bowman. The review team included Lord Woolf. Its report ("the Bowman Report") was published in September 1997. Its recommendations were along the lines foreshadowed by the Woolf Report, but were very much more detailed. The report was backed by statistical research into the manner in which applications and appeals currently arrived at the Court of Appeal: see the "mapping study" at Appendix 7 to the Bowman Report. The review team also surveyed the procedures operated by appellate courts in Ontario, New York, San Francisco and Washington DC. These procedures are summarised in Appendix 2 to the Bowman Report.

Chapter 2 of the Bowman Report discussed the principles underlying a civil appeals system. The same considerations of justice, expedition and moderation of costs should apply to appeals as to first instance litigation. An appeal should not be seen as an automatic further stage in a case. A dissatisfied litigant's only "right" is to have their case looked at by a higher court (in the context of a permission application) to see if there appears to have been an injustice. If they cross that threshold, then they should be allowed to appeal. The review team summarised the purpose of appeals in this way:

"There is a private and a public purpose of appeals in civil cases. The private purpose is to correct an error, unfairness or wrong exercise of discretion which has led to an unjust result. The public purpose is to ensure public confidence in the administration of justice and, in appropriate cases, to:

— Clarify and develop the law, practice and procedure; and

— Help maintain the standards of first instance courts and tribunals."

The review team accepted the principle of proportionality. Appeals should be dealt with in ways that are proportionate to the grounds of complaint and the subject matter of the dispute. The review team further considered that more than one level of appeal could not normally be justified, except where there was an important point of principle or practice involved.

The Bowman Report made 146 detailed recommendations, which were in line with the general philosophy set out in Ch.2 of the report. Many of these recommendations were implemented by the Access to Justice Act 1999 [>>Text] and CPR Pt 52, with effect from May 2, 2000.

Access to Justice Act 1999

52.0.5 The Access to Justice Act 1999 [>>Text] (Vol.2, Section 9A) paved the way for the reforms to civil appeals, which were introduced in May 2000. Section 54 [>>Text] enables rules of court to impose a "permission" requirement upon any appeal to a county court, the High Court or the Court of Appeal. Section 55 [>>Text] imposes restrictions upon second appeals. Only the Court of Appeal can grant permission for second appeals and the criteria for granting such permission are strict.

Section 56 [>>Text] empowers the Lord Chancellor to provide for the destination of appeals by means of statutory instrument, after first consulting with the Heads of Divisions and the Master of the Rolls. The Lord Chancellor has exercised this power by making the Access to Justice Act 1999 (Destination of Appeals) Order 2000. The Order is set out in Vol.2, Section 9A. It is discussed below under the heading "Destination of Appeals". Section 57 [>>Text] enables appeals to junior appellate courts to be re-assigned to the Court of Appeal. Sections 58 and 59 [>>Text] amend provisions of the Senior Courts Act 1981 [>>Text] relating to the civil division of the Court of Appeal. More specific reference to the Access to Justice Act 1999 [>>Text] will be made in the commentary following individual rules.

CPR Part 52

52.0.6 Part 52, which came into force on May 2, 2000, created a uniform system of appeals. It replaced the former RSC Ord.55 (appeals to High Court from court, tribunal or person), Ord.56 (appeals to High Court by case stated), Ord.58 (appeals from masters, registrars, referees and judges), Ord.59 (appeals to the Court of Appeal), Ord.60 (appeals to the Court of Appeal from the Restrictive Practices Court) and Ord.61 (appeals from tribunals to Court of Appeal by case stated).

Part 52 regulates not only appeals from one court to another, but also appeals to the courts from tribunals and similar bodies pursuant to statute.

CPR r.2.1(2) states that the CPR do not apply to all civil proceedings, e.g. insolvency proceedings and family proceedings. It should be noted, however, that the ambit of Pt 52 is wider. Part 52 applies to some of the proceedings specified in r.2.1 as falling outside the scope of the CPR. See para.2 of Practice Direction 52A and the commentary following r.52.1 below.

Reforms introduced in May 2000

52.0.7 The changes which came into effect on May 2, 2000 were described by Brooke L.J. in Tanfern Ltd v Cameron MacDonald (Practice Note) [2000] 1 W.L.R. 1311 as "the most significant changes in the arrangements for appeals in civil proceedings in this country for 125 years" (judgment para.50). The reforms were, broadly speaking, welcomed by N.H. Andrews in "A new system of civil appeals and a new set of problems" [2000] C.L.J. 464. Andrews noted that the Court of Appeal's law–making role would be enhanced; that the changes would reduce the delay, expense and uncertainty of civil proceedings; and that there would be a greater incentive for litigants to "get it right first time round". However, these changes would reduce the chances of rectifying defective decisions. This is the price paid for achieving the impressive benefits of the new system of appeals. Andrews noted that there might be some tension between the effect of these reforms and the effect of the House of Lords' decision in Arthur JS Hall & Co v Simons [2002] 1 A.C. 615 (which was given on July 20, 2000).

Pre-2000 authority

52.0.8 The changes made in 2000 are so fundamental that citation of authority on the former rules is of limited assistance in resolving questions which arise concerning Pt 52. This does not, however, mean that experience gained from the old rules or judicial analysis of those rules should be ignored. The commentary to RSC Ords 55, 56, 58 and 59 in the Supreme Court Practice 1999 neatly distils the authorities and learning which accumulated over the last 125 years of the second millennium.

Terminology used in this commentary

52.0.9 In this commentary the terms "appeal", "appeal court", "lower court", "appellant", "respondent" and "appeal notice" have the meanings assigned to them in r.52.1(3). In addition:

"junior appellate court" means any appeal court below the level of the Court of Appeal;

"he" means "he or she";

(for the avoidance of doubt) "appeal" includes an appeal by a respondent, i.e. what has traditionally been called a cross-appeal.

"The Destination Order" means the Access to Justice Act 1999 (Destination of Appeals) Order 2000.

The Amended Rules and the New Practice Directions (as from October 1, 2012)

52.0.10 In 2010, a sub-committee chaired by Moore-Bick L.J., the Deputy Head of Civil Justice, recommended that changes be made to the procedures governing civil appeals. Whilst this was originally limited to matters such as the filing of documents, it was thought that the opportunity should be taken to reduce the text and simplify the operation of Pt 52. The matter was referred to the Civil Procedure Rules Committee and they amended the Rules and prepared five separate new Practice Directions (PD 52A–PD 52E). The amended Rules and the new Practice Directions came into force on October 1, 2012 (SI 2012/2208).

The most significant amendment to the Rules is at r.53.3(4A)(a) and (b), which extends the right (previously available only to the Court of Appeal) to dismiss on paper an application for permission to appeal as being 'totally without merit' to High Court Judges, Designated Civil Judges, and Specialist Civil Judges. The consequence of such an order is that the person against whom it is made may not request the decision to be reconsidered at an oral hearing.

As for the new Practice Directions, PD 52A contains general provisions relating to appeals. Tables 1, 2 and 3 show, by reference to the type of decision in question, to which level of judge/court an appeal should be made. The Practice Direction also explains what a final decision is, because an appeal against a final decision may have to be made to a different judge/court than an appeal against a decision that is not final.

PD 52B contains particular provisions governing appeals in the County Court and in the High Court. The Tables show the relevant Appeal Centres for every County Court and District Registry on each Circuit. PD 52C deals with Appeals to the Court of Appeal. Its most important provisions are at section 5, where there is a detailed timetable showing precisely when and how each step in the appeal process must be taken. PD 52D is concerned with Statutory Appeals and Appeals subject to special provision, and PD 52E deals with Appeals by way of Case Stated.

Destinations of appeals—routes of appeals

52.0.11 Section 16(1) of the Senior Courts Act 1981 [>>Text] provides that subject to certain exceptions (e.g. direct appeals to the Supreme Court) the Court of Appeal shall have jurisdiction "to hear and determine appeals from any judgment or order of the High Court". Section 77(1) of the County Courts Act 1984 [>>Text] provides that, subject to specified exceptions, if a party to proceedings in a county court "is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal ..." These provisions are set out in Vol.2, Section 9A.The Destination Order

In the exercise of his power under s.56 of the Access to Justice Act 1999 [>>Text] the Lord Chancellor made the Access to Justice Act 1999 (Destination of Appeals) Order 2000, which is referred to in this commentary as "the Destination Order". The Destination Order is reproduced at Vol.2, Section 9A. The Destination Order provides that a number of appeals which (under the statutes referred to in the previous paragraph) would otherwise lie to the Court of Appeal shall now be dealt with by a lower court. The Destination Order also provides a summary of the destinations for different types of civil appeals.

The destination arrangements are restated in Section 3 of Practice Direction 52A, where they are supplemented by further guidance. The court or judge to which any appeal is to be made is set out in Section 3 in three tables.

The general principle is that appeal lies to the next level of judge in the court hierarchy. See Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 W.L.R. 1311 at para.15.

Article 2 of the Destination Order provides that in the High Court appeals lies from a master or district judge of the High Court to a High Court judge. Article 3 provides that appeal lies from a district judge of a county court to a judge of a county court (i.e. to a circuit judge), and that appeal lies from any other decision of a county court (i.e. from a circuit judge or recorder) to the High Court.The effects of arts 4(a) and 4(b)

Article 4 of the Destination Order sets out two exceptions to the general provisions contained in arts 2 and 3. These two exceptions appear in art.4(a) and art.4(b). The general effect of these exceptions is to provide that appeals from county courts (other than in family proceedings) will lie to the High Court, rather than to the Court of Appeal.

The effect of art.4(a), as amended by the Civil Procedure (Modification of Enactments) Order 2003 (SI 2003/490), is as follows. The normal route of appeal will not be followed where a district judge or a circuit judge in a county court, or a master or a district judge in the High Court, gives the "final decision" in a multi-track claim made under CPR Pt 7 and allocated to the multi-track under those rules. In such a case appeal lies directly to the Court of Appeal. This exception is reflected in Table 1 in Section 3 of PD 52A. Claims to which Section I of CPR Pt 55 (Possession Claims) apply are examples of claims that are brought under Pt 7.

It should be noted that art.4 (a) does not apply (and therefore the normal destination arrangements apply) to Pt 8 claims, which are allocated to the multi-track under r.8.9©.

The exception in art.4(a) has no application to a case which was not allocated to the multi-track. This is so even if the district judge regarded the case as suitable for the multi-track and would have so allocated it, had they appreciated that the allocation was important. See Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R. 17 at paras 7 and 54. The exception in art.4(a) does not apply to a case which was allocated to the multi-track after the decision under appeal had been made: Milward v Three Rivers District Council CAT, October 25, 2000.

The effect of art.4(b), as amended by the Civil Procedure (Modification of Enactments) Order 2002 (SI 2002/439) and the Civil Procedure (Modification of Enactments) Order 2003 (op. cit.), is as follows. Where a final decision is made in certain specialist proceedings, appeal lies directly to the Court of Appeal, whatever level of judge made the "final decision". This exception also is reflected in Table 1 attached to para.2A.1 in the practice direction.

Care has to be taken in those circumstances where a trial judge sitting in a county court case makes several decisions, for some of which the route of appeal is to the High Court, and for others to the Court of Appeal. An illustration is provided by Southwark London Borough Council v Ofogba [2012] EWHC 1620 (QB), June 15, 2012, unrep. (Hickinbottom J.), a case in which a local housing authority brought proceedings against a tenant for possession and rent arrears and the judge decided to adjourn the possession claim and to give a money judgment for the arrears; in the circumstances, the route for the tenant's appeal against the former decision (not being a final decision) was to the High Court, and for his appeal against the latter decision, to the Court of Appeal (with permission). (In that case, so that both appeals could be heard by the same appellate forum, the High Court judge, in exercise of powers under r.52.14, transferred the appeal against the former decision to the Court of Appeal.)

The destination of any second appeal is governed by art.5 of the Destination Order. Any decision which was made on an appeal to a county court or the High Court (other than from an officer of the court authorised to assess costs) can only be appealed to the Court of Appeal.The meaning of "final decision"

If the effects of the exceptions to the general principle stated in paras (a) and (b) of art.4 of the Destination Order are to be properly understood, it is necessary to be clear about what is meant by "final decision". This matter is dealt with by paras (2)© and (3) of art.1 of the Destination Order. As is explained immediately below, these paragraphs are repeated in and amplified by provisions in the practice direction. The application of these provisions has occasioned difficulty and the Court of Appeal has sought to explain them in a number of cases; notably in Tanfern Ltd v Cameron-MacDonald (Practice Note), op. cit., Lloyd Jones v T. Mobile (UK) Ltd [2003] EWCA Civ 1162; [2003] 3 E.G.L.R. 55 and Scribes West Ltd v Relsa Anstalt (Practice Note) [2004] EWCA Civ 965; [2005] 1 W.L.R. 1839. For summary of other relevant authorities, see Vol.2 para. 9A–901.1.

Paragraph (2)© of art.1 of the Destination Order states that "final decision" means a decision of a court "that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issue before it". This includes, not only the court's decision on the merits of a claim, but also as to where the liability for the costs of the claim (or issue) should fall: see Dooley v Parker [2002] EWCA Civ 96. The terms of para.(2)© are repeated in para.2A.2 of the practice direction where in addition, by way of further explanation, it is stated (following what was said in the Tanfern Ltd case, op. cit., para.18), that a case management decision, the grant or refusal of interim relief, a summary judgment, or a striking out, are not final decisions for the purpose of determining the appropriate route of appeal. For the avoidance of doubt, para.2A.4 of the practice direction states that an order made on a summary or detailed assessment of costs, or on an application to enforce a final decision, is not a final decision (see further Tanfern Ltd, op. cit., para.17, as explained in Dooley, op. cit., para.7).

Paragraph (3) of art.1 of the Destination Order states that a decision of a court "shall be treated as a final decision" where two conditions are met: first, the decision is made at the conclusion of part of a hearing or trial which has been split into parts, and secondly, the decision would, if made at the conclusion of that hearing or trial, be a final decision under para.(2)©. This is repeated in para.3.7 of PD 52A and in addition it is stated in para.3.8, again by way of further explanation (following what was said in the Tanfern Ltd case, op. cit., para.17), that a judgment on liability at the end of a split trial and a judgment at the conclusion of the assessment of damages following a judgment on liability, are both final decisions for this purpose. In Persaud v Dulovic [2002] EWHC 889 (QB); [2002] C.P. Rep. 56, it was held by Silber J. (partly on the basis that "split into parts" does not necessarily mean split by an order of the court) that an appeal from a county court judge's dismissal of an application by a party to proceedings for a wasted costs order, against the legal representative of his opponent in those proceedings made and dealt with after trial, was an appeal from a final decision and therefore the proper route for appeal was not to the High Court but to the Court of Appeal (see further Persaud v Persaud [2003] EWCA Civ 394; [2003] P.N.L.R. 26). Furthermore, where a judge having upheld a submission of no case to answer enters judgment for the defendant at "half time", that constitutes a final decision for the purposes of the Destination Order: see Graham v Chorley BC [2006] EWCA Civ 92.

Despite certain observations in Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21; [2002] 1 W.L.R. 2304, recourse should not be had to the pre-CPR case-law as an aid to interpreting or applying the Destination Order: Scribes West Ltd v Relsa Anstalt (Practice Note) [2004] EWCA Civ 965 at [22]–[25]; [2005] 1 W.L.R. 1839.

[The Mould]

The further explanations now given in paras 3.7 and 3.8 of PD 52A of what are not, and of what are, final decisions (going beyond art.4), were initially added with effect from April 6, 2006, when the single practice direction then supplementing Pt 52 was substantially amended. As indicated above, they take into account guidance given by the Court of Appeal in reported cases.

If the above provisions are not observed, much time and expense will be wasted by pursuing appeals in the wrong court. In order to avert this risk, r.40.2(4) requires that any court dealing with an application for permission to appeal must state (a) whether or not its judgment or order is final; (b) whether appeal lies and, if so, to which appeal court; © whether the court gives permission to appeal; (d) if not the appropriate appeal court to which a further application for permission to appeal should be made. This provision is frequently ignored, much to the disadvantage of litigants: see e.g. Chadwick v Hollingsworth [2010] EWCA Civ 1210. Advocates should draw this provision to the attention of the judge on every application for permission to appeal.Recent Guidance

The exception in art.4(a), that an appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision in a claim made under Pt 7 and allocated to the multi-track, will be pragmatically enforced. Thus in Thorne v Courtier & Others [2011] EWCA Civ 104 a claim for possession of land was compromised, but a dispute subsequently arose as to the correct interpretation of the settlement agreement. In consequence, the claimant issued an application under CPR Pt 23 seeking directions for the determination of the dispute. The issue was whether the resolution of such an application, which might be regarded as ancillary to the original proceedings, was caught by the art.4(a) exception. The Court of Appeal concluded that it was, finding that the application, although in form made under Pt 23, gave rise to independent proceedings. As the decision was in substance a final decision, the Court of Appeal had jurisdiction to hear the appeal. In Fox v Foundation Piling Group Limited, which was heard at the same time, an issue arose as to the correct route for an appeal from a circuit judge's order as to costs following the settlement of the case. Again the Court of Appeal concluded that the costs order finally disposed of that element of the proceedings and as such constituted a final order within the meaning of art.1(2) and disposed of the proceedings as a whole. Again, therefore, the Court of Appeal had the jurisdiction to consider the appeal.

In Massie v H [2011] EWCA Civ 115 , (Civil Procedure News Issue 3/2011) the Court of Appeal held that, where a claim was made in the county court pursuant to the Part 8 procedure, and was not a claim made under Pt 7 and allocated to the multi-track, the Court of Appeal did not have jurisdiction to entertain the appeal. It was said that the practical solution was for the court to declare their lack of jurisdiction and to transfer the matter to the High Court, and then for one member of the panel to continue to sit as a High Court judge to consider whether the applicant should be granted permission to appeal.

The Court of Appeal

52.0.12 The constitution, jurisdiction and powers of the Court of Appeal are governed by ss.1–3 [>>Text], 15–18 [>>Text] and 53–58 [>>Text] of the Senior Courts Act 1981 [>>Text]. "The Court of Appeal is a statutory creation with the boundaries of its jurisdiction identified by, and subject to, restrictions imposed by statute": Westminster City Council v O'Reilly [2003] EWCA Civ 1007 at [6]; [2004] 1 W.L.R. 195.

The Court of Appeal's power to hear appeals from the High Court is derived from ss.16–18 [>>Text] of the Senior Courts Act 1981 [>>Text]. The powers of the Court of Appeal in relation to appeals from county courts are set out in ss.77–81 [>>Text] of the County Courts Act 1984 [>>Text]. Where statute provides that any order, judgment or decision of a court or tribunal is final, the Court of Appeal has no power to hear an appeal: see s.18(1)© [>>Text] of the Senior Courts Act 1981 [>>Text] and Westminster City Council v O'Reilly [2003] EWCA Civ 1007; [2004] 1 W.L.R. 195 (no appeal to Court of Appeal from decision of the High Court on an appeal by way of case stated from licensing justices pursuant to s.111 of the Magistrates' Courts Act 1980). In Farley v Child Support Agency [2005] EWCA Civ 869 the Court of Appeal handed down a judgment without jurisdiction, since all parties and the court had overlooked the above provisions. The court then used a highly accelerated judicial review procedure, in order to legitimise that judgment.

The relevant provisions of the Senior Courts Act 1981 [>>Text] and the County Courts Act 1984 [>>Text] are set out in Vol.2, Section 9A.

In Jones v Ceredigion County Council [2005] EWCA Civ 986; [2005] 1 W.L.R. 3626 it was held that the Court of Appeal had jurisdiction to hear appeals in cases where the appellant had obtained a "leapfrog" certificate under Pt 2 of the Administration of Justice Act 1969 [>>Text], but subsequently did not pursue his appeal to the House of Lords because of restrictions placed by the House of Lords upon its grant of leave to appeal. Since the date of that decision the Supreme Court has replaced the House of Lords as the final court of appeal.

In relation to issues of public importance, the Court of Appeal has power to entertain an appeal, with the consent of all parties, even though the dispute between those parties has been settled at the time of the hearing: Bowman v Fels [2005] EWCA Civ 226; [2005] 1 W.L.R. 383 at [11]–[18]. In Rolls Royce Plc v Unite the Union [2009] EWCA Civ 387 the claimant asked the court to determine whether the inclusion of length of service within a selection matrix for redundancy situation would be in breach of certain regulations. The judge resolved the questions of statutory construction against the claimant, but also expressed doubts about the appropriateness of the procedure. The Court of Appeal concluded that the appeal was not academic and that, accordingly, it should determine the appeal. See further Vol.2, para.9A–77 (Jurisdiction where proceedings raising "academic" or "hypothetical" point of law), and note Hutcheson v Popdog Ltd (Practice Note) [2011] EWCA Civ 1580, [2012] 1 W.L.R. 782, CA, referred to there (summarising principles to be applied in appeals in private law cases).

Parties to pending appeals should keep the Court advised of any developments that might render an issue raised in the appeal academic (Aitken v Commissioner of Police for the Metropolis [2011] EWCA Civ 582, May 18, 2011, CA, unrep.).

The Court of Appeal has jurisdiction to consider a point of general importance, not raised below, which has subsequently occurred to the appellate court, in order to ensure the state's compliance with its international obligations: see Bulale v SSHD [2008] EWCA Civ 806; [2009] Q.B. 536.

The Court of Appeal does not have any original jurisdiction to grant declarations as to the meaning of its own orders: Dadourian Group International Inc v Simms [2010] EWCA Civ 1327 at [9].

Appeals are against orders, not reasoned judgments

52.0.13 Section 16 of the Senior Courts Act 1981 [>>Text] provides: "Subject as otherwise provided by this or any other Act ... the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court." Accordingly appeal lies against the order made by the lower court, not against the reasons which that court gave for its decision or the findings which it made along the way. Thus a party who has been wholly successful in obtaining or (as the case may be) resisting the relief sought cannot appeal against the judgment, in order to challenge findings made: Lake v Lake [1955] P 336, CA (a decision based upon s.27(1) of the Supreme Court of Judicature (Consolidation) Act 1925, which, so far as material, was in the same terms as s.16 of the Senior Courts Act 1981 [>>Text]). If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding. See Compagnie Noga D'Importation Et D'Exportation SA v Australia and New Zealand Banking Group Ltd [2002] EWCA Civ 1142; [2003] 1 W.L.R. 307.

By way of exception to the principles stated above, in Morina v Secretary of State for Work and Pensions [2007] EWCA Civ 749 the Court of Appeal held that it was not precluded from hearing appeals by the Secretary of State on jurisdictional points from a social security commissioner, even though the Secretary of State had "won" before the commissioner. In each of the two cases under consideration the Secretary of State had lost on the jurisdictional points, but won on the merits before the commissioner, with the result that the Secretary of State was the overall victor below. Nevertheless there was good reason for the jurisdictional points to be decided by the Court of Appeal.

A further consequence of section 16 of the Senior Courts Act 1981 [>>Text] is that no appeal against a judgment is possible unless and until the lower court makes the order which is foreshadowed by that judgment: Re Mathew [2001] B.P.I.R. 531.

No appeal from High Court to Court of Appeal in any criminal cause or matter

52.0.14 Section 18(1) of the Senior Courts Act 1981 [>>Text] provides: "No appeal shall lie to the Court of Appeal—(a) ... from any judgment of the High Court in any criminal cause or matter". In Amand v Secretary of State for Home Affairs [1943] A.C. 147, an order refusing habeas corpus to a person who had been arrested for the purpose of being handed over to a foreign state for trial was held to have been made in a "criminal cause or matter". Viscount Simon L.C. stated that the nature and character of the proceeding in which habeas corpus was sought provided the test. In US Government v Montgomery [2001] UKHL 3; [2001] 1 W.L.R. 196 proceedings under s.77 of the Criminal Justice Act 1988, which were commenced in consequence of orders made in criminal proceedings in the United States, were held not to be a "criminal cause or matter". Accordingly, the Court of Appeal had jurisdiction to hear the appeal. Lord Hoffmann (with whom Lord Cooke, Lord Hutton and Lord Scott agreed) stated at para.22:

"... the jurisdiction conferred upon the High Court under Pt VI of the 1988 Act is a civil jurisdiction, notwithstanding that that jurisdiction exists to enforce or determine disputes over the debts or proprietary rights created or consequent upon a confiscation order made by a criminal court."

In R. (Mehmet) v Clerk to the Justices of Miskin, Cynon Valley & Merthyr Tydfil Petty Sessional Divisions [2002] EWCA Civ 1248, the Court of Appeal held that an order of the Divisional Court refusing the claimant permission to seek judicial review of the assessment of his costs following acquittal in the magistrates' court was a "judgment of the High Court in a criminal cause or matter". Consequently the Court of Appeal had no jurisdiction to hear the claimant's application for permission to appeal. In reaching this conclusion Brooke L.J. applied the following dictum of Sir John Donaldson MR in Carr v Atkins [1987] Q.B. 963 at 967: "The nature of an order made or refused in judicial review proceedings must depend not upon that order but upon the order that is sought to be reviewed."

When the Administrative Court hears judicial review proceedings arising out of criminal matters, no appeal lies to the Court of Appeal: R. (SW Yorkshire Mental Health NHS Trust) v Bradford Crown Court [2003] EWCA Civ 1857; [2004] 1 W.L.R. 1664; R. (Aru) v Chief Constable of Merseyside Police [2004] EWCA Civ 199; [2004] 1 W.L.R. 1697.

Bail pending appeal

52.0.15 In R. (Sezek) v SSHD [2001] EWCA Civ 795 the question arose whether the Court of Appeal had jurisdiction to grant bail in civil proceedings concerning immigration. Peter Gibson L.J., giving the judgment of the court, stated at [16] that the High Court had power in judicial review proceedings to make ancillary orders temporarily releasing an applicant from detention. Accordingly, on an appeal in those proceedings by virtue of s.15(3) of the Senior Courts Act 1981 [>>Text] the Court of Appeal can make the like order. Nevertheless the Court of Appeal, in making such a decision, should give great weight to the fact that the Secretary of State has decided that the individual should be detained and to the reasons why the Secretary of State opposes release.

In an appeal to the Court of Appeal from the Special Immigration Appeals Commission ("SIAC") concerning certification, it was held that the court had no jurisdiction to hear an appeal against the grant or refusal of bail by SIAC: G v Secretary of State for the Home Department [2004] EWCA Civ 265; [2004] 1 W.L.R. 1349. However, the web of statutory provisions governing these matters is subject to frequent and continuing amendments.

The problem of vexatious litigation

52.0.16 In Bhamjee v Forsdick (No.2) [2003] EWCA Civ 1113; [2004] 1 W.L.R. 88 the Court of Appeal addressed the problem of vexatious litigants. These are a tiny minority of litigants who will not take "no" for an answer, and who bombard the courts with unmeritorious applications. A consequence of the reforms introduced in May 2000 is that respondents are generally not "vexed" by the appeals which such individuals launch. However, these appeals do impose a substantial burden on appeal courts, which have to process and, in due course, refuse the applications for permission to appeal.

The Court of Appeal in Bhamjee designed a new form of order, the "general civil restraint order", which will prevent litigants of the type described from commencing any action or making any application without prior permission from the court (to be dealt with in writing). The Court of Appeal further held that if a litigant subject to an extended civil restraint order or a general civil restraint order persists in making hopeless applications, then a High Court judge or a designated civil judge (or their deputy) may give a direction prohibiting them from applying for permission to appeal: see Bhamjee at [51]. The Rule Committee subsequently codified the effect of Bhamjee: see CPR r.3.11 and the practice direction on civil restraint orders supplementing r.3.11. Any judge proceeding under these provisions must allow the litigant a proper opportunity to prepare and present their case: R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 W.L.R. 536.

In Perotti v Collyer-Bristow [2004] EWCA Civ 639; [2004] 4 All E.R. 53 the claimant made a batch of hopeless applications to the Court of Appeal. In the previous seven years he had made 80 applications to the Court of Appeal, only two of which had been allowed. The Court of Appeal concluded that the existing extended civil restraint order provided insufficient protection against the nuisance posed by the claimant's litigious activities. The Court directed that for the next two years any application made by the claimant to the Court of Appeal in any matter not embraced by the extended civil restraint order should be considered only on paper by a judge of the Court of Appeal (unless that judge directed an oral hearing). The decision on paper would be final and not subject to reconsideration at an oral hearing. It should be noted, however, that (save in respect of family proceedings) the introduction of r.52.3(4A) in 2006 has removed the mischief with which Perotti was concerned.

Any appeal court dismissing an application for permission to appeal or an appeal, which it considers to be totally without merit, must (a) record that fact in its order and (b) consider whether to make a civil restraint order: see r.52.10 (5) and (6).

See further Vol.2, para.9A–150.

Publication of Court of Appeal judgments and related information

52.0.17 All substantive decisions of the Court of Appeal are now published, within three days of becoming available, on the website of the British and Irish Legal Information Institute: http://www.bailii.org [Accessed March 12, 2010].

Much useful information about the civil division of the Court of Appeal and its workings can be found on the Courts and Tribunals Service website: http://www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal/civil-division [Accessed November 5, 2012]. This website includes a simple interactive guide to routes of appeal.

Relationship between an application to set aside an order and an appeal

52.0.18 This issue is discussed in Bank of Scotland v Pereira (Practice Note) [2011] EWCA Civ 241, [2011] 1 W.L.R. 2391, CA; see para.39.3.9 above. In essence, defendants seeking a new trial on the grounds that they did not attend the original trial should normally proceed under CPR r.39.3. An appeal in the absence of aCPR r.39.3 application will require unusual facts before it is heard by the appellate court although defendants who conclude that they cannot realistically seek a new trial can nonetheless seek to appeal against the trial judge's decision in the same way as any other defendant.

For a recent case in which the reasoning in Bank of Scotland v Pereira was applied, and the Court of Appeal concluded that the defendant should have applied under r.39.3 rather than pursuing an appeal, see Williams v Hinton [2011] EWCA Civ 1123 . However the court went on to find that the procedural error should not prevent the appeal from being considered on its merits.

I. General Rules about Appeals

Rule 52.1 Scope and interpretation

52.1 †

(1) The rules in this Part apply to appeals to—

(a) the civil division of the Court of Appeal;

(b) the High Court; and

© a county court.

(2) This Part does not apply to an appeal in detailed assessment proceedings against a decision of an authorised court officer.

(Rules 47.20 to 47.23 deal with appeals against a decision of an authorised court officer in detailed assessment proceedings.)

(3) In this Part—

(a) "appeal" includes an appeal by way of case stated;

(b) "appeal court" means the court to which an appeal is made;

© "lower court" means the court, tribunal or other person or body from whose decision an appeal is brought;

(d) "appellant" means a person who brings or seeks to bring an appeal;

(e) "respondent" means—

(i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

(ii) a person who is permitted by the appeal court to be a party to the appeal; and

(f) "appeal notice" means an appellant's or respondent's notice.

(4) This Part is subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal.

Scope of Part 52

52.1.1 The language of r.52.1 indicates the broad scope of Pt 52. Part 52 embraces appeals to county courts, the High Court and the Court of Appeal.

"It encompasses, not only appeals where the lower court was itself a court, but also statutory appeals from the decisions of tribunals, ministers or other bodies or persons. Within the court system, it applies to an appeal from a district judge to a circuit judge, just as it applies to an appeal from a High Court judge to the Court of Appeal. Subject to rule 52.1 (4) and paragraph 17.1 (4) of the practice direction, it applies to a wide variety of statutory appeals where the nature of the decision appealed against and the procedure by which it was reached may differ substantially."

(Per May L.J. in EI Dupont Nemours & Co v ST Dupont [2003] EWCA Civ 1368 at [92]; [2006] 1 W.L.R. 2793.)

The broad scope of CPR Pt 52 is also apparent from the provisions in Section 3 of PD 52A (re routes of appeal within the court system), Section II of the practice direction (re statutory appeals and appeals by way of case stated) and Section III of the practice direction (which makes detailed provision for a variety of specific appeals). See also the introductory commentary to Pt 52, set out above.

Part 52 also applies to an appeal under the Party Wall etc. Act 1996 from the decision of a surveyor appointed under that Act: see Zissis v Lukomski [2006] EWCA Civ 341; [2006] 1 W.L.R. 2778.

Part 52 applies to appeals in insolvency proceedings, only to the extent provided in the Insolvency Proceedings Practice Direction.

Rules of court relating to proceedings arising under the Prevention of Terrorism Act 2005, the Counter-Terrorism Act 2008 and Pt 1 of the Terrorist Asset-Freezing etc. Act 2010, and the Terrorism Prevention and Investigation Measures Act 2011 are found in, respectively, CPR Pt 76, Pt 79 and Pt 80. Certain provisions in those Parts (reflecting the primary legislation to which they relate) deal with appeals to the High Court and to the Court of Appeal and impose additional rules to those that would otherwise apply by operation of Pt 52 or modify such rules. Rules making such additions or modifications are, in Pt 76 rr.76.11 to 76.15, in Pt 79 rr. 79.13, 79.14 and rr.79.14A to 79.14D, and in Pt 80 rr.80.7 to 80.11 and 80.12.

Insofar as it states that Pt 52 is subject to "any enactment" which sets out special provisions with regard to any particular category of appeal, r.52.1(4) states an obvious principle. Many statutes provide rights of appeal. It is important to note that, in doing so, such statutes (a) may make express provision as to procedural matters, including, for example, requirements as to the giving of notice to non-parties, as to the service of documents, and as to time limits for filing notices of appeal, and (b) in doing so may make provisions that vary from those contained in the CPR (in particular in Pt 52) and which would otherwise (but for the statute) apply. Practice Direction 52D contains special directions for numerous statutory categories of appeal which, where necessary, reflect such statutory provisions, but that Section is not exhaustive. A party proposing to exercise a particular statutory right of appeal should take care to consult, not only Practice Direction 52D and other relevant CPR provisions, but the statute itself. See, e.g. Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R. 276, HL (where held that on an appeal to the High Court under the Extradition Act 2003 the effect of certain sections in that statute was to deny the court power to extend time for service of a notice of appeal, to remedy an error of procedure, or to dispense with service of documents).

Appeals in contempt proceedings

52.1.2 Section 13 of the Administration of Justice Act 1960 (which is set out in Vol.2, Section 9B) provides:

"(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.

(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie...

(b) from an order or decision of a county court ... to the civil division of the Court of Appeal..."

The effect of CPR r.52.1(4) is that the right of appeal to the Court of Appeal under s.13 of the Administration of Justice Act 1960 remains in effect: see Hampshire CC v Gillingham (CAT) June 22, 2000 and Barnet London Borough Council v Hurst (Practice Note) [2002] EWCA Civ 1009; [2003] 1 W.L.R. 722. As to whether and when permission to appeal is required in contempt proceedings, see the commentary following r.52.3 below.

If a circuit judge in the county court makes a committal order or other order in contempt proceedings, appeal lies to the Court of Appeal under s.13(2) of the 1960 Act. If a district judge makes a committal order or other order in contempt proceedings, appeal will ordinarily lie to a circuit judge in the county court. Alternatively, and exceptionally, appeal may lie to the Court of Appeal either by application of King v Read [1999] 1 F.L.R. 425 or through the transfer operation contained in CPR r.52.14. The latter mechanism is to be preferred. See Barnet London Borough Council v Hurst (Practice Note) [2002] EWCA Civ 1009 at [28]; [2003] 1 W.L.R. 722.

In dealing with an appeal under s.13 of the Administration of Justice Act 1960 the Court of Appeal has a complete discretion, fettered only by the need to do justice. The court must take into account the interests of (a) the contemnor, (b) the "victim" of the contempt and © other users of the court (for whom maintenance of the authority of the court is of supreme importance). The interests of the contemnor include ensuring that they have been informed in sufficiently clear terms of what has been found against them. See Re Scriven [2004] EWCA Civ 683 at [30]–[32].

When the civil division of the Court of Appeal is hearing appeals in contempt cases, it will adopt the same principles and approach in relation to sentencing as the criminal division of the Court of Appeal: see Murray v Robinson [2005] EWCA Civ 935 at [2]. The Court of Appeal will not interfere if the sentence fell within the permissible bracket: Devjee v Patel [2006] EWCA Civ 1211.

See further paras 52.3.2 and 52.4.3 below, and Vol.2 para.3C–37. Note also Sch.1 RSC Ord.109 (para.sc109.1 below).

Meaning of "appellant"

52.1.3 In r.52.1(3)(d) "appellant" is defined as "a person who brings or seeks to bring an appeal". This definition is wide enough to embrace a person who was not party to the proceedings below, but who is adversely affected by the outcome. Thus in MA Holdings Ltd v George Wimpey UK Ltd (1) and Tewkesbury BC (2) [2008] EWCA Civ 12; [2008] 1 W.L.R. 1649, M was given permission to appeal, even though it had not been party to the proceedings below. In the proceedings below Wimpey had secured an order quashing the Council's decision to adopt the local plan, thereby directly affecting M's property interests. M "was no mere intermeddling busybody": per Dyson L.J. at [26].

Joinder of additional parties to appeal

52.1.4 The Court of Appeal has power to join additional parties to an appeal, even after the court's order has been sealed, if this is necessary for the purpose of dealing with ancillary orders: see DK v Bryn Alyn Community (Holdings) Ltd (In Liquidation) [2003] EWCA Civ 783.

Costs appeals

52.1.5 Costs appeals fall into two categories: (i) appeals against the order for costs made by a lower court either as part of some wider judgment or in costs-only proceedings pursuant to r.44.12A; (ii) appeals against the detailed assessment of costs made pursuant to such an order.

Appeals in category (i) all fall under the regime of CPR Pt 52. The general approach of appeal courts is one of reluctance to interfere with costs orders, unless the substantive judgment is being varied. "As is well known, orders for costs are very rarely disturbed" per Judge L.J. in Voice & Script International Ltd v Alghafar [2003] EWCA Civ 736. In Adamson v Halifax Plc [2002] EWCA Civ 1134 at [16]; [2003] 1 W.L.R. 60 Sir Murray Stuart Smith, giving the leading judgment, formulated the test as follows:

"Costs are in the discretion of the trial judge and this court will only interfere with the exercise of that discretion on well-defined principles. As I said in Roache v News Group Newspapers [1998] EMLR 161, 172:

'Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors in the scale.'"

Islam v Ali [2003] EWCA Civ 612 provides an example of circumstances in which the Court of Appeal was prepared to vary a costs order made by a circuit judge on the ground that he had erred in principle. (A had won on all substantive issues, although she was still ordered to pay a small sum to I, in respect of which she had failed to make a payment into court or Pt 36 offer. The judge's order that A pay I's costs was varied to no order as to costs.) Auld L.J. formulated the principles in such appeals as follows:

"19. It is, as both counsel have acknowledged, a wide discretion, and the Court of Appeal should only interfere with the judge's exercise of it if he has "exceeded the generous ambit within which reasonable disagreement is possible", a familiar passage now taken from the judgment of Brooke LJ in Tanfern v Cameron-MacDonald (Practice Note) [2000] 1 W.L.R. 1311, at paragraph 32, citing Lord Fraser in G v G (Minors: Custody Appeal) [1985] 1 W.L.R.647, 652."

Auld L.J. also expressed agreement with the formulation of Sir Murray Stuart Smith in Adamson v Halifax Plc [2002] EWCA Civ 1134 at [16]; [2003] 1 W.L.R. 60. In Carlisle & Cumbria United Independent Supporters' Society Ltd v CUFC Holdings Ltd [2010] EWCA Civ 463 the Court of Appeal varied a costs order because the judge had erred in principle, namely by drawing inferences which were not open to him from a Tomlin order.

An appeal court will also interfere with a costs order, if the lower court has failed to apply one or more of the rules in Pt 44 correctly: see e.g. Winter v Winter CAT, November 10, 2000.

The position in relation to appeals in category (ii) is as follows. If the assessment of costs was carried out by an authorised court officer, then the appeal against his decision is not subject to Pt 52: see r.52.1(2). An appeal against the detailed assessment of costs made by an authorised court officer lies to a costs judge, and permission is not required for such an appeal. The rules and procedures governing these appeals are set out in CPR rr.47.20 to 47.23 and in the practice directions supplementing those rules. (These provisions are discussed in the commentary following rr.47.20 to 47.23.) On the other hand, if the detailed assessment of costs is made by a costs judge or a district judge, then any appeal from his decision falls under the regime of Pt 52 and permission to appeal is required. An appeal from a costs judge lies to a High Court judge. An appeal from a district judge lies to a circuit judge (in the county court) or to a High Court judge (in the High Court). In cases of sufficient importance a costs judge may direct (subject to the restrictions in r.52.14) that the first appeal should be heard by the Court of Appeal. Before taking this course, however, the costs judge will need to see detailed grounds of appeal and will require demonstration that those grounds raise matters of principle suitable for consideration by the Court of Appeal: see Sharratt v London Central Bus Company [2004] EWCA Civ 575 at [46].

[The Mould]

An appeal from an authorised court officer to a costs judge is a complete rehearing. An appeal from a costs judge or a district judge to a High Court judge or a circuit judge is not a complete rehearing. For the extent to which an appeal court will interfere with the decision of a costs judge or a district judge in relation to the detailed assessment of costs, see Hornsby v Clark Kenneth Leventhal [2000] 4 All E.R. 567 at 570j–571f. It should be noted that where a costs judge hears an appeal against the detailed assessment of costs made by an authorised court officer, any appeal against that judge's decision is treated as a "first appeal", not a "second appeal": see art.5(a) of the Destination Order.

In proceedings concerning the detailed assessment of costs second appeals to the Court of Appeal are permitted, subject to the restrictions contained in s.55(1) of the Access to Justice Act 1999 [>>Text] and CPR r.52.13. (These restrictions are discussed in the commentary following r.52.13.) Hollins v Russell [2003] EWCA Civ 718; [2003] 1 W.L.R. 248 provides an example of assessment proceedings which raised issues of principle and were permitted to proceed to the Court of Appeal.

For a fuller and more comprehensive discussion of costs appeals, practitioners are referred to Ch.9 of Civil Costs by Senior Costs Judge P.T. Hurst, 4th edn (London: Sweet & Maxwell, 2007).

Rule 52.2 Parties to comply with Practice Directions 52A to 52E

52.2 †

All parties to an appeal must comply with Practice Directions 52A to 52E.

Parties to comply with Practice Directions 52A to 52E

52.2.1 Part 52 is supplemented by five Practice Directions, PD 52A to PD 52E. They were published in TSO CPR Update 59 (September 2012) and came into effect on October 1, 2012 (previously, Pt 52 had been supplemented by a single Practice Direction); see para.52APD.1 et seq below. PD 52A contains general provisions, and PD 52B to PD 52C deal with, respectively, appeals in the county courts and the High Court, and appeals in the Court of Appeal. Provisions as to statutory appeals and appeals subject to special provision are in PD 52D, and as to appeals by way of case stated, in PD 52E.

The use of practice directions in this new form is discussed by J.A. Jolowicz in "Practice Directions and Civil Procedure Rules" [2000] C.L.J. 53. For the first time practice directions have a statutory basis, namely the Civil Procedure Act 1997 [>>Text]: see s.1(2), s.5 and Sch.1 [>>Text] (Vol.2, Section 9A). Practice directions either add detail to the rules or, in some cases, contain free-standing provisions which might have appeared (but did not appear) in the rules. Practice directions can be amended more easily than the rules. However, no doubt the cautionary words of Professor Jolowicz will be borne in mind:

"Practice directions should not be used as a cheap and easily amended form of legislation on matters for which proper legislation under the eye of Parliament is more appropriate."

The proper boundaries of practice directions have been recognised by the Court of Appeal on more than one occasion. See Leigh v Michelin Tyre plc [2003] EWCA Civ 1766 at [19]–[20] and the passages there cited. Practice directions were described as "at best a weak aid to the construction of the rules". In KU v Liverpool City Council [2005] EWCA Civ 475 at [48] Brooke L.J. stated that practice directions provide invaluable guidance on matters of practice, but in so far as they contain statements of law which are wrong they carry no authority at all.

Rule 52.3 Permission

52.3 †

(1) An appellant or respondent requires permission to appeal—

(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against—

(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section 25 of the Children Act 1989; or

(b) as provided by Practice Direction 52.

(Other enactments may provide that permission is required for particular appeals.)

(2) An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

(Rule 52.4 sets out the time limits for filing an appellant's notice at the appeal court. Rule 52.5 sets out the time limits for filing a respondent's notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice (see rules 52.4(1) and 52.5(3).)

(Rule 52.13(1) provides that permission is required from the Court of Appeal for all appeals to that court from a decision of a county court or the High Court which was itself made on appeal.)

(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.

(4) Subject to paragraph (4A), where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.

(4A)

(a) Where a judge of the Court of Appeal or of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without a hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at a hearing.

(b) For the purposes of subparagraph (a) "Specialist Circuit Judge" means a patents county court judge and any circuit judge in any county court nominated to hear cases in the Mercantile, Chancery or Technology and Construction Court lists.

(4B) Rule 3.3(5) will not apply to an order that the person seeking permission may not request the decision to be reconsidered at a hearing made under paragraph (4A).

(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.

(6) Permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

(7) An order giving permission may—

(a) limit the issues to be heard; and

(b) be made subject to conditions.

(Rule 3.1(3) also provides that the court may make an order subject to conditions.)

(Rule 25.15 provides for the court to order security for costs of an appeal.)

Requirement for permission

52.3.1 A party requires permission to appeal against a county court or High Court decision, unless the order complained of is a committal order, a refusal to grant habeas corpus or a secure accommodation order under s.25 of the Children Act 1989: see r.52.3(1)(a). In relation to committal orders (r.52.3 (1)(a)(i)), only the contemnor is exempted from the requirement to seek permission to appeal: see L.B. Barnet v Hurst [2002] EWCA Civ 1009; [2003] 1 W.L.R. 722; Kynaston v Carroll [2004] EWCA Civ 1434; Poole BC v Hambridge [2007] EWCA Civ 990 (disapproving Wood v Collins [2006] EWCA Civ 743). There is a distinction between an individual and a corporate entity, because the latter cannot be committed to prison for contempt. Thus in Masri v Consolidated Contractors International Co SAL (No 3) [2011] EWCA Civ 898, [2012] 1 W.L.R. 223, CA, the Court of Appeal upheld the commercial court judge's decision to grant a company permission to appeal against his order that the company was in contempt of court for failing to comply with court orders, but subject to onerous conditions. The Court of Appeal said that, because a company could not be sent to prison for contempt, an appeal against a decision that they were in contempt was not an appeal against "a committal order" and an appeal could thus only be made with permission.

Other exceptions to the permission requirement are discussed in Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 W.L.R. 1311 at paras 24–26. The justification for this almost universal requirement for permission is to be found in Ch.3 of the Bowman report. The anomalies in the old rules are swept away. Unmeritorious appeals are filtered out at an early stage, thus protecting both parties from unnecessary costs. Also a convenient opportunity is provided for case management at an early stage.

Rule 52.3(1)(b) allows further categories of appeal requiring permission to be specified by practice direction supplementing Pt 52. At the moment no such categories are specified.

Appeals in insolvency proceedings fall under a different regime (see Pt 4, para.199 of the Practice Direction—Insolvency Proceedings).

It was held in Re MB (a patient) [2005] EWCA Civ 1293; [2006] 1 W.L.R. 287 that a judge exercising jurisdiction under Pt 7 of the Mental Health Act 1983 fell outside the ambit of r.52.3(1). Accordingly permission was not required for an appeal against the decision of such a judge.

Appeals in contempt proceedings

52.3.2 The possible routes of appeal against orders made in contempt proceedings have been outlined above in the commentary following r.52.1. If a judge makes a committal order in contempt proceedings, then no permission is required to appeal against that order: see r.52.3(1)(a)(i). If a judge makes any other form of order in contempt proceedings (e.g. an order that the defendant pay the claimant's costs), that is not a "committal order" and permission to appeal is required: see Government of Sierra Leone v Davenport [2002] EWCA Civ 230 and L.B. Barnet v Hurst [2002] EWCA Civ 1009 at [25]–[27]; [2003] 1 W.L.R. 722. Corporate entities cannot be committed to prison for contempt. An appeal to the Court of Appeal by a company against a decision that they were in contempt is not an appeal against "a committal order" within r.52.3(1)(a)(i) and therefore such appeal may be made only with permission Masri v Consolidated Contractors International Co SAL (No 3) [2011] EWCA Civ 898, [2012] 1 W.L.R. 223, CA.

If a circuit judge, on appeal, upholds a committal order made by a district judge, then any appeal from the circuit judge is a second appeal. Thus it is caught by art.5 of the Destination Order and CPR r.52.13. Permission is always required for such an appeal. See L.B. Barnet v Hurst [2002] EWCA Civ 1009 at [29]–[30]; [2003] 1 W.L.R. 722.

See further paras 52.1.2 above and 52.4.3 below, and Vol.2 para.3C–37.

Statutory appeals

52.3.3 Practice Direction 52D applies to all "statutory appeals", and to other appeals "which are subject to special provision" (but not to appeals by way of case stated, as to which see Practice Direction 52E). Nothing in PD 52D imposes a requirement that permission to appeal is required for all statutory appeals to which that Practice Direction applies. (A submission to the effect that such permission was required, based on the terms of specific directions supplementing Pt 52 before their revision in 2013, was rejected in Colley v Council for Licensed Conveyancers [2001] EWCA Civ 1137; [2002] 1 W.L.R. 160, CA.)

When and where should the application for permission be made?

52.3.4 An application for permission should be made to the lower court at the hearing at which the decision to be appealed against is made. If no such application is made or if the lower court refuses permission, then the application for permission may be made to the appeal court in the appeal notice. See r.52.3(2) and (3) and para.4.1 of Practice Direction 52A

The language of r.52.3(2) (note the word "or") and of para.4.1 of PD 52A (note the word "may", rather than "shall" or "must") indicates that a party, who fails to apply for permission to the lower court but goes directly to the appeal court, suffers no sanction. This situation may arise where a party has a change of heart or a change of advice after the hearing at which they have been unsuccessful.

Despite the lack of compulsion, a litigant with arguable grounds for appeal would generally be well advised to apply for permission to the lower court at the time of judgment for five reasons:

(a) The judge below is fully seized of the matter and so the application will take minimal time. Indeed the judge may have already decided that the case raises questions fit for appeal.

(b) An application at this stage involves neither party in additional costs.

© No harm is done if the application fails. The litigant enjoys two bites at the cherry.

(d) If the application succeeds and the litigant subsequently decides to appeal, they avoid the expensive and time-consuming permission stage in the appeal court.

(e) No harm is done if the application succeeds, but the litigant subsequently decides not to appeal.

It should be noted that the guidance in this paragraph was firmly endorsed by the Court of Appeal in T (A Child) [2002] EWCA Civ 1736 at [12]–[13].

If the unsuccessful party requires further time before making its application to the lower court for permission to appeal, the court may adjourn the hearing for that purpose: see para.4.1(a) of Practice Direction 52A.

A more difficult question is whether the lower court has power (in appropriate circumstances) to order such an adjournment retrospectively—for example, where the unsuccessful party decides to appeal a day or two later and costs may be saved by going back to the original judge. The opening words of para.4.3B ("Where no application for permission to appeal has been made") suggest that there may be such a power, but the latter part of the paragraph suggests otherwise. There are two first instance decisions on this question, but unfortunately they come to opposite conclusions: see Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2228 (Comm) and Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC). Balmoral was not cited to the judge in the second case, so the two decisions were reached in isolation.

If the judge hands down a reserved judgment in the absence of the parties and is aware that one party wishes to appeal, they should formally adjourn the hearing to enable that party to apply for permission to appeal: Jackson v Marina Homes Ltd [2007] EWCA Civ 1404 at [8].

If one ground of appeal is that the judge has failed to deal with a particular point, the judge should be given an opportunity to deal with that point at the hearing before the application for permission is made: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 W.L.R. 2409 at [25] and In the matter of S (Children) [2007] EWCA Civ 694 at [23]–[25]. These authorities are discussed further in the commentary following r.52.11.

Duty of the lower court when an application for permission to appeal is made

52.3.5 Where a party applies to the lower court for permission to appeal against a decision in accordance with r.52.3(2)(a), the judge must state (a) whether the judgment or order is final, (b) whether an appeal lies and, if so, to which court, © whether the lower court gives permission to appeal, and (d) if not, the appropriate appeal court to which any further application may be made. CPR r.40.2 (4) requires these same matters to be stated in the order which the court draws up following the hearing.

Where no application for permission is made on the occasion when judgment is given, but the unsuccessful party requests further time to make such an application, the lower court may adjourn the hearing to give that party the opportunity to do so. See para.4.1(a) of Practice Direction 52A.

If the lower court purports to grant permission outside the time limit for appealing, then (absent any extension of time) such "permission" is ineffective: Lloyd Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162.

How the appeal court deals with such applications

52.3.6 The appeal court can, and in many cases will, determine applications for permission on paper. See para.7.1 of Practice Direction 52B and para.15 of Practice Direction 52C. However, cases of particular difficulty or cases raising special problems are generally referred by the appeal court for oral hearing, without any intermediate consideration on paper. Likewise, cases in which it is thought likely that the appellant would in any event exercise their right to an oral hearing (as to which see the following paragraph) are generally listed for oral hearing at the outset. If permission is granted on paper, then the appeal will proceed to the next stage (see para.4.12 of the Practice Direction), save in those rare cases where an application to set aside permission is appropriate under r.52.9.

If the appeal court refuses permission on paper, then (save in respect of appeals to the Court of Appeal which are totally without merit) the appellant is entitled to have the matter reconsidered at an oral hearing. See r.52.3(4) and para.7.3 of Practice Direction 52B. The request for such an oral hearing must be filed within seven days after service of the notice that permission has been refused. See r.52.3(5) and para.7.4 of PD 52B. However, the appeal court has power under r.3.1 (2)(a) to extend the 7 day period for requesting reconsideration at an oral hearing: see Slot v Isaac [2002]

[The Mould]

EWCA Civ 481 at [15]. The procedure to be followed after the appellant has requested an oral hearing is set out in paras 8.1 to 8.3 of PD 52B.

In Shlaimoun v Mining Technologies International Inc [2012] EWCA Civ 772, May 29, 2012, CA, unrep., Lord Neuberger MR stated (1) that normally it will be undesirable for a single lord justice dealing with an application for permission to appeal to the Court of Appeal, instead of granting or refusing the application, to order that the application should be heard by the Court on the basis that the appeal should immediately follow if the Court grants permission, and (2) that, in the absence of special circumstances, it is better that the judge should either give permission to appeal (so that the parties know where they stand and there is an appeal on foot), or direct a brief hearing, at which the respondent (or the respondent's legal representatives) can make oral submissions or send brief written submissions, to decide whether permission to appeal should be granted. Although there are difficulties with "adjourn into court" orders that arise in appeals to the Court of Appeal that might not arise in other procedural contexts where permission to appeal is required, the views expressed by the Master of the Rolls, may have a wider relevance.

Where a respondent to an appeal or cross-appeal attends the hearing of an application for permission to appeal, costs will not be awarded to the respondent except in the circumstances referred to in para.8.1 of Practice Direction 52B. Those circumstances include where the court has requested the respondent's attendance. (In Practice Direction 52C (which applies to appeals to the Court of Appeal) para.19 states that, unless the court otherwise directs, a respondent need not take any action when served with an appellant's notice until notified that permission to appeal has been granted.) Where a respondent is not requested to attend and does not attend a permission hearing, and the appeal court grants permission at that hearing, it would be a serious procedural irregularity for the court to then proceed immediately to deal with the substantive appeal; see Howard v Stanton [2011] EWCA Civ 1481, November 16, 2011, CA, unrep. (where, in these circumstances, the Court of Appeal granted the respondent permission to make a second appeal, and allowed and remitted the appeal).

The overall effect of these provisions is that (save in respect of appeals to the Court of Appeal which are totally without merit) every disappointed litigant at first instance can, one way or another, achieve at least a brief hearing in the appeal court, so that the main thrust of their complaint can be ventilated orally.

In the case of appeals to the Court of Appeal which are totally without merit, the lord justice refusing permission on paper may make an order debarring the applicant from requesting reconsideration at an oral hearing.

Furthermore the Court of Appeal will refuse to entertain an application for permission to appeal (and will not list such an application for hearing) if it is obvious that the court has no jurisdiction. See Jolly v Jay [2002] EWCA Civ 277 at [19] and Bulled v Kayat [2002] EWCA Civ 804 at [9]–[11].

Any decision refusing permission to appeal must be adequately reasoned, in order to comply with art.6 of the European Convention on Human Rights. Thus an unparticularised assertion that the appellant has not complied with relevant provisions in practice directions supplementing Pt 52 is insufficient. See Hyams v Plender [2001] 1 W.L.R. 32 at para.17.

The basic criteria for granting permission

52.3.7 Permission to appeal may be given only where (a) the appeal appears to have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard. See r.52.3(6). The word "may" in r.52.3(6) indicates that the court has a discretion. This discretion must be exercised in accordance with the overriding objective (see r.1.1).

The first ground ("real prospect of success") presents no conceptual problems. It is precisely the same test as that which the courts apply when considering summary judgment: see r.24.2. The rationale is the same. If a claim or defence has no real prospect of success, the court will prevent the litigant from pursuing it. Likewise if an appeal has no real prospect of success, the court will prevent the litigant from pursuing it. The main practical difference is that (for obvious reasons) more appeals are weeded out by this process, than first instance claims or defences.

In Swain v Hillman [2001] 1 All E.R. 91 Lord Woolf M.R. discussed the meaning of "real prospect of succeeding" in r.24.2. The court had to consider whether there was a realistic, as opposed to a fanciful, prospect of success. In Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 W.L.R. 1311 at para.21, Brooke L.J. cited Swain v Hillman and stated that the same approach should be adopted in relation to r.52.3(6)(a).

The second ground ("some other compelling reason") is more difficult. On a semantic analysis, the word "or" is disjunctive. See Morris v Bank of India [2004] EWCA Civ 1286 at [9]–[10]. Ground (b) often (but not invariably) arises for consideration if the proposed appeal has no real prospect of succeeding. But what "compelling reason" can there be for allowing a litigant, who has lost at first instance, to throw away yet more costs on an appeal which has no real prospect of success? Or for subjecting a successful litigant to the stress and irrecoverable costs of defending a hopeless appeal?

The origins of ground (b) can be traced to paragraphs 37–38 of Ch.3 of the Bowman Report, which quoted with approval the following passage from the judgment of the Court of Appeal in Smith v Cosworth Casting Processes Ltd [1997] 1 W.L.R. 1538:

"There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying."

The theoretical difficulty with the passage just quoted is that if the case raises an issue where the law requires clarifying, then by definition the appeal does have a real prospect of success. Such clarification might operate in favour of the appellant. If the "clarification" cannot affect the outcome of the appeal, then in many cases it may be inappropriate to grant permission.

Experience has shown, however, that ground (b) constitutes a valuable reserve power to permit certain appeals to proceed to the Court of Appeal, even though it is not possible to say that there is a "real prospect of success". In one case, for example, a major developer (which was well able to bear both sides' costs) was permitted to pursue an appeal with slender prospects of success, because the appeal was likely to result in the elucidation of an important point of planning law. In some instances the appellant (e.g. a public authority) is pursuing its appeal, in order to obtain an authoritative decision on a point of general application. In such cases the Court of Appeal may grant permission to appeal but on condition that the appellant pays both parties' costs in any event.

In cases where the current appeal is hopeless because of binding authority, but a further appeal to the Supreme Court might succeed, then special considerations arise. The appellant has, ultimately, a real prospect of success. It may be appropriate for the Court of Appeal to grant permission, but to dismiss the appeal immediately. This course spares the parties unnecessary costs and leaves it open to the appellant to seek permission to appeal to the Supreme Court. The Court of Appeal, in effect, took this course in Beedell v West Ferry Printers Ltd [2001] EWCA Civ 400; The Times, April 5, 2001.

In relation to junior appellate courts, the position would appear to be different. It is difficult to conceive of any reason (compelling or otherwise) why an appeal should be allowed to proceed to the junior appellate court, if it has no real prospect of success. Even if the unpromising appeal raises questions of public interest or general policy, the junior appellate court is hardly the forum to address such matters. Accordingly, in relation to appeals to junior appellate courts (where no question of transfer under r.52.14 arises), it is suggested that ground (a) alone is relevant, namely "real prospect of success".

For the meaning of the phrase "some other compelling reason" in the context of second appeals, see the commentary following rule 52.13 below. In Shared Network Services Ltd v Nextiraone UK Ltd [2012] EWCA Civ 1171, permission to appeal was granted, not because there was a real prospect of success, but because there was a need for the resolution of a conflict in first instance authority on exclusion clauses, and therefore a compelling reason for granting permission. Lewison L.J. held that, whilst such clarification was in the public interest, it should not take place at the respondent's expense, and ordered the appellant to pay security for the respondent's costs.

The effect of refusal of permission

52.3.8 Refusal of permission is, effectively, the end of the road: see Moyse v Regal Partnerships Ltd [2004] EWCA Civ 1269 at [31]. If both the lower court and the appeal court refuse permission to appeal, it is not possible to appeal to a higher court (e.g. the Court of Appeal) against that refusal of permission. This is the effect of s.54(4) of the Access to Justice Act 1999 [>>Text]. The effects of s.54(4) [>>Text] cannot, save in exceptional circumstances, be circumvented by an application to the Administrative Court for judicial review of the decision of a junior appellate court, refusing permission to appeal: see R. (Mahon) v Taunton County Court [2001] EWHC Admin 1078; [2002] A.C.D. 192; R. (Messer) v Cambridge County Court [2002] EWCA Civ 1355; Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738 at [49]–[56]; [2003] 1 W.L.R. 475. Judicial review of a junior appellate court's refusal of permission to appeal is only available where (a) there has been some fundamental departure from the correct procedures or (b) the judge refusing permission to appeal has acted in complete disregard of their duties: see Gregory v Turner [2003] EWCA Civ 183 at [38]–[45]; [2003] 1 W.L.R. 1149.

The Court of Appeal, whose jurisdiction is wholly statutory, has no inherent jurisdiction to hear an appeal against the decision of a junior appellate court refusing permission to appeal (unless it can truly be said that there was no decision at all). See Riniker v University College London [2001] 1 W.L.R. 13 and Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R. 17 at para.20. The only exception to this principle of finality is that in extremely rare cases the Court of Appeal or the High Court pursuant to r.52.17 may re-open an appeal after it has refused permission.

If, at the same time as refusing permission to appeal, a junior appellate court makes an order for costs or some other ancillary order, then there is a right of appeal against that order. If the order is made by a circuit judge, then such an appeal lies to a High Court judge as a "first appeal". See Jolly v Jay [2002] EWCA Civ 277 at [51]–[52]; Moyse v Regal Mortgages Ltd Partnership [2004] EWCA Civ 1269 at [23].

Application for permission to appeal "totally without merit"–reconsideration

52.3.8.1 Sub-rules (4A) and (4B) were originally added to r.52.3 by the Civil Procedure (Amendment) Rules 2006 (SI 2006/1689) for the purpose of enabling the Court of Appeal to make an order to the effect that a person refused permission to appeal may not request the decision to be reconsidered at a hearing. Such an order may be made if the appeal court considers that the application is "totally without merit". Sub-rule (4A) was significantly modified by the Civil Procedure (Amendment No.2) Rules 2012 (SI 2012/2208) for the purpose of extending the powers of the Court of Appeal in this respect to judges sitting at other levels in the appellate hierarchy and dealing with applications for permission to appeal. In this way, High Court Judges, Designated Civil Judges, and some Specialist Civil Judges have the jurisdiction to refuse an application for permission to appeal on the papers, and if they conclude that the appeal is "totally without merit", there is no right to a further oral hearing.

It should be noted that, if an appeal court (whether the Court of Appeal or some other), refuses an application for permission to appeal, and it considers that the application is totally without merit, then r.52.10(5) takes effect. In those circumstances, the appeal court must record the fact that it considers the application to be totally without merit and must consider whether it is appropriate to make a civil restraint order (r.52.10(6)). See also Practice Direction 3C (Civil Restraint Orders).

Permission will be granted more sparingly to appeal against case management decisions

52.3.9 This aspect is dealt with in para.4.6 of Practice Direction 52A. The court considering a permission application must take into account the significance of the appeal, the likely costs, the delay or disruption which would be entailed and whether the issue could more conveniently be determined at or after trial. The justification of this approach is to be found in para.38 of Ch.3 of the Bowman Report. The review team recommended "that an additional element is required in the case of interlocutory appeals, which can cause substantial delays in the progress of cases at first instance." The review team went on to recommend that a balance be struck in determining whether appeals should be allowed at that stage.

The court should also bear in mind at the permission stage the high threshold which an appellant seeking to overturn a case management decision within the judge's discretion must cross: see Royal & Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at [38]; Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [33].

Permission will be granted more sparingly for second appeals (and only by the Court of Appeal)

52.3.10 A decision of the High Court or of a county court made on the hearing of an appeal may be the subject of a further appeal, but this is subject to restrictions. In particular, the Court of Appeal is the only court that can hear a second appeal. Only the Court of Appeal can grant permission for a second appeal. See para.4.7 of Practice Direction 52A.

The circumstances in which the Court of Appeal will grant permission for a second appeal are restricted both by statute and by the CPR. See the commentary following r.52.13 below.

Permission will be granted more sparingly for appeals from specialist tribunals

52.3.11 In Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All E.R. 279 the Court of Appeal considered the criteria which should be applied in relation to applications for permission to appeal from the Social Security Commissioner. Hale L.J., giving the principal judgment, said that although s.55 (1) of the Access to Justice Act 1999 [>>Text] did not in terms apply, many of the policy considerations underlying that section were applicable.

"Firstly, this is a highly specialised area of law which many lawyers—indeed, I would suspect most lawyers—rarely encounter in practice. Secondly, there is an independent two-tier appellate structure. ... After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners." (Paragraph 15)

Hale L.J. accepted that such appeal structures should have a link to the ordinary court system. Nevertheless the courts "should approach such cases with an appropriate degree of caution". The Social Security Commissioners will have a more comprehensive understanding of social security principles than the courts. Hale L.J. added that, subject to the qualifications mentioned in para.18, her comments were also relevant to other similar appeal structures. Although the principles stated by Hale L.J. in Cooke remain valid, it should be noted that the Social Security Commissioners no longer exist as a separate body. The former jurisdiction of the Social Security Commissioners is now exercised by the Administrative Appeals Chamber of the Upper Tribunal.

In Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] EWCA Civ 976; [2002] 4 All E.R. 376 the Court of Appeal refused the claimant permission to appeal against a decision of the Competition Commission Appeal Tribunal. Buxton L.J. said that the Tribunal's findings (concerning abusive pricing policy and abnormal conduct) did not involve points of law and could not be reviewed in the Court of Appeal. He added:

"But even if we did have authority to review such findings, as the conclusion of an expert and specialist tribunal, specifically constituted by Parliament to make judgments in an area in which judges have no expertise, they fall exactly into the category identified by Hale L.J. in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, as an area which this court would be very slow indeed to enter."

See also Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16.

In relation to appeals from the former Asylum and Immigration Tribunal, the approach of the Court of Appeal was as set out in SSHD v Akaeke [2005] EWCA Civ 947 at [28]–[30] and in R. (Iran) v SSHD [2005] EWCA Civ 982 at [92]–[93]. The Court of Appeal would be slow to grant permission to appeal from the Asylum and Immigration Tribunal for broadly the same reasons that it was slow to grant permission to appeal from other specialist tribunals. The Asylum and Immigration Tribunal has now been replaced by the Immigration and Asylum Chamber of the Upper Tribunal.

In relation to appeals from the Lands Tribunal, the Court of Appeal adopted a broadly similar approach to that set out by Hale L.J. in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All E.R. 279. However, the Court of Appeal was less reluctant to grant permission to appeal where the question raised was one of construction not requiring the specialist expertise of the Lands Tribunal. See Cawsand Fort Management Co Ltd v Stafford [2007] EWCA Civ 231. (The subsequent appeal in that case was unsuccessful: see Cawsand Fort Management Co Ltd v Stafford [2007] EWCA Civ 1187; [2008] 1 W.L.R. 371.) The Lands Tribunal has now been replaced by the Lands Chamber of the Upper Tribunal.

Permission will be granted more sparingly for appeals on questions of fact from the Technology and Construction Court

52.3.12 Under the former Rules of the Supreme Court there was a more restrictive regime for appeals from decisions of official referees than for appeals from decision of other courts. The rationale was explained by Lord Bingham M.R. in Virgin Management Ltd v De Morgan Group (1994) 68 B.L.R. 26 at 33:

"The reason why rights of appeal against factual decisions of official referees have been subject to special restrictions and conditions is obvious. Official referees were originally appointed to conduct protracted and painstaking enquiries into complex and detailed factual issues. The investigation of multifarious claims and cross-claims arising out of building contracts is one example...It was clearly felt that the factual minutiae with which official referees were required to deal were not suitable matters for reconsideration on appeal. It was better that, for better or worse, their decisions on such matters should stand, rather as if they were arbitrators. If personal or professional reputations were at stake, that was a different matter."

This more restrictive approach to factual appeals from TCC judges has survived the introduction of the CPR. In Skanska Construction UK Ltd v Egger (Barony) Ltd [2002] EWCA Civ 1914 Lawrence Collins J. (with whom Thorpe and Latham L.JJ. agreed) said:

"But the decisions of the Technology and Construction Court have special characteristics which affect the readiness of the Court of Appeal to reconsider them on appeal. First, the findings of fact often fall within an area of specialist expertise, where the evidence is of a technical nature and given by experienced experts, and which is evidence of a kind which judges of the Technology and Construction Court are particularly well placed to assess. Second, the conclusions of fact will frequently involve an assessment or evaluation of a number of different factors which have to be weighed against each other, which is often a matter of degree. Third, the decisions may deal with factual minutiae not easily susceptible of reconsideration on appeal."

The Court of Appeal endorsed the above approach in Yorkshire Water Services v Taylor Woodrow Construction Northern Ltd [2005] EWCA Civ 894; [2005] B.L.R. 395. The Court of Appeal dismissed in robust terms an application for leave to appeal from the decision of Forbes J. (the judge in charge of the Technology and Construction Court) in a highly complex action concerning claims for defects, delay and loss and expense. May L.J., delivering the judgment of the court, said at para.27:

"I do not consider that the advent of Part 52 of the CPR has altered this court's approach to applications for permission to appeal from factual decisions of TCC judges...The policy has been somewhat relaxed, and findings of fact such as Lord Bingham described on page 35 in Virgin Management are not no-go areas. The burden on a prospective appellant in these areas is nevertheless hard to discharge. In my view, the more complicated and technical the facts, the harder generally speaking is the burden. The reason again is obvious. The more complicated and technical the facts, the longer and more expensive would be this court's enquiry, whether by review or re-hearing, and the more disproportionate would be the whole exercise for the parties and the court alike..."

Permission to appeal may be granted more readily in patent cases

52.3.13 In Pozzoli SPA v BDMO SA [2007] EWCA Civ 588 the Court of Appeal granted permission to appeal against a decision that Pozzoli's patent was invalid, but went on to dismiss the appeal. The Court of Appeal held that art.32 of the TRIPS Agreement (an international treaty) did not compel the grant of permission to appeal in any case where a patent had been declared invalid. At [10] Jacob L.J. (with whom Mummery and Keene L.JJ. agreed) stated:

"I would add this about permission to appeal in patent cases generally. Unless the case is very clear and can be understood sufficiently readily in an hour or so, the better course is normally for permission to be granted by the trial judge. For, unlike the trial judge, the Court of Appeal judge(s) who have to decide whether permission should be granted (where the trial judge has refused it) will not be immersed in the technology and evidence in the same way as the trial judge. Faced with but an incomplete understanding and a plausible skeleton argument seeking permission, the Court of Appeal will generally be likely to grant permission, even if it later discerns that the case is indeed clear."

At first blush, the difference between the Court of Appeal's approach to (a) appeals in patent cases and (b) appeals in other cases involving specialist or technical expertise may seem surprising. However, this approach has been authoritatively laid down and its rationale explained.

Limited permission

52.3.14 An order giving permission to appeal may limit the issues to be heard: see r.52.3(7)(a). This power will be exercised where the appellant includes some hopeless points among their grounds of appeal. It is in the interests of all parties (including the appellant) that these be weeded out at the start. In Practice Direction 52C (which applies to appeals to the Court of Appeal) para.18(1) states that where limited permission is granted, the court will either (a) refuse permission on any remaining issues or (b) reserve the question of permission on any remaining issues to the court hearing the appeal. In the latter event, the procedure to be followed thereafter is set out in para.18(2) of that Practice Direction.

If the appeal court refuses permission to appeal on the remaining issues after consideration on paper, then the appellant can renew their application for permission in respect of those issues at an oral hearing, in accordance with para.18(3) of Practice Direction 52C. On the other hand, if the appeal court refuses permission to appeal on the remaining issues at or after an oral hearing, then the appellant cannot renew their application for permission in respect of those issues at the hearing of the appeal. This is the consequence of s.54(4) of the Access to Justice Act 1999 [>>Text]. See Fieldman v Markovic [2001] C.P. Rep. 119; James v Baily Gibson & Co [2002] EWCA Civ 1690.

Conditional permission

52.3.15 An order giving permission to appeal may be made subject to conditions: see r.52.3(7)(b). The power is expressed broadly and it may be used in order to do justice between the parties. In Morris v Wrexham CBC [2001] EWHC Admin 697 the appellant wished to appeal in order to obtain clarification of the law. Leave to appeal was granted on condition that the appellant paid the respondent's costs of the appeal in any event. In Lloyd Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162 at [26] the Court of Appeal granted permission to appeal (coupled with a five months extension of time) on condition that the appellant should not be entitled to the costs of the appeal, even if it succeeded. One reason for imposing this condition was that the appellant was a large corporation, which had incurred substantial costs on the appeal because the matter was important to its business, whereas the respondents were a group of individual objectors.

In Ungi v Liverpool City Council [2004] EWCA Civ 1617 the defendant wished to appeal on grounds not argued (or not fully argued) below. The proposed appeal raised important points of practice, which called out for the guidance of the Court of Appeal. The court permitted the appeal to proceed, but on condition that (a) the orders for costs in the court below should remain undisturbed and (b) the appellant should pay both parties' costs of the appeal.

Where the proposed appellant has failed to comply with orders of the court below, it may be appropriate to make such compliance a condition of permission to appeal. In Day's Medical Aids Ltd v Pihsiang Machinery Manufacturing Co Ltd [2004] EWCA Civ 993 there was no stay of execution pending the defendant's appeal, but the defendant (a Taiwanese company) had failed to comply with the judgment. The Court of Appeal made it a condition of permission to appeal that the defendant pay to the claimants the judgment sum plus costs and interest. In reaching this decision Dyson L.J. proceeded on the basis that the court should only impose conditions on permission to appeal where there was a compelling reason to do so (see para.5). He also accepted that there was no general rule that compliance with the judgment below should be a condition of permission to appeal (see para.25). The decision was based upon the particular circumstances of that case.

The appeal court has power to vary the conditions attached to permission to appeal: see r.52.9(1)© and the commentary following that provision. This includes the power to order security for the respondent's costs in circumstances where the application for permission to appeal has been 'rolled up' with the appeal itself: see Shlaimoun v Mining Technologies International Inc [2012] EWCA Civ 772.

Advocacy at permission hearing

52.3.16 The oral hearing of an application for permission will be of limited duration. Also it will often be attended by one party only. Although the judge or lord justice will have pre-read the relevant documents, they are unlikely to be as familiar with the details of the case as the judge below or the advocates who appeared below. The advocate appearing at the permission hearing should use their limited time wisely, focusing on their best points clearly and fairly. Any necessary exposition should be succinct and to the point. Also, assuming that the other parties are absent, the advocate must remember their duty to draw attention to any adverse authorities or factors. The rules governing permission to appeal have the potential to protect litigants from enormous cost and delay. If they are to achieve this objective without causing injustice, there must be both careful preparation by the court and high standards of preparation and presentation by the advocates.

The appellant's advocate should ensure that para.16(1) of Practice Direction 52C is complied with. In particular, at least four days before the hearing they must lodge a brief written statement identifying (a) the points which they propose to raise and (b) why they contend that permission should be granted, despite the reasons previously given for refusing permission.

The role of respondents in relation to permission applications

52.3.17 In Jolly v Jay [2002] EWCA Civ 277 the Court of Appeal gave guidance as to the role of respondents at the permission stage. A respondent should only file submissions at this early stage, if they are addressed to the point that the appeal would not meet the relevant threshold test or tests, or if there is some material inaccuracy in the papers placed before the court (para.44). In general respondents should not make submissions on the merits at the permission stage (para.45). Respondents will not be prejudiced at the appeal itself by such restraint at the permission stage, since this is essentially a "without notice" procedure (para.46).

Where a permission application is to be determined on paper, any submissions from the respondent should be in writing. Even at an oral permission hearing, it may well suffice for the respondent's submissions to be made in writing. See Jolly v Jay [2002] EWCA Civ 277 at [47]. The respondent is unlikely to recover their costs of submitting written submissions or attending an oral hearing at the permission stage, unless such submissions or attendance are specifically requested by the court. Much of the effect of Jolly v Jay is now codified in para.20 of Practice Direction 52C.

If the court requests the respondent's attendance at the permission hearing, then the respondent will receive a copy of the appeal bundle from the appellant: see para.16(3) of Practice Direction 52C.

Position of judge who has initially refused permission on paper

52.3.18 A judge who has initially refused permission to appeal to the Court of Appeal on consideration of the papers is entitled (absent special circumstances) to sit as a member of the court hearing the substantive appeal: see Sengupta v Holmes [2002] EWCA Civ 1104; The Times, August 19, 2002, CA; Dr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97, January 14, 2008, CA, unrep. It is, however, quite often the practice of the Court of Appeal to direct that the lord justice who refused permission on paper should not be a member of the constitution which hears the substantive appeal (where, for example, he expressed his adverse views strongly on paper).

In relation to junior appellate courts, different considerations may arise. On the one hand, it may be thought undesirable that the only judge hearing a substantive appeal is one who has previously expressed the view in writing that the appeal has no real prospect of success. On the other hand, the reasoning in Sengupta v Holmes would seem to be equally applicable to junior appellate courts. Furthermore, in practice, designated civil judges try to deal with CPR appeals themselves, in order to achieve consistency of approach. There would therefore be practical problems if circuit judges were precluded from hearing substantive appeals in cases where they had initially refused permission on paper. There might also be practical problems if High Court judges were precluded from hearing substantive appeals in cases where they had initially refused permission on paper. It is quite often the case on circuit that, owing to pressure of criminal work, only one High Court judge is available to hear civil appeals. See further, Vol.2 para.9A–48 (Judicial bias).

Procedure after permission

52.3.19 Provisions stating the practice to be followed after permission to appeal is granted are set out in Sections 5 to 8 of Practice Direction 52B (which applies to appeals in the county courts and the High Court) and in Sections 5 to 7 of Practice Direction 52D (which applies to appeals to the Court of Appeal).

Change in appellant's case or change in circumstances after grant of permission

52.3.20 Where the appellant's case changes after the grant of permission, the appellant's representatives should write to the appeal court and to the other party, indicating the proposed nature of the changed case. The court should be asked to indicate whether it will deal with the matter at the beginning of the hearing of the appeal or whether it will give directions on an earlier date. After being informed of the respondent's attitude, the court can decide whether to shut out the new grounds or allow them to be argued: see Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465 at [6]–[7]. See also the commentary following r.52.8.

Where there is a material change in circumstances after the grant of permission, which would affect the question of whether permission should have been given, the applicant should inform the court in writing: Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at [49].

If the guidance in this paragraph is not followed, both costs and court time may be wasted, with possible adverse costs orders to follow: see R (a Child) [2010] EWCA Civ 303 at [14]–[16] per Arden L.J.

Time estimates

52.3.21 One of the most important elements of the appeal questionnaire is the estimate of time for the hearing of the appeal, which must be made by the appellant's advocate. The respondent's advocate must consider this estimate. If they take a different view, their own estimate of time must be sent to the court within seven days. See para.24 of Practice Direction 52C. Two general points need to be made about time estimates. First, accurate estimation is crucial to the efficient planning and listing of hearings. Secondly, accurate estimation is sometimes difficult. Not all judges pre-read with equal devotion to detail. Points have a habit of cropping up or fading away at appeals, with the effect of either shortening or elongating the hearing. Despite these handicaps, the opposing advocates must exercise judgment, draw on their own experience and, most importantly, talk to each other about the likely course and length of the hearing. Advocates who make no serious effort to estimate the length of an appeal hearing are in dereliction of their duty to the court.

The effect of a "leapfrog" certificate

52.3.22 Where a judge grants a "leapfrog" certificate under s.12 of the Administration of Justice Act 1969 [>>Text] to any party, that party may apply to the Supreme Court for leave to appeal directly from the High Court to the Supreme Court. Section 13 [>>Text] of the 1969 Act provides that, if the Supreme Court grants such leave, "no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal". Thus any permission to appeal to the Court of Appeal which the judge may have granted is overridden. If, however, the Supreme Court grants permission to appeal subject to conditions and the appellant does not accept those conditions, then their right of appeal to the Court of Appeal revives: R (Jones) v Ceredigion County Council [2007] UKHL 24; [2007] 1 W.L.R. 1400.

[The Mould]

Advocate to the court — role of on appeal

52.3.23 Where there is an appeal in proceedings in which an advocate to the court has participated, the appeal court may be considerably assisted if he also participates in the appeal. However, because an advocate to the court is not a party to proceedings, he is not routinely notified if an appeal is launched. In M v F [2011] EWCA Civ 273, March 17, 2011, C.A ., unrep., Thorpe L.J. stated (at para.24) that, for the purpose of ensuring that the role (if any) of the advocate on an appeal to the Court of Appeal was properly considered, the judge giving directions for an oral hearing or an appeal should give attention to the matter and the advocate should seek directions if nothing has been said by the supervising lord justice. His lordship also expressed the opinion that there should be an obligation on the appellant, when filing the appeal notice, to notify those instructing the advocate.

Appeals and judicial review

52.3.24 The overriding importance of the appeals permission procedure is illustrated by the decision of R (Capewell) v Stoke-on-Trent County Court [2011] EWHC 3851 (Admin), December 14, 2011, unrep. (Beatson J.), a case in which claimant sought judicial review of a circuit judge's decision to refuse him permission to appeal against the striking out of his claim and where it was held that, in the circumstances, there was no basis for a judicial review claim, which was itself a remedy that recognised the need for finality in decisions.

Dispensation of Requirement for Oral Hearing

52.3.25 Whilst a renewed application for permission to appeal will usually be resolved after an oral hearing, it does not always follow that such a hearing is required. In Royds LLP v Pine [2012] EWCA Civ 1734, the Court of Appeal acknowledged that Practice Direction 52 (now superseded), envisaged such a hearing, but held that, where a litigant had a good reason not to attend the hearing, the court had power to dispense with a hearing and deal with the matter by way of a written decision. For this reason, they held that the trial judge had been wrong to make an order, the effect of which was that, unless the application was made orally through counsel at a hearing, it was to be refused.

Rule 52.4 Appellant's notice

52.4 †

(1) Where the appellant seeks permission from the appeal court it must be requested in the appellant's notice.

(2) The appellant must file the appellant's notice at the appeal court within—

(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.

(3) Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant's notice must be served on each respondent—

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

(4) †Where an appellant seeks permission to appeal against a decision to refuse to grant an interim injunction under section 41 of the Policing and Crime Act 2009 the appellant is not required to serve the appellant's notice on the respondent.

Time for filing appellant's notice

52.4.1 The appellant's notice must be filed within 21 days after the date of the decision under appeal, unless the lower court directs a different period. Before r.52.4(2) was amended by the Civil Procedure (Amendment No.4) Rules 2005 (SI 2005/3515) (with effect from April 6, 2006) the period was 14 days. The brevity of the time allowed reflects a clear policy decision in favour of finality. Any party seeking to challenge a judicial decision must move with expedition. In the immediate aftermath of the judgment below both the party and their advisers are fully seized of the case. They can be expected to formulate any grounds of appeal without delay. The background to this rule is set out by Brooke L.J. in Sayers v Clarke Walker [2002] EWCA Civ 645 at [12]–16]; [2002] 1 W.L.R. 3095. The Bowman Report (1997) recommended in respect of appeals to the Court of Appeal that the time limit for appeals against final decisions should be six weeks and that the time limit for appeals against procedural decisions should be seven days (see Ch.7, paras 7 and 8). The Civil Procedure Rule Committee rejected these recommendations. It adopted a uniform time limit of, initially, 14 days only for all appeals, save in respect of judicial review permission appeals, where the time limit is seven days (see r.52.15 below). However, as explained above, the 14 day time limit was subsequently increased by the Civil Procedure Rule Committee to 21 days.

If a party has good reason for seeking a longer period in which to appeal, they should apply to the lower court on the occasion when judgment is given (unless that hearing is adjourned pursuant to para.4.1(a) of Practice Direction 52A). For provisions applicable where a party wishes to apply to the lower court for an extension of time filing an appellant's notice, see Practice Direction 52B para.3). An example of a good reason for seeking a modest extension of time may be that the appellant (through no fault of its own) has an unwieldy decision-making process, such as a board of trustees which needs to be convened. Another example may be that a national holiday period is about to begin. Another example may be that an approved transcript of judgment or a perfected written judgment may reasonably be required before the notice of appeal can be prepared.

An application to the lower court to extend time pursuant to r.52.4(2)(a) may be made on a date after judgment was given, although this course involves additional and avoidable expense. Indeed such an application may even be made after expiry of the 21 day period: see Dalkia Utilities Services plc v Celtech International Ltd (No.2) [2006] EWHC 63_2 (Comm). Although Dalkia was decided under the old regime, when the relevant time limit was 14 days (not 21 days), the statements of principle in paras 5–6 remain valid. Nevertheless, once the appellant's notice has been filed (albeit out of time), the lower court should not exercise its discretion to extend time. The matter should be left for the appeal court to consider in accordance with r.52.6. See Aujla v Sanghera [2004] EWCA Civ 121 at [14]–[21].

If an extension of time is needed beyond the period specified by the lower court (or beyond the 21 day period mentioned in r.52.4(2)(b)), then the appellant should apply to the appeal court. See r.52.6(1). The application must be made in the appellant's notice. See para.3.2 of Practice Direction 52B. The notice should state the reason for the delay and the steps taken prior to the application being made. The respondent has a right to be heard on this application. (If such time extension application is granted without a hearing a respondent wishing to oppose it may apply for a hearing; para.3.3 of Practice Direction 52B.) This perilous course for appellants (which is discussed further in the commentary on r.52.6) emphasises: (a) the importance of complying with time limits in the first place; (b) the wisdom of applying prospectively to the lower court for any extension of time which really is necessary.

It should be noted that specific time limits for particular categories of appeal, whether imposed by statute, rule or practice direction, may override the general 21 day time limit imposed by r.52.4(2): see r.52.1(4). Time limits applicable for statutory appeals, for appeals by way of case stated and for a variety of specific appeals are found in the appropriate places in Practice Direction 52D and Practice Direction 52E.

Statutory time limits for filing notice of appeal

52.4.1.1 The provisions of Pt 52, including r.52.4, are subject to "any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal" ( r.52.1(4)). Practitioners should be alert to the fact that, in relation to certain appeals brought under statute, different time limits to those fixed by r.52.4 may apply. Generally, such statutory variations will be reflected in directions in Section 4 of Practice Direction 52D (Provisions about specific appeals); see, e.g. para.19.1 (appeals against decisions affecting the registration of architects and health care professional professionals), and para.21.1 (appeals under the Extradition Act 2003). It is particularly important that such statutory variations should be noted because, being time limits fixed by statute (and not by rule, practice direction or court order), the court will not have power, unless the statute itself so provides, to extend them under r.3.1(2)(a) and r.52.6; see para.3.1.2 above and para.52.6.4 below.

Date when time starts to run

52.4.2 Time starts to run on the date when the judge below makes their decision, not on the date when the order reflecting that decision is drawn up. See Sayers v Clarke Walker [2002] EWCA Civ 645 at [5]; [2002] 1 W.L.R. 3095. The problems which arise when the judge below (wrongly) dispenses with the formality of handing down judgment are discussed in Owusu v Jackson [2002] EWCA Civ 877 at [24]–[27].

The time limit for the filing of the notice of appeal in the case of an appeal from the Upper Tribunal to the Court of Appeal is to be calculated in accordance with para.3.3 of Practice Direction 52D (see para.52DPD.4 below). The notice must be filed within 21 days of the date on which the Upper Tribunal's decision on permission to appeal to the Court of Appeal "is given". The Court of Appeal has expressed the opinion that a decision is "given" to parties when it is received or can be taken to have been received by them; the giving of a decision requires the transmission of the decision to the party in question, and it is given to him or her when he receives it or would in the ordinary course receive it (Rust-Andrews v First-Tier Tribunal (Social Entitlement Chamber) [2011] EWCA Civ 1548, December 19, 2011, CA, unrep.).

Service of appellant's notice

52.4.3 The general rule is that, unless the court orders otherwise, an appellant's notice must be served on all respondents as soon as practicable and in any event within seven days: see r.52.4(3) and para.5.21 of the Practice Direction.

Special rules apply, however, in relation to applications for injunctions to prevent gang-related violence. The procedure for such applications is set out in Pt 4 of the Policing and Crime Act 2009 and in Section VIII of CPR Pt 65. An application for such an injunction may be made and granted without notice under ss.39 and 41 of the 2009 Act. If the court refuses to grant an interim injunction on a without notice application and the applicant seeks permission to appeal, the notice of appeal does not have to be served on the respondent: see s.48 (2) of the 2009 Act, r.52.4(4) and para.5.21 of the Practice Direction. The skeleton argument is also exempt from the requirement of service: see para.5.9 (2A) of the Practice Direction. In an appeal in a case of contempt of court as provided for by the Administration of Justice Act s.13 [>>Text] (Vol.2, para.9B–18) in addition the appellant's notice must be served on the court, tribunal etc (as defined in s.13) from whose decision or order the appeal is brought (Practice Direction 52 para.21.4). See further paras 52.1.2 and 52.3.2 above. Note also Sch.1 RSC Ord.109 (para.sc109.1 below) for rules relevant to appeals and applications under s.13.

Content of appellant's notice

52.4.4 If permission has not already been granted by the lower court, the appellant's notice must include an application for permission. See r.52.4(1) and para.4.2 of Practice Direction 52A. The appellant's notice must be in Form N161 (or, in respect of a small claim, Form N164 ). The grounds of appeal (Section 7 of Form N161 ) should set out clearly why it is said (a) that the decision of the lower court is wrong or (b) that the decision of the lower court is unjust because of a serious procedural or other irregularity (see r.52.11(3)). In respect of each ground, the appellant must specify whether the ground raises an appeal on a point of law or is an appeal against a finding of fact. See para.4.2(d) of Practice Direction 52B and para.5(1) of Practice Direction 52C.

Skeleton argument

52.4.5 Paragraph 8.3 of Practice Direction 52B states that, subject to any order of the court, the parties to the appeal should file and serve skeleton arguments only where (a) the complexity of the issues of fact or law in the appeal justify them, or (b) skeleton arguments would assist the court in respects not readily apparent from the papers in the appeal; subject to any order of the court, a copy of the appellant's or respondent's skeleton argument should be included in the appeal bundle (ibid., para.6.4(1)©). Where an appeal is started in the Court of Appeal, at the same time as filing the appellant's notice the appellant must provide the Court with a skeleton argument in support of the appeal (Practice Direction 52C para.3(3)(g)), and a respondent who files a respondent's notice must, within 14 days of filing the notice, lodge a skeleton argument with the court and serve a copy of the skeleton argument on every other party to the appeal (ibid., para.9).

The content of skeleton arguments is dealt with in para.5.1 of Practice Direction 52A. In the case of appeals started in the Court of Appeal, additional provisions are imposed by para.31 of Practice Direction C. Paragraph 5.1 is clear and specific in its requirements and there are costs consequences for non-compliance: see para.5.1(4) (note also para.31(4) of PD 52C). The skeleton argument is a vital document and must be prepared with great care. It will perform two functions. First, it will assist the appeal court in its case management function (hence the need for its early production). Secondly, it will be the document upon which the appellant relies at the full hearing, as a summary of their submissions. In Raja v Van Hoogstraten (No.9) [2008] EWCA Civ 1444 at [122]–[128]; [2008] 1 W.L.R. 1143 the court strongly criticised counsel for one party (Tombstone Ltd) for the excessive length of their skeleton argument. The court expressed similar criticisms in Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66. In this jurisdiction skeleton arguments should not become full written briefs. Where skeleton arguments do not comply with the relevant directions, costs may be disallowed; see para.5.1(4) of Practice Direction 52A and para.31(4) of Practice Direction 52C.

As to supplementary skeleton arguments in appeals to the Court of Appeal, see para.32 of Practice Direction 52C.

In addition to their skeleton argument, the appellant should also provide a chronology (if appropriate, as it usually is) and, if necessary, a list of persons featuring in the case, and/or a glossary of technical terms: see para.5.1 of Practice Direction 52A.

Documents to be lodged with the appellant's notice

52.4.6 The documents to be filed with an appellant's notice in appeals in the county courts and the High Court are as stated in para.4.2 of Practice Direction 52B. Paragraph 6.4 lists the documents to be included (or to be considered for inclusion) in the appeal bundle (which should be filed as soon as practicable, but in any event within 35 days of the appellant's notice). Any relevant document which is obtained or created after the appeal bundle has been filed (for example a respondent's notice or a skeleton argument) should be added to the appeal bundle as soon as practicable and, in any event, no less than seven days before the hearing of the appeal or any application (ibid., para.6.6).

Where permission to appeal is sought from the Court of Appeal, the documents referred to in para.3 of Practice Direction 52C should be filed with the appeal notice. If the appellant is unable to provide any of the necessary documents in time, the appeal notice should be completed on the basis of the available documents (ibid., para.6). Within 14 days of filing the appeal notice the appellant must lodge a bundle containing only those documents which are necessary for the court to determine that application (ibid., para.14(1)). Where permission to appeal is granted the detailed provisions as to the filing of bundles of documents and bundles of authorities, and as to the contents thereof as stated in paras 27 to 29 of Practice Direction 52C apply. It should be noted that the document bundle "must contain only those documents relevant to the appeal" (para.27(1)) and generally the authorities bundle should be limited to ten authorities relevant to propositions in dispute (para.29(4)).

In Smales v Lea [2011] EWCA Civ 1325, October 19, 2011, CA, unrep., Lord Neuberger M.R. noted that the requirement that the documents provided to the appeal court should be limited to those which are necessary for the determination of the appeal was being routinely ignored and stated that, unless there was an improvement in relation to the extent of the documents included in appeal bundles, he would have to consider whether to propose some appropriate sanctions to ensure compliance with that requirement in the future.

In appeals to which Practice Direction 52D applies (statutory appeals and appeals subject to special provisions) numerous provisions in Section 3 thereof deal with the filing and service of documents. Those provisions are in addition to any documents required to be filed under Pt 52, PD 52B or PD 52C (ibid., para.3.2).

Any plan, map, diagram or photograph should be in such form, or accompanied by such explanation, that it is readily intelligible to the judge or lord justice who is pre-reading the papers: see Hunte v E. Bottomley & Sons Ltd [2007] EWCA Civ 1168.

Save in the most exceptional cases, it is not appropriate to include the transcript of an interlocutory hearing in the appeal bundle: see Fiddes v Channel Four Television Corporation [2010] EWCA Civ 730 at [13]–[14].

Practice where the proposed appeal court lacks jurisdiction

52.4.7 Paragraph 2A.5 of the Practice Direction states the practice to be followed by a court officer in giving notice to an applicant who has attempted to file an appellant's notice in circumstances where the appeal court does not have jurisdiction to issue the notice. Where that officer is an officer of the Court of Appeal (Civil Division),r.52.16(5) and (6) is disapplied, with the effect that the applicant may not request the court under that rule to review the officer's decision.

Rule 52.5 Respondent's notice

52.5 †

(1) A respondent may file and serve a respondent's notice.

(2) A respondent who—

(a) is seeking permission to appeal from the appeal court; or

(b) wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court,

must file a respondent's notice.

(3) Where the respondent seeks permission from the appeal court it must be requested in the respondent's notice.

(4) A respondent's notice must be filed within—

(a) such period as may be directed by the lower court; or

(b) where the court makes no such direction, 14 days after the date in paragraph (5).

(5) The date referred to in paragraph (4) is—

(a) the date the respondent is served with the appellant's notice where—

(i) permission to appeal was given by the lower court; or

(ii) permission to appeal is not required;

(b) the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or

© the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.

(6) Unless the appeal court orders otherwise a respondent's notice must be served on the appellant and any other respondent—

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

(7) This rule does not apply where rule 52.4(4) applies.

[The Mould]

Obligation on respondents

52.5.1 In the case of appeals to the Court of Appeal, r.52.5 is supplemented by paras 8 to 11 of Practice Direction 52C. Unless the Court directs otherwise, a respondent need not take any action when served with an appellant's notice until notified that permission to appeal has been granted (ibid., para.19).

The passive respondent

52.5.2 In the circumstance stated in para.8 of Practice Direction 52C, a respondent must file an appeal notice or a respondent's notice. If the respondent seeks only to uphold the judgment of the court below for the reasons given by that court, then they are not obliged to serve a respondent's notice.

Respondent relying upon further reasons

52.5.3 If the respondent seeks to uphold the order of the court below for additional reasons or different reasons from those given by that court, then they must file and serve a respondent's notice. The respondent's notice should be in Form N162 . The respondent should state the additional or different grounds upon which they rely in the appropriate section of that Form.

Respondent seeking to vary the order of the court below

52.5.4 If the respondent seeks to vary the order of the court below, then they must (a) file and serve a respondent's notice and (b) apply for permission to appeal. The criteria and procedure for granting permission to appeal have been discussed above. In practice, however, respondents may find it somewhat easier to obtain permission than appellants. Once one party has obtained permission to re-open the case upon appeal, it may be inappropriate to tie the other party to the terms of the original judgment. If the appeal and cross-appeal are linked (e.g. the defendant disputes the finding of liability and the claimant responds by challenging the level of contributory negligence), it will often be illogical to grant permission to one party and refuse it to the other.

Time for respondent's notice

52.5.5 The time for filing a respondent's notice is set out in r.52.5(4) and (5). In essence, the respondent has 14 days after the date on which, one way or another, it becomes clear that the appellant's appeal will proceed. The lower court may direct a period longer or shorter than 14 days. (See also Pt 1 of the Timetable following para.21 in Practice Direction 52C.) Failure to comply with the time limit can cause considerable difficulties for the court (Mlauzi v SSHD [2005] EWCA Civ 128 at [30]–[31]). An important consequence flows from these provisions. If one party applies to the lower court for permission to appeal (whether or not successfully), the other party/parties should immediately consider how long might be required for a respondent's notice (in the event that permission to appeal is granted either by the lower court or by the appeal court) and make any appropriate application to the lower court. A respondent's notice must be served on all other parties as soon as practicable and in any event within seven days after being filed. See r.52.5(6)). If the respondent requires any extension of time from the appeal court, then they should request this in the respondent's notice: see para.12 of Practice Direction 52C.

Respondent's skeleton argument

52.5.6 Paragraph 9 of Practice Direction 52C states that a respondent who files a respondent's notice must, within 14 days of filing the notice, lodge a skeleton argument with the court and serve a copy of the skeleton argument on every other party to the appeal. In all cases where the respondent is legally represented and proposes to address the court, the respondent must lodge and serve a skeleton argument (ibid., para.13(1)). The respondent's skeleton argument is required at this early stage to assist case management decisions: see p.86 of the Bowman Report and the judgment of Brooke L.J. in Philosophy Inc v Ferretti Studios SRL [2002] EWCA Civ 921. A respondent's skeleton argument must be lodged and served in accordance with Pt 1 of the Timetable following para.21 of that Practice Direction and the provisions as to skeleton arguments in para.31 apply. (Note also para.5.1 of Practice Direction 52A.)

The skeleton argument is a crucial document, which will repay care and thought in its preparation. It will have three important functions. First, it will assist the appeal court in case management. Secondly, it may inspire some of the court's questions or interruptions when the appellant's advocate is opening their appeal (thus helping to focus the oral hearing at an early stage). Thirdly, it will be the document upon which the respondent (if called upon) relies as a summary of their submissions.

In cases where there is no respondent's notice, the respondent must lodge and serve the skeleton argument in accordance with Pt 1 of the Timetable following para.21 of Practice Direction 52C (42 days after the date of listing window notification). However, if an appeal to the Court of Appeal is allocated to the short warned list, the respondent's skeleton argument may be required at short notice: see Scribes West Ltd v Anstalt (No.1) [2004] EWCA Civ 835 at [24].

Documents to be filed by the respondent

52.5.7 Paragraph 8.2 of Practice Direction 52B states that a respondent who has been served with an appeal bundle and who considers that relevant documents have been omitted may file and serve on all parties a respondent's supplemental appeal bundle containing copies of other relevant documents. The supplemental appeal bundle must be filed and served as soon as practicable after service of the appeal bundle, but in any event not less than seven days before the hearing. Paragraph 10 of Practice Direction 52C states that a respondent must file, with the respondent's notice, (a) two additional copies of the respondent's notice for the court, and (b) one copy each for the appellant and any other respondents.

Rule 52.6 Variation of time

52.6 †

(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or time limit set by—

(a) these Rules;

(b) Practice Direction 52; or

© an order of the appeal court or the lower court.

(Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).)

(Rule 3.1(2)(b) provides that the court may adjourn or bring forward a hearing.)

Consequences of refusal to extend time

52.6.1 If a circuit judge or a High Court judge declines to extend time for appealing against the decision of a lower court, that decision does not have the same finality as a refusal of permission to appeal. The disappointed party may (if they obtain permission) appeal against the decision that time should not be extended. See Foenander v Bond Lewis & Co [2001] EWCA Civ 759; [2002] 1 W.L.R. 525.

The practical consequences of this decision need to be borne in mind by judges dealing with applications under r.52.6(1). These consequences were spelt out by Brooke L.J. in Foenander at para.19:

"The logic of this decision is that if a circuit judge or a High Court judge sitting in an appeal court has the choice of disposing of a belated and unmeritorious appeal either by refusing to extend time for appealing or by refusing permission to appeal, he/she should bear in mind that taking the latter course will bring the appellate proceedings to an end. The adoption of the former course, on the other hand, may entail further expense and delay while a challenge is launched at a higher appeal court against the decision not to extend time for appealing."

Criteria to be applied on applications to extend time

52.6.2 On applications under r.52.6 to extend time for appealing after expiry of the time limit, it is necessary to have regard to the checklist in r.3.9. This is because the applicant has not complied with r.52.4(2) and, in the absence of relief, the applicant will be unable to appeal: see Sayers v Clarke Walker [2002] EWCA Civ 645 at [21]; [2002] 1 W.L.R. 3095. In cases where the arguments for granting or refusing an extension of time are otherwise evenly balanced, the court should evaluate the merits of the proposed appeal in order to form a judgment on what the applicants will be losing if time is not extended: see Sayers v Clarke Walker at [34]. In Smith v Brough [2005] EWCA Civ 261 the Court of Appeal, in the course of refusing to extend time by 39 months, stressed the importance of finality in litigation.

In Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 W.L.R. 370 the claimant was granted permission to appeal, despite his delay of four years in applying to the Court of Appeal. The paramount consideration in that case was that the claimant at trial had been denied his right under ECHR art.6 to a fair hearing before an independent and impartial tribunal. There was also a good explanation for his failure to pursue an appeal earlier.

If an application to extend time for appealing is made in time (i.e. it is made prospectively), then r.3.9 does not apply: see the reasoning of the Court of Appeal in Robert v Momentum Services Ltd [2003] EWCA Civ 299; [2003] 2 All E.R. 74.

Where, in an appeal brought under a statute, the time limit for filing the notice of appeal is fixed, not by r.52.4, but by the statute itself, the court may lack power to extend that limit under r.3.1(2)(a); see para. 52.4.1.1 above.

Applications for extension of time in asylum cases

52.6.3 If an asylum seeker failed before the former Asylum and Immigration Tribunal (AIT), but obtained leave from the AIT to appeal to the Court of Appeal, by the practice direction provision relevant to such appeals their notice of appeal was required to be lodged within 14 days. If they failed to meet that time limit, they would require an extension of time. The principles upon which an application for such an extension of time should be dealt with were summarised as follows by the Court of Appeal in BR (Iran) v SSHD [2007] EWCA Civ 198 at [23]; [2007] 1 W.L.R. 2278:

"(i) There should be a presumption that where the AIT has granted permission to appeal to this court the appeal ought to be heard.

(ii) If a procedural fault causes this court to have to consider whether the appeal should proceed, the presumption may be displaced if it can be shown that the decision of the SIJ was plainly wrong, in the sense that it is clear that failure to pursue the appeal would not lead to the United Kingdom being in breach of its international obligations. ...

(iii) Length of delay, when caused by legal representatives, should not be relevant.

(iv) Where delay has been caused by the applicant, the court is likely to look carefully at the light that that sheds on the credibility of the assertion that the applicant has a good claim for international protection. At the same time, the court will remind itself that if after that scrutiny such a claim is established, then the claimant is indeed entitled to international protection despite the domestic court's disapproval of his conduct or his way of promoting his case. ..."

On the other hand, the above principles were applied less charitably in asylum cases where it was the Secretary of State who was late in serving the notice of appeal and who was seeking an extension of time. The consequences of not granting an extension of time would be less serious in cases where the Secretary of State was appellant than in cases where the asylum seeker was appellant. Moreover, the Secretary of State was under a duty to set an example in the speedy conclusion of appeals. See Omar v SSHD [2009] EWCA Civ 383 at [8]; [2009] 1 W.L.R. 2265. In that case the Secretary of State was nine months late in serving her notice of appeal and was refused an extension of time.

It should be noted that the AIT has now been abolished and has been replaced by the Immigration and Asylum Chamber of the Upper Tribunal.

No power to extend time beyond statutory time limits

52.6.4 In Mucelli v Government of Albania [2009] 1 W.L.R. 276 , the House of Lords ruled that a "clear and unqualified statutory time limit" could not be extended under this rule. Thus their Lordships concluded that the courts did not have any power to extend the period for a statutory appeal even by a very short time. Mucelli was an extradition case. But the same rule has been applied to the statutory time limits under the Nursing and Midwifery Order 2001 (SI 2002/253) (Evelyn Mitchell v The Nursing and Midwifery Council [2009] EWHC 1045 (Admin)) and the Medical Act 1983 (R (on the application of Dr Harrison) v General Medical Council [2011] EWHC 1741 (Admin)). In the latter case Blake J. said that, notwithstanding the words of r.3.1, where a primary statute lays down the time limit for an appeal, the court does not have the power to extend the time beyond the period set out in the statute.

Rule 52.7 Stay (GL)

52.7 †

Unless—

(a) the appeal court or the lower court orders otherwise; or

(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,

an appeal shall not operate as a stay of any order or decision of the lower court.

General approach

52.7.1 Neither the commencement of an appeal nor the grant of permission to appeal affects the enforceability of the judgment below. If the appellant desires a stay, they must apply for it and put forward solid grounds why such a stay should be granted. This is true even in judicial review cases concerning immigration or asylum, where the appellant faces deportation as a consequence of the High Court's decision: see R. (Pharis) v SSHD [2004] EWCA Civ 654; [2004] 1 W.L.R. 2590.

Under RSC Ord.59 (which governed appeals prior to May 2000) the courts had established the principle that a successful litigant should not generally be deprived of the fruits of their litigation pending appeal, unless there was some good reason for this course. This general principle still applies. "The normal rule is for no stay ..." per Potter L.J. in Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 at [13]. In DEFRA v Downs [2009] EWCA Civ 257 at [8]–[9] Sullivan L.J., having noted that a stay is the exception rather than the rule, stated that the "solid grounds" which an applicant must put forward are normally "some form of irremediable harm if no stay in granted".

The balancing exercise

52.7.2 If an appellant puts forward solid grounds for seeking a stay, the court must then consider all the circumstances of the case. It must weigh up the risks inherent in granting a stay and the risks inherent in refusing a stay. See, e.g. R. (Van Hoogstraten) v Governor of Belmarsh Prison [2002] EWHC 2015 (Admin); Gater Assets Ltd v Nak Naftogaz Ukrainiy [2008] EWCA Civ 51. In Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, December 18, 2001, unrep., CA, Clarke L.J. described the correct approach as follows at [22]:

"Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of an appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?" (The last sentence might be more felicitous if the word "able" is changed to "unable").

In considering whether, absent a stay, the appeal would be stifled, the court does not look only at the means of the appellant. It also considers whether the money can be raised from the appellant's directors, shareholders, other backers or interested persons: see Contract Facilities Ltd v Estate of Rees (deceased) [2003] EWCA Civ 465 at [10].

A stay may be granted subject to conditions. For example, in Contract Facilities Ltd v Estate of Rees (deceased) [2003] EWCA Civ 465 the appellant claimant obtained a stay of the costs order below, on condition that he paid into a joint account of the two firms of solicitors 50 per cent of the costs claimed by the defendant.

Where the lower court orders a stay of proceedings

52.7.3 A stay of proceedings ordered by the lower court does not preclude an appeal against the order imposing the stay: see Aoun v Bahri [2002] EWCA Civ 1141 at [20]–[23].

Appeals from the Immigration and Asylum Chamber of the Upper Tribunal

52.7.4 The Asylum and Immigration Tribunal ("AIT") was the body which replaced the Immigration Appeal Tribunal with effect from April 2005. Pursuant to r.52.7(b) an appeal from the AIT operated as an automatic stay of the AIT's order or decision.

Where a party applied to the Court of Appeal for permission to appeal out of time against a decision of the AIT, that application did not give rise to an automatic stay of the AIT's order. Nevertheless the Court of Appeal had inherent jurisdiction to order the Secretary of State to refrain from removing the applicant until the application for permission had been determined. When this jurisdiction was exercised a very important factor was the court's assessment of the likelihood that the applications for an extension of time and for permission to appeal would be granted. See YD (Turkey) v SSHD [2006] EWCA Civ 52; [2006] 1 W.L.R. 1646.

With effect from the February 15, 2010 the Immigration and Asylum Chamber of the Upper Tribunal has replaced the AIT. Rule 52.7(b) has been amended to provide that an appeal from the Immigration and Asylum Chamber of the Upper Tribunal operates as an automatic stay of that chamber's decision. It is submitted that the guidance given by the Court of Appeal in YD is applicable when a party applies to the Court of Appeal for permission to appeal out of time against a decision of the Immigration and Asylum Chamber of the Upper Tribunal.

Appeals against possession orders

52.7.5 In Admiral Taverns (Cygnet) Ltd v Daniel [2008] EWCA Civ 1501; [2009] 1 W.L.R. 2192 the Court of Appeal held that s.89 of the Housing Act 1980 [>>Text] did not prevent an appeal court from staying a possession order until the application to appeal or, alternatively, the appeal had been determined.

Rule 52.8 Amendment of appeal notice

52.8 †

An appeal notice may not be amended without the permission of the appeal court.

Point raised below

52.8.1 If the proposed amendment raises a point which was argued in the lower court, the question may arise why this was not included in the original appeal notice. Nevertheless, if the amendment is sought timeously, it may not prejudice other parties. Such an amendment may well be permitted, subject to the general principles governing amendments. See the commentary to Pt 17.

Point not raised below

52.8.2 If the appellant seeks to raise a new point or to withdraw a concession made below, then different considerations arise. In Jones v MBNA International Bank [2000] EWCA Civ 514 the Court of Appeal refused the claimant's application to make amendments raising new grounds of claim. May L.J. stated at para.52:"Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. ... Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions to make and give, and the substantive decision of the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed."

Arden L.J. expressed similar views in Crane T/A Indigital Satellite Services v Sky In-Home Ltd [2008] EWCA Civ 978 at [18]–[22]. Arden L.J. identified a number of factors which would be fatal to an application to raise a new point on appeal, such as the fact that different evidence would have been called at trial. See also Re Southill Finance Ltd (in Liquidation), Mullarkey v Broad [2009] EWCA Civ 2 at [49]–[50], an appeal in which the appellants were not permitted to change their case.

As to the procedure, which should be followed where the nature of the claimant's case changes after the grant of permission, see the commentary following r.52.3.

If the appellant wishes to raise a new point on appeal, this may necessitate amendment of the original pleadings. The Court of Appeal has power in an appropriate (and, it is submitted, exceptional) case to allow such an amendment, even if it was not sought in the court below: see Islington LBC v UCKAC [2006] EWCA Civ 340 at [36]–[41]. Nevertheless, in the absence of permission to amend, the court's jurisdiction is constrained by what is in the grounds of appeal and in the grant of permission: see Gover v Propertycare Ltd [2006] EWCA Civ 286 at [10].

Rule 52.9 Striking out (GL) appeal notices and setting aside or imposing conditions on permission to appeal

52.9 †

(1) The appeal court may—

(a) strike out the whole or part of an appeal notice;

(b) set aside(GL) permission to appeal in whole or in part;

© impose or vary conditions upon which an appeal may be brought.

(2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.

(3) Where a party was present at the hearing at which permission was given he may not subsequently apply for an order that the court exercise its powers under sub-paragraphs (1)(b) or (1)©.

[The Mould]

The appeal court's power

52.9.1 Under r.52.9(1) the appeal court has power to strike out the whole or part of an appeal notice; to set aside permission to appeal in whole or in part; or to impose or vary conditions upon the bringing of an appeal. As to the court's power to order that permission to appeal should be made subject to conditions, see r.52.3(7)(b).

Cautionary note

52.9.2 This tempting provision should not lure advocates into tactical skirmishing or into manoeuvres designed to wear down the opposition. Save in exceptional circumstances, it is a misuse of the court's resources and a waste of costs for the court to consider the substance of an appeal on some intermediate date between the permission hearing and the full appeal. This paragraph of commentary was cited by the Court of Appeal, apparently with approval, in Nathan v Smilovitch [2002] EWCA Civ 759 at [8].

Rule 52.9(2) provides that the power will only be exercised where there is "a compelling reason". There would be a compelling reason, if the materials previously before the judge were so inaccurate or incomplete that the judge had granted permission, when otherwise they would not have done: see Hertsmere BC v Harty [2001] EWCA Civ 1238 at [2]; Angel Airlines SA v Dean & Dean [2006] EWCA Civ 1505. In Nathan v Smilovitch [2002] EWCA Civ 759 at [9] Longmore L.J. said:

"For my part, unless the nature of the application shows that some decisive authority or decisive statutory provision has been overlooked by the lord justice granting permission to appeal, an applicant would normally have to show that the single lord justice had actually been misled in the course of the presentation of an application."

In Barings Bank plc (in liquidation) v Coopers & Lybrand [2002] EWCA Civ 1155 a differently constituted Court of Appeal agreed with that formulation. In Barings Bank events since the grant of permission reduced the importance of the appeal, so that it was relevant to costs only. The Court held that this was not a compelling reason for setting aside the grant of permission and declined to do so. Laws L.J. said:

"It seems to me to be of the highest importance that the court should very firmly discourage the bringing of satellite litigation under the guise of an application under CPR r.52.9. The rule is there to cater for the rare case in which the lord justice granting permission to appeal has actually been misled. If he has, the court's process has been abused and that is of course a special situation. There may also be cases where, as Longmore L.J. indicated in Nathan v Smilovitch [2002] EWCA Civ 759, some decisive authority or statute has been overlooked by the lord justice granting permission. But where such a state of affairs is asserted, the learning in question must in my view be plainly and unarguably decisive of the issue. If there is anything to argue about, an application to set aside the grant of permission will be misconceived."

In the rare cases in which it is appropriate to make an application to set aside the grant of permission to appeal or to impose conditions on the grant of permission, such application should be made promptly: see Okta Crude Oil Refinery AD v Moil-Coal Trading Co Ltd [2003] EWCA Civ 617 at [10]–[11]. The application should not be made at the substantive hearing of the appeal: see Tradigrain SA v Intertek Testing Services (ITS) Canada Ltd [2007] EWCA Civ 154.

If the respondent was present on the occasion when permission was granted, then they cannot subsequently apply to set aside or vary that permission. See r.52.9(3).

An applicant for permission to appeal made without notice is under a duty to make full and frank disclosure to the court, and where that duty is not discharged the applicant runs the risk that any permission granted may be set aside on the respondent's application under r.52.9(1)©; see Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011] EWCA Civ 1148, October 13, 2011, CA, unrep. where the authorities on setting aside permission were examined). In Athletic Union of Constantinople v National Basketball Association (No.2) [2002] EWCA Civ 830; [2002] 1 W.L.R. 2863 the Court of Appeal set aside permission to appeal previously granted by a single lord justice, for want of jurisdiction.

Striking out an appeal notice

52.9.3 It is now unlikely that an appeal notice will be struck out on grounds of lack of merit. If permission to appeal has been granted (and that permission is not to be set aside), it follows that the appeal has a real prospect of success or that there is some other compelling reason why the appeal should be heard: see r.52.3(6). If the appeal notice has been amended after the permission stage, such amendment must have been approved by the court: see r.52.8. Accordingly the power to strike out is more likely to be used for other purposes, for example as a sanction for non-compliance with orders. See e.g. Carr v Bower Cotton [2002] EWCA Civ 789 at [36]; Taiga v Taiga [2004] EWCA Civ 1399.

In Turner v Haworth Associates [2001] EWCA Civ 370 a circuit judge struck out a notice of appeal from an order of a district judge on the ground that the notice of appeal was frivolous, vexatious and an abuse of process. The Court of Appeal upheld the circuit judge's decision. Chadwick L.J. (with whom Hale L.J. agreed) said at [28]: "... the practice which is now embodied in CPR r.52.9 reflects the jurisdiction which a court must have in order to safeguard its own proceedings from abuse; and to deal with an appeal in a summary manner if it thinks that appropriate." It should be noted, however, that the appeal against the district judge's order in Turner was commenced before May 2, 2000, and thus was not subject to a permission requirement. If the appeal had been commenced after May 2, 2000, neither the district judge nor the circuit judge would have given permission to appeal and thus no question of striking out would have arisen.

Imposition of conditions

52.9.4 Rule 52.9(1)© enables conditions to be imposed, when such conditions were not attached to the original grant of permission pursuant to r.52.3(7)(b). In Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, December 18, 2001, CA, unrep., the Court of Appeal pursuant to r.52.9(1)© required the appellant defendant to pay into court the amount of the judgment debt plus costs as a condition of proceeding with its appeal. The appellant in that case was a foreign limited company, which appeared (a) to have ample assets overseas (so that the new condition would not stifle the appeal) but (b) to be unlikely to honour the original judgment if its appeal failed. In Bell Electric Ltd v Aweco Appliance Systems GmbH & Co KG (Application to Stay Appeal) [2002] EWCA Civ 1501; [2003] 1 All E.R. 344 the Court of Appeal required the appellant defendant to give security for the judgment sum, as a condition of prosecuting its appeal, despite the absence of any perceptible future problems in enforcing the judgment debt. This was because of the appellant's deliberate breach of an earlier order to pay the judgment sum. In Dumford Trading AG v OAO Atlantrybflot [2004] EWCA Civ 1265 Clarke L.J. indicated that if the appellant were deliberately dissipating its assets in order to avoid paying a judgment, that might justify adding a condition to the leave to appeal, requiring payment of the judgment debt into court. On the other hand, in Wittman (UK) Ltd v Willdav Engineering SA [2007] EWCA Civ 521 the Court of Appeal refused to impose a condition that the appellant defendant should pay the amount of the judgment debt into court. The appellant had obtained a stay of execution pending appeal. It was uncertain whether the appellant would be able to meet the judgment debt, but "mere impecuniosity" was not a sufficient ground for imposing such a condition (see [10]). Furthermore the respondent had delayed in making its application.

The principles which emerge from the above cases are:

(i) An application by a respondent for an order that the appellant give security as a condition of proceeding with their appeal need not involve consideration of the merits of the appeal at an intermediate stage between the permission hearing and the full appeal. So it does not infringe the cautionary note set out above. See Bell Electric at [19].

(ii) In determining whether there is a "compelling reason" to impose such a condition the court should consider the justice of the case and all the circumstances.

(iii) Any application for the imposition of such a condition should be made promptly.

Even if there is a "compelling reason", the court retains a discretion; see Société Générale SA v SAAD Trading, Contracting and Financial Services Co. [2012] EWCA Civ 695, May 23, 2012, CA unrep. (where the relevant case law and principles to be applied are explained). In Masri v Consolidated Contractors International (UK) Ltd [2007] EWCA Civ 702 Lloyd L.J. followed Hammond Suddard and rejected the submission that such an approach was contrary to ECHR art.6. In Peer International Corporation v Termidor Music Publishers [2007] EWCA Civ 1308 Lloyd L.J. followed Hammond Suddard and held that there was a "compelling reason" to vary the terms upon which permission to appeal had been given by imposing a condition that the appellant do comply with certain costs orders (which were not challenged in the appeal). Where an application is made under r.52.9(1)© for an order to the effect that, as a condition upon which their appeals may be brought the appellants should make substantial payments into court, is resisted on the ground that it would stifle a meritorious appeal, the appellants must put before the appeal court full and frank evidence as to their means (Blue Sky One Ltd v Mahan Air [2011] EWCA Civ 544, May 11, 2011, CA, unrep.). The requirement of such evidence is not incompatible with the appellants' Convention art.6 rights (ibid).

In JSC BTA Bank v Ablyazov [2012] EWCA Civ 639,May 16, 2012, CA, unrep., on the ground that it would be disproportionately severe to do so, an application to impose conditions on the appeal of a contemnor against a committal order was refused.

For another example of conditions being imposed later upon permission to appeal, see the commentary on r.52.3(7)(b) above.

Where conditional permission to appeal has been given by the court below, and where r.52.9(3) applies, a prospective appellant dissatisfied with the conditions cannot appeal against them but must elect either (a) to accept the conditions, in which case the appellant has permission to appeal (albeit on those conditions), or (b) to treat the conditional permission as a refusal and pursue a fresh application for permission to appeal to the appropriate appeal court (R. (Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 269; [2011] 1 W.L.R. 2852, CA.

Costs

52.9.4.1 In Unison v Kelly [2012] EWCA Civ 1148, a case which had originated in an employment tribunal and the EAT, the respondents successfully sought an order under r.52.9(1)© imposing on the grant of permission to appeal a condition that the appellant could only continue the appeal on the basis that it would not seek any of its costs against the respondents if the appeal was successful. One of the many compelling reasons identified by the Court of Appeal for making such an order was that, generally, proceedings in tribunals and the EAT were costs-free, and that this policy would be undermined if respondents were exposed to costs risks on appeals to the courts. And in Olympic Airlines SA (In Liquidation) v ACG Acquisition XX LLC [2012] EWCA Civ 1659, the Court of Appeal not only ordered the appellant to provide security for the costs of the appeal, it also required, as a condition under r.52.9(1)©, that the appellant make an interim payment in accordance with the trial judge's order.

The effect of rule 52.9(3)

52.9.5 Rule 52.9(3) should not be construed as barring an appellant from challenging a condition, which would prevent them from obtaining access to the court: Kuwait Airways Corporation v Iraqi Airways Co (Application for Permission to Appeal) [2005] EWCA Civ 934 at [73]–[74]. Indeed r.52.9(3) does not apply to the appellant at all: see Kuwait Airways at [75]–[81].

Statutory appeals which do not require permission

52.9.6 Rule 52.9 applies to statutory appeals which do not require permission: see Calltel Telecom Ltd v HM Revenue & Customs [2008] EWHC 2107 (Ch); [2009] Bus. L.R. 513. At [34]–[35] Briggs J. questioned what the "compelling reason" requirement contained in r.52.9 (2) added in relation to such appeals.

Rule 52.9A Orders to limit the recoverable costs of an appeal

52.9A †

(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to—

(a) the means of both parties;

(b) all the circumstances of the case; and

© the need to facilitate access to justice.

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.

Effect of rule

52.9A.1 A party (P) engaged in first instance proceedings in a "no costs" jurisdiction, or in a jurisdiction in which recoverable costs against P are restricted, may, in the event of subsequent appeal proceedings, instigated either by P or by another party to the first instance proceedings, be exposed to substantial costs liability if the basic rule that costs should follow the event (the normal costs shifting rule) is applied by the appeal court in making a costs order. In principle it seems right that where it has been seen fit to design a particular first instance jurisdiction so that no costs are recoverable or recoverable costs are restricted, the normal costs shifting rule should not apply to appeals, at least not in its full rigour. Otherwise, the policies justifying costs protection by (what could be called) jurisdictional means (as distinct from protection by bespoke court orders in the form of protective costs orders (PCO) or costs capping orders (CCO) in individual cases) could be undermined. The problem of lack of congruence between rules as to first instance costs and rules as to appeal costs emerged in Eweida v British Airways plc [2009] EWCA Civ 1025, where the appeal was brought from the EAT by the claimant. (In that case the Court of Appeal held that, in the circumstances, the Court of Appeal had no power to make a PCO and that a CCO should not be made.) It was recognised that the problem also arose in appeals from the Upper Tribunal and from the Patents County Court. The matter was discussed in the Review of Civil Litigation Costs: Final Report (December 2009) Ch.34 (pp.337 et seq). For the purposes of providing a solution to the problem, r.52.9A was inserted by the Civil Procedure (Amendment) Rules 2013, as part of the major reforms as to costs brought about by provisions in that statutory instrument. It is likely that, in the future, the range of first instance proceedings "in which costs recovery is normally limited or excluded" will grow and that, therefore, r.52.9A will become increasingly significant.

The rule gives an appeal court a discretion, to be exercised in accordance with matters referred to in sub-rules (2) and (3), to make an order limiting the recoverable costs of an appeal. An application "must be made as soon as practicable" to (presumably) the appeal court (r.52.9A(4)); a requirement that has the merit of ensuring that the matter is considered before significant appeal costs are incurred. The rule came into effect on April 1, 2013, and was subject to no transitional provision; accordingly, in terms, it applies, not only to appeals lodged on or after that date, but also to appeals then pending. The rule is not directly supplemented by any practice direction provision.

Rule 52.10 Appeal court's powers

52.10 †

(1) In relation to an appeal the appeal court has all the powers of the lower court.

(Rule 52.1(4) provides that this Part is subject to any enactment that sets out special provisions with regard to any particular category of appeal—where such an enactment gives a statutory power to a tribunal, person or other body it may be the case that the appeal court may not exercise that power on an appeal.)

(2) The appeal court has power to—

(a) affirm, set aside or vary any order or judgment made or given by the lower court;

(b) refer any claim or issue for determination by the lower court;

© order a new trial or hearing;

(d) make orders for the payment of interest;

(e) make a costs order.

(3) In an appeal from a claim tried with a jury the Court of Appeal may, instead of ordering a new trial—

(a) make an order for damages(GL); or

(b) vary an award of damages made by the jury.

(4) The appeal court may exercise its powers in relation to the whole or part of an order of the lower court.

(Part 3 contains general rules about the court's case management powers.)

(5) If the appeal court—

(a) refuses an application for permission to appeal;

(b) strikes out an appellant's notice; or

© dismisses an appeal,

and it considers that the application, the appellant's notice or the appeal is totally without merit, the provisions of paragraph (6) must be complied with.

(6) Where paragraph (5) applies—

(a) the court's order must record the fact that it considers the application, the appellant's notice or the appeal to be totally without merit; and

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Security for costs of proceedings below

52.10.1 The Court of Appeal has power under this rule to make an order for security in respect of the costs of the proceedings below: Dar International FEF Co v Aon Ltd [2003] EWCA Civ 1833; [2004] 1 W.L.R. 1395. In Mahan Air & Another v Blue Sky One Limited & Others [2011] EWCA Civ 544 , the appellant endeavoured to persuade the court that its appeal would be stifled if conditions were imposed or security for costs ordered. Stanley Burnton L.J. noted that, whilst it was a truism that, in principle, the power to require security for the costs of an appeal, and even more the power to impose financial conditions on an appeal, should not be used to stifle a meritorious appeal, an appellant who urges such an argument on the court had to provide "full and frank evidence as to its means". In that case, the appellant was found not to have provided such evidence, the court finding that "their evidence as to their financial position seems to vary with their forensic tactics". Orders for security for costs were made. And in Garnat Trading and Shipping (Singapore) PTE Limited v Baominh Insurance Corp [2011] EWCA Civ 540 , the Court of Appeal ordered a Vietnamese corporation to pay security for the costs of an appeal in circumstances where it had failed to comply promptly with an earlier order for an interim payment.

By contrast, in Star Reefers Pool Inc v JFC Group [2011] EWCA Civ 1052 , Tomlinson L.J. refused an order for security for costs, even though there was an outstanding costs order against the appellant because, following a detailed analysis of the various disputes between the parties, he concluded that there was "an insufficient connection" between the unmet costs order and the prosecution of the appeal. There was therefore no compelling reason why the payment of the unmet costs order was required as a condition before the appeal could be pursued.

Power to refer before substantive hearing of appeal

52.10.2 Under r.52.10 (2)(b) the appeal court has power to refer any claim or issue back to the lower court for determination. The appeal court may exercise this power even before the substantive hearing of the appeal. Thus the appeal court may invite the judge below to address points which contingently arise in the event that the appeal succeeds on the issue for which permission to appeal has been granted. See Hicks v Russell Jones & Walker [2007] EWCA Civ 844 at [15]–[25]; [2009] 1 W.L.R. 487.

Court of Appeal's power to award interest

52.10.3 In Multiplex Construction Ltd v Cleveland Bridge Ltd [2008] EWCA Civ 133 the Court of Appeal, having allowed in part CB's appeal in respect of preliminary issue 11, ordered that the costs of the hearing below in respect of preliminary issue 11 be reserved to the trial judge; the court further ordered that the payment on account of costs previously made by the partially successful appellant be repaid with interest. May L.J. (with whom Smith L.J. agreed) held that the Court of Appeal's power to award interest in those circumstances arose under r.52.10(2)(d), alternatively under r.52.10(1) (Court of Appeal has all the powers of the lower court) read in conjunction with r.44.3(6)(g) and 44.3(8).

Court of Appeal's power to refer issues to lower court

52.10.4 The Court of Appeal's power under r.52.10(2)(b) to refer issues for determination by the lower court may be exercised even before the appeal has been heard. In Hicks v Russell Jones & Walker [2007] EWCA Civ 844; [2008] 2 All E.R. 1089 the respondents considered that, if one of the grounds of appeal succeeded, additional findings would be required from the judge on matters which had been fully covered before him. The judge indicated that he was willing to make such findings, subject to the approval of the Court of Appeal. The Court of Appeal directed the judge to address the points which contingently arose in relation to the ground of appeal for which permission had been granted. See further MVF3 APS v Bestnet Europe Ltd [2011] EWHC 477 (Ch), March 7, 2011, unrep. (Arnold J.).

In that case, the judge concluded that it was "not immediately obvious" that r.52.10(2)(b) empowered the Court of Appeal to direct the lower court to reconsider an issue it had already decided prior to the substantive hearing of an appeal. The practical approach, as set out by the judge, was to assume that, in essence, the Court of Appeal's order required the judge to reconsider his conclusion on a particular question of fact and that, as a matter of necessary implication, that order should be taken to have set aside any issue estoppel to the extent necessary to enable the judge to perform that task.

The problems identified by Arnold J. demonstrate that this is a power that has to be used with discretion and care and it will not always be the case that the exercise of the power will result in any savings in costs for the parties or in court time. Indeed, in that case, the opposite resulted because, following the delivery of the remittal judgment, the defendant sought permission to appeal, which was granted, but the Court of Appeal subsequently dismissed the substantive appeal (see [2011] EWCA Civ 424, CA).

[The Mould]

Where the lower court comprised judge and jury

52.10.5 Under r.52.10(3) the Court of Appeal has power either to order a new trial or, in effect, to take a short cut. In the latter event the Court of Appeal itself may make an order for damages or vary an award of damages made by the jury. This latter course bypasses the jury, but it has the potential to save both parties substantial costs.

Where the lower court's error arises from some misdirection by the judge, no conceptual problem arises. Where, however, there is an appeal against the verdict of a jury, properly directed, special considerations arise. First, the reasoning process by which the jury reached its verdict is not disclosed and may be a matter for speculation. Secondly, the jury is "an integral and honourable part of the justice system" (per Lord Hobhouse in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40 at [60]; [2002] 1 W.L.R. 3024), whose verdict has a special status. Accordingly the Court of Appeal ought not to find the verdict of a jury on liability to be perverse, unless there was no rational explanation for it: Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 W.L.R. 3024. In Grobbelaar the House of Lords restored the jury's defamation verdict in favour of the claimant (which had been quashed by the Court of Appeal) but reduced damages from £85,000 to £1.

Need for clarity in drafting the court's order

52.10.6 Where an appeal court orders a rehearing, the court should make clear on the face of its order whether it is ordering a rehearing at appeal court level (in which case any subsequent appeal would be a second appeal) or a rehearing of the original matter at first instance: Fowler de Pledge (A Firm) v Smith [2003] EWCA Civ 703 at [39]. The facts of that case illustrate the confusion and costs which can arise when there is doubt about the character of the rehearing which takes place. The confusion which arises from lack of clarity in the judge's order is also illustrated by Hackney LBC v Driscoll [2003] EWCA Civ 1037 and Southern & District Finance plc v Turner [2003] EWCA Civ 1574.

Power to order a new trial or hearing

52.10.7 Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. In the case of a seriously delayed judgment there is an additional test to the effect that, where the reviewing court finds that the judge's recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage the trial judge has in the interpretation of evidence (derived from his having seen the witnesses give their evidence), it cannot be satisfied that the judge came to the right conclusion ( Bond v Dunster Properties Ltd [2011] EWCA Civ 455, April 21, 2011, CA., unrep.).

Delays in original judgment

52.10.7.1 Bond v Dunster is also a helpful case because it reviews the potential for an appeal created by a delay in the delivery of the original judgment. The Court of Appeal reviewed a number of the earlier cases on this point, including Goose v Wilson Sandiford [1998] TLR 85 , where a delay of 20 months, on the facts of that case, was sufficient to justify an appeal. In Bond v Dunster itself, the delay was slightly longer (22 months) but on the unusual facts of that case, the delay in delivering judgment did not render the judge's conclusions on the issues under appeal unsafe so as to make it just to order a retrial. Although the delay was described as "most regrettable", a long delay will not automatically invalidate or even undermine the judgment and, following a detailed review of the factual evidence, the Court of Appeal concluded that the judge at first instance had come to the correct answer.

Appeals from employment tribunals and answers to questions

52.10.7.2 On appeals from an employment tribunal to the EAT, the EAT may ask the tribunal to provide answers to questions arising out of the judgment. This is known as the Burns/Barke procedure after the decisions in Burns v Royal Mail Group [2004] ICR 1103 and Barke v Seetec Business Technology Centre [2005] ICR 1373 . In Korashi v Abertawe BR MorgannWB University Local Health Board [2011] EWCA Civ 1187 , Civil Procedure News Issue 5/2011, the claimant lost in front of the employment tribunal and appealed to the EAT. In accordance with Burns/Barke, the EAT asked the tribunal to provide answers to a lengthy list of questions. The claimant objected to the use of that procedure and challenged its use by applying for permission to appeal to the Court of Appeal. The single Lord Justice gave permission but the subsequent appeal was dismissed. The court concluded that, although there were dangers with the Burns/Barke procedure, the EAT had demonstrated their awareness of the guidance set out in the authorities and their alertness to those dangers. Their decision to operate the procedure was a discretionary case management decision with which the Court of Appeal should not interfere unless the EAT had exceeded the ambit of discretion or failed to have regard to a relevant principle. The court made plain that most, if not all, of the complaints advanced by the claimant could still be advanced at the EAT appeal hearing on the substantive appeal.

Rule 52.11 Hearing of appeals

52.11 †

(1) Every appeal will be limited to a review of the decision of the lower court unless—

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive—

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.

Review or re-hearing?

52.11.1 Rule 52.11(1) provides that every appeal will be limited to a review of the decision of the lower court, unless (a) a practice direction makes different provision or (b) in the circumstances of an individual appeal "it would be in the interests of justice to hold a re-hearing." The general rule that an appeal will be limited to a review is repeated in practice direction provisions relevant to some categories of appeal reflecting statutory provisions; e.g. para.20.1 of Practice Direction 52D.

Specific categories of appeal may be required by statute and/or the Practice Direction to take the form of re-hearings: see e.g. paras 19.1, 25.1 and 29.1 of Practice Direction 52D. Thus an appeal to the Administrative Court from the Fitness to Practise Panel of the General Medical Council is required to be by way of re-hearing.

As to r.52.11(1)(b), the decision whether to review or to re-hear will be heavily conditioned by the facts of particular cases, although (where the Practice Direction does not require a re-hearing) the normal practice will be to review. See Asiansky Television plc v Bayer Rosin [2001] EWCA Civ 1792. Ward L.J. observed in Ealing LBC v Richardson [2005] EWCA Civ 1798 at [20]:

"It is, after all, firmly to be accepted that a re-hearing is an exception to the general rule; that some injustice must have occurred, and a simple failure to put one's case before the first court is not ordinarily to be cured by a re-hearing."

In Secretary of State for Trade and Industry v Lewis [2001] 2 B.C.L.C. 597 at 600e–g, Neuberger J. said that generally the fact that the court below had not given reasons was not a ground for holding a re-hearing, rather than a review. It would be otherwise if the court below had been asked to give its reasons and had refused to do so or if there was some good reason for not asking the court below to give its reasons.

In Audergon v La Baguette Ltd [2002] EWCA Civ 10 the Court of Appeal reversed the decision of a Chancery judge because, on hearing an appeal from a master, the judge had conducted a re-hearing whereas he should have conducted a review. Jonathan Parker L.J. (with whom Tuckey and Pill L.JJ. agreed) formulated at [83] five general observations with regard to the discretion to hold a re-hearing:

"(1) The general rule is that appeals at all levels will be by way of review... (2) A decision to hold a re-hearing will only be justified where the appeal court considers that in the circumstances of the individual appeal it is in the interests of justice to do so. (3) It is undesirable to attempt to formulate criteria to be applied by the appeal court in deciding whether to hold a re-hearing. ... (4) In a case involving some procedural or other irregularity in the lower court it will be material for the appeal court, when considering whether to hold a re-hearing, to have regard to the fact that an appeal will be allowed where the decision of the lower court is rendered "unjust because of serious procedural or other irregularity" ... (5) The word "will" in the opening words of CPR r.52.11(3) throws no light on the approach to be adopted in deciding whether to hold a re-hearing under CPR r.52.11(1)(b)."

Appeals from the Registrar of Trade Marks will normally proceed by way of review rather than rehearing: see Dyson Ltd v Registrar of Trade Marks [2003] EWHC 1062 (Ch) at [4]–[14]; [2003] 1 W.L.R. 2406; EI Du Pont Nemours & Co v ST Du Pont [2003] EWCA Civ 1368 at [96]; [2006] 1 W.L.R. 2793. An appeal from a hearing officer to the High Court under s.74B of the Patents Act 1977 (as amended by the Patents Act 2004) generally proceeds by way of review rather than re-hearing: see DLP Ltd's Patent, Re [2007] EWHC 2669 (Pat); [2008] 1 All E.R. 839.

Where an application for extension of time is made prospectively under r.3.1(2)(a) to the district judge, any appeal against their decision should normally be by way of review. A rehearing would only be appropriate if the district judge's decision was so inadequately reasoned that the losing party does not know why they lost: see Robert v Momentum Services Ltd [2003] EWCA Civ 299 at [28]; [2003] 2 All E.R. 74.

The decision of the Court of Appeal in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642; [2003] 1 W.L.R. 577 contains a thoughtful discussion as to what the difference is between "review" and "rehearing" in the context of r.52.11(1). Both Clarke L.J. and Ward L.J. conclude that in a case where the appeal court is being asked to reverse findings of fact based upon oral evidence which the judge has heard, the approach of the appeal court is the same, whether it proceeds by way of review or rehearing. On the other hand, where the judge's evaluation of the facts or exercise of discretion is challenged, then the difference between a review and a rehearing will be of considerable importance. In Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; 1 at [46] the House of Lords approved the judgment of Clarke L.J. in Assicurazioni Generali SpA.

The Court of Appeal re-examined the difference between "review" and "re-hearing" in E.I. Du Pont Nemours & Co v S.T. Du Pont [2003] EWCA Civ 1368; [2006] 1 W.L.R. 2793. May L.J. made five important points in his judgment on this issue:

(i) Because r.52.11 applies to a wide range of possible appeals, it "contains a degree of flexibility necessary to enable the court to achieve the overriding objective of dealing with individual cases justly". See [92]–[93]. In other words, the precise meaning and application of "review" and "re-hearing" will depend upon the circumstances of the case.

(ii) In r.52.11(1) "re-hearing" means a re-hearing in the fullest sense of the word. That is the sort of re-hearing which used to take place upon an appeal from a master or registrar to a judge in chambers pursuant to the former RSC Ord.58 r.1. See [89] and [96].

(iii) In r.52.11(1) "review" is not to be equated with judicial review. "It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former Rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material". See [94].

(iv) The power of the appeal court to receive fresh evidence pursuant to r.52.11(2) arises both on a re-hearing and on a review. See [95].

(v) May L.J. agreed with the judgment of Clark L.J. in Assicurazioni Generali SpA, subject to one gloss: "The attribution of the label "rehearing" is not, other than exceptionally, necessary to enable the court upon a hearing by way of review to make the evaluative judgments necessary to determine whether the decision under appeal was or was not wrong". See [97].

In an appeal by way of re-hearing from a profession's regulatory or disciplinary tribunal, the court will have to decide how much deference it should accord to the decision of the tribunal members. In CRHCP v General Medical Council [2004] EWCA Civ 1356; [2005] 1 W.L.R. 717 the Court of Appeal formulated the approach as follows at para.78:

"Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, ... the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed."

In General Medical Council v Meadow [2006] EWCA Civ 1390 the Fitness to Practise Panel of the GMC found that M was guilty of serious professional misconduct, the Administrative Court on appeal reversed that finding and the Court of Appeal, by a majority, upheld the decision of the Administrative Court on that issue. Auld L.J. (with whom Thorpe L.J. agreed at para.282) noted that the courts had begun to distance themselves from earlier expressions of deference to specialist regulatory and disciplinary bodies. This was more a question of emphasis than clear definition. The courts should still accord such bodies an appropriate measure of respect. "However, the courts should be ready in appropriate cases and, if necessary, to substitute their own view for that of disciplinary bodies." See para.120.

Fresh evidence

52.11.2 The appeal court will not receive fresh evidence (oral or written) "unless it orders otherwise". See r.52.11(2). The principles upon which this power will be exercised are not spelt out in the rule or the Practice Direction.

Prior to May 2000, after there had been a trial on the merits, the Court of Appeal would only receive further evidence "on special grounds" (RSC Ord.59 r.10(2)). Subject to certain established exceptions, the "special grounds" were those set out in Ladd v Marshall [1954] 1 W.L.R. 1489. They were: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible. See Denning L.J. at 1491. For a detailed discussion of the Ladd v Marshall conditions, see Vol.1 of the Supreme Court Practice 1999, pp.1063–1064.

In Hertfordshire Investments Ltd v Bubb [2000] 1 W.L.R. 2318, the Court of Appeal noted that r.52.11(2) did not retain the former requirement for "special grounds". Nevertheless the principles reflected in Ladd v Marshall remain relevant. They are matters which the Court of Appeal must consider in the exercise of its discretion, when deciding whether to receive fresh evidence. See the judgment of Hale L.J. at 2325.

In Hamilton v Al-Fayed (Joined Party) [2001] E.M.L.R. 15 the Court of Appeal approved the guidance given in Hertfordshire Investments Ltd. Lord Phillips M.R., giving the judgment of the Court, said this at para.11:

"We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, which is governed by the transitional provisions, we do not consider that we are placed in the straitjacket of previous authority when considering whether such special grounds have been demonstrated. That question must be considered in light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective."

In Terluk v Berezovsky [2011] EWCA Civ 1534, December 15, 2011, CA, unrep., the Court of Appeal stated that the authorities show that the primary rule is given by the discretion expressed in r.52.11(2)(b) coupled with the duty to exercise it in accordance with the overriding objective; consequently, the Ladd v Marshall criteria are no longer primary rules constitutive of the court's power to admit fresh evidence; however those criteria effectively occupy the whole field of relevant considerations to which the appeal court must have regard in deciding whether in any given case the discretion should be exercised to admit the proffered evidence. See also Banks v Cox July 17, unrep.; Riyad Bank v Ahli United Bank (UK) Plc [2005] EWCA Civ 1419, November 23, 2005, CA, unrep.; Toth v Jarman [2006] EWCA Civ 1028, [2006] 4 All E.R. 1276, CA.

In determining, in a modest personal injury claim, whether with reasonable diligence the evidence could not have been obtained by solicitors for use at the trial, the appeal court may have regard to the solicitors being aware of the need to be proportionate as to costs in their conduct of the claim ( Singh v Habib [2011] EWCA Civ 599, April 12, 2011, CA, where stated that with reasonable diligence defence solicitors would not have come upon evidence relevant to allegation of claimant's fraud). In Al-Koronky v Time Life Entertainment Group [2006] EWCA Civ 1123 the Court of Appeal refused to admit fresh evidence in an appeal against an order for security for costs. The proposed evidence concerning the claimants' impecuniosity could and should have been put before the judge at the original hearing. The proposed evidence concerning the claimants' likelihood of success at trial was highly contentious.

"We are forced to conclude that it would be wrong and contrary to the interests of justice to admit it at this stage. We would, in effect, be conducting a new and very different hearing from that which occurred at first instance, and such a departure from the well established principles is not justified."

(See the judgment of the court, para.20.)

In Webster v Norfolk County Council [2009] EWCA Civ 59; [2009] 2 All E.R. 1156 the Court of Appeal refused to admit fresh evidence on a straight application of the Ladd v Marshall tests. Wall L.J., giving the leading judgment with which Moore-Bick and Wilson L.JJ. agreed, observed at [20]:

"It [Ladd v Marshall] has survived the introduction of the CPR, and its approach is binding on us, although it is, I think, generally accepted that in cases relating to children, the rules it lays down are less strictly applied."

Despite Webster, the Ladd v Marshall tests should not be treated as the sole guiding principles: see Muscat v Health Professions Council [2009] EWCA Civ 1090 at [26]. It is submitted that Richards L.J. (with whom Rimer and Arden L.JJ. agreed) struck the right note in Sharab v Al-Saud [2009] EWCA Civ 353 at [52]:

"The court must of course seek to give effect to the overriding objective of doing justice, but in that respect the pre-CPR cases, including Ladd v Marshall, remain of relevance and indeed of powerful persuasive authority."

The Court of Appeal may admit fresh evidence for the purposes of an appeal which is proceeding by way of re-hearing rather than review: see Mastercigars Direct Ltd v Withers LLP [2009] EWHC 993 (Ch) at [9]. If the reception of fresh evidence would lead to a re-trial, this should only be allowed "if imperative in the interests of justice": see Transview Properties Ltd v City Site Properties Ltd [2009] EWCA Civ 1255.

The Court of Appeal adopts a similar approach towards applications to adduce fresh evidence in the context of appeals against summary judgment under r.24.2 or striking out orders under r.3.4: see Aylwen v Taylor Joynson Garrett [2001] EWCA Civ 1171 at [47]–[49]; [2002] P.N.L.R. 1.

Junior appellate courts generally adopt a similar approach to that of the Court of Appeal in relation to applications to adduce fresh evidence.

In trade mark appeals the same principles govern the reception of fresh evidence as in other appeals. However, the nature of trade mark appeals may give rise to a particular application of those principles which is somewhat more relaxed. See EI Du Pont Nemours & Co v ST Du Pont [2003] EWCA Civ 1368 at [100]–[104]; [2006] 1 W.L.R. 2793.

Rule 52.11(2), unlike its predecessor (RSC Ord.59 r.10(2)), contains no qualification concerning matters which have occurred after the date of the trial or hearing. Under the former law, the express (but exceptional) power to admit further evidence as to matters occurring after the date of the trial or hearing was exercised sparingly and with due regard to the need for finality in litigation. See Hughes v Singh, The Times, April 21, 1989. The position under the CPR was summarised in R. (Iran) v SSHD [2005] EWCA Civ 982 at [34]–[37]. It remains the case that evidence of changed circumstances since the date of the original decision should only be sparingly admitted. Examples of cases in which it was appropriate to admit such evidence were given by Brooke L.J. at [34].

Where the proposed fresh evidence indicates that the original judgment was obtained by fraud, the traditional view is that the applicant should not be permitted to raise this on appeal, but rather should commence a fresh action to set aside the original judgment for fraud: see Flower v Lloyd (1877) 6 Ch.D. 287 and Jonesco v Beard [1930] A.C. 298. In Owens v Noble [2010] EWCA Civ 224; [2010] 1 W.L.R. 2491; [2010] 3 All E.R. 830, however, the Court of Appeal proposed a new and less expensive procedure. The Court of Appeal should refer the fraud issue for trial before a High Court judge pursuant to r.52.10(2)(b). In that case the fraud issue was remitted to the original trial judge. An appeal court will be particularly acute to consider questions of admitting additional evidence when the public interest in the prevention of fraudulent road traffic claims comes before it ( Singh v Habib [2011] EWCA Civ 599, April 12, 2011, CA, where additional evidence relevant to that interest admitted). In that case, the Court of Appeal ordered a retrial in a case where fresh evidence demonstrated that the accident may never in fact have occurred. In determining whether solicitors, in modest road traffic personal injuries claims, had shown reasonable diligence in obtaining evidence, the appeal court will take into account the requirement that solicitors were expected to conduct such cases in a proportionate manner, mindful of the need to control costs. It would be "a counsel of perfection" to suppose that the solicitors for the insurers should have gone in search of the evidence material to the alleged fraud.

Case management of appeal hearing

52.11.3 Any appellate court will seek to use its resources in the most efficacious manner and may take any proper "short cut" which becomes available. This is in accordance with the overriding objective (CPR Pt 1).

If the appellant has to succeed on two grounds in order to overturn the first instance judgment, the appellate court may decide to hear argument first on one ground only (e.g. because that ground will take less time or because it poses particular difficulties for the appellant). If that course is taken and the appellant loses on the first ground, they cannot insist upon ventilating the second ground simply to improve their position in relation to costs: see Palfrey v Wilson [2007] EWCA Civ 94 at [4]–[5].

Grounds for allowing appeal

52.11.4 Rule 52.11(3) provides two grounds upon which an appeal "will" be allowed: (a) that the decision of the lower court was wrong; (b) that the decision of the lower court was unjust because of a serious procedural or other irregularity.

In r.52.11(3)(a) "wrong" presumably means that the court below (i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion.

The distinction between these different categories of appeal is important. Practitioners should not confuse the approach to reviewing an exercise of discretion with the approach to reviewing a judge's findings of fact: see Manning v Stylianou [2007] EWCA Civ 1655 at [19].

In relation to alleged errors of fact by the lower court, the Court of Appeal gave valuable guidance as to the approach to be adopted in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642; [2003] 1 W.L.R. 577 at [6]–[23] per Clarke L.J. and [193]–[197] per Ward L.J. The degree of deference which is due to the findings of primary fact made by the judge below will depend upon the nature and circumstances of the case. The approach of the court in this kind of case (absent any fresh evidence) should be the same, whether it is conducting a review or a re-hearing. On the other hand, where the judge's evaluation of the facts is challenged, such cases may be closely analogous to the exercise of a discretion and appellate courts should approach such cases in a similar way (as to which, see the following paragraph).

In Manning v Stylianou [2007] EWCA Civ 1655 the Court of Appeal was entitled to (and did) reverse the trial judge's decision as to where the claimant's accident had occurred. This was because the interpretation of photographs was crucial to that decision and the Court of Appeal was in just as good a position as the trial judge to interpret the photographs. On the other hand, in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 W.L.R. 2416 the House of Lords held that the Court of Appeal had erred in substituting its own assessment of the evidence for that made by the trial judge. The trial judge's decision on the issue of substantiality in a copyright infringement claim was restored. In Cook v Thomas [2010] EWCA Civ 227 at [48] Lloyd LJ (with whom Sullivan and Laws L.JJ. agreed) stated: "an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue".

As to what constitutes a sufficient error in the exercise of discretion to warrant interference by the appeal court, see Tanfern Ltd v Cameron MacDonald [2000] 1 W.L.R. 1311, para.32. Brooke L.J. suggested that guidance might be gained from the speech of Lord Fraser in G. v G. (Minors: Custody Appeal) [1985] 1 W.L.R. 647 at 652. In the latter part of the passage cited by Brooke L.J., Lord Fraser stated:

"... the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."

An alternative formulation of the threshold test for interference with the exercise of discretion by the appeal court is that stated by Lord Woolf M.R. in Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 1 W.L.R. 1507 at 1523:

"Before the court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."

This passage was cited and applied by the Court of Appeal in Price v Price (t/a Poppyland Headware) [2003] EWCA Civ 888 at [26]–[27]; [2003] 3 All E.R. 911.

There are some cases where the first instance judge has made a decision which involved the assessment and balancing of a large number of factors, for example determining whether an action constitutes abuse of process. Such a decision is not an exercise of discretion, because there is only one right answer to the question before the judge. The Court of Appeal is reluctant to interfere with such a decision. However, the Court of Appeal will interfere if the judge has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was impermissible: see Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260 at [16]; [2008] 1 W.L.R. 748. The Court of Appeal will also interfere if the judge's decision was "plainly wrong": see Stuart v Goldberg [2008] EWCA Civ 2 at [76] and [81].

In determining whether the decision of the lower court was "wrong" for the purposes of r.52.11(3)(a), regard must be had to the way in which the parties' cases were formulated below: see King v Telegraph Group Ltd [2004] EWCA Civ 613 at [54].

The ground in r.52.11(3)(b) is onerous. The procedural or other irregularity must be a serious one. Furthermore it must have caused the decision of the lower court to be unjust. However, this ground does not depend upon the decision of the lower court being "wrong". In other words ground (b) may apply even if the lower court would have reached the same decision, absent any procedural or other irregularity. Storer v British Gas Plc [2000] 1 W.L.R. 1237 (which pre-dated the new Pt 52 by 3 months) affords a good illustration of such a case. The Court of Appeal in Storer allowed an appeal because the industrial tribunal had not sat in public. Nevertheless, in the majority of cases an appeal on ground (3)(b) is unlikely to succeed unless the irregularity has had a significant impact upon the proceedings below; for example, the wrongful exclusion of evidence or wrongful restriction of cross-examination on matters crucial to the case: Hayes v Transco plc [2003] EWCA Civ 1261. In Breeze v Ahmad [2005] EWCA Civ 192; [2005] C.P. Rep. 29 the Court of Appeal allowed an appeal and ordered a retrial, because the effect of two technical papers (which had not been produced to the court) had been unwittingly misrepresented to the court.

Failure to give reasons

52.11.5 In Flannery v Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377 the Court of Appeal allowed an appeal on the ground that the judge had failed to give reasons for preferring the expert evidence of one party to that of the other. In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 W.L.R. 2409 the Court of Appeal enumerated why a trial judge must give adequate reasons. Reasons are necessary in order to render practicable the exercise of any right of appeal. Justice must be seen to be done. It must be apparent both to the parties and to the public why one party has won and the other has lost. The giving of reasons provides a necessary discipline for judges and it contributes to the setting of precedents for the future. The judge does not have to deal with every argument presented, but must make plain the principles on which they have acted and the reasons which led them to this decision.

In English at [25] the Court of Appeal said that at the permission stage the judge may take, or be given, the opportunity to provide additional reasons for their decision. This course could lead to a considerable saving of costs, especially where the outcome of any appeal may be an order for a retrial. The same principle applies in family proceedings: see T (A Child) [2002] EWCA Civ 1736 at [49]. The correct sequence is that first the judge should be invited to deal with whatever point it is said was not dealt with; secondly, and in the light of any elaboration given by the judge, the applicant should consider whether they still wish to appeal; if so, thirdly they should apply to the judge for permission to appeal: see In the matter of S (Children) [2007] EWCA Civ 694 at [23]–[25]. In the case of In re M (A Child) (Non accidental Injury: Burden of Proof) [2008] EWCA Civ 1261, The Times December 16, 2008, CA, the Court of Appeal (in remitting to the judge a passage of the judge's judgment for clarification) stressed that counsel has a positive duty in civil proceedings to raise with the judge at handing down, not only any alleged defect in the judge's reasoning, but also any genuine query or ambiguity which arose in the written judgment. See furtherpara.40.2.1.0.3.

It is, however, inappropriate to go back to the trial judge for clarification or amplification at a later stage, many months after the original judgment was delivered (Michael Hyde Associates Ltd v J D Williams & Co Ltd [2001] P.N.L.R. 233) or where there is a danger of ex post facto rationalisation (Aerospace Publishing Ltd v Thames Water Utilities Ltd [2006] EWCA Civ 717). The Court of Appeal did not have power to invite the Asylum and Immigration Tribunal to provide additional reasons for a decision which is under appeal: see Hatungimana v SSHD [2006] EWCA Civ 231.

If a judge volunteers further reasons for his decision in a second judgment, the Court of Appeal may take those further reasons into account: see Roche v Chief Constable of Greater Manchester [2005] EWCA Civ 1454 at [23]–[27].

In relation to decisions of the Special Educational Needs and Disability Tribunal, the Court of Appeal stated that the tribunal should provide a summary of its reasons, rather than a detailed and comprehensive analysis of the case: see Miss H v East Sussex County Council [2009] EWCA Civ 249 at [14]–[19]. The Special Educational Needs Tribunal has now been replaced by the Special Educational Needs and Disability Panel, which is part of the Health, Education and Social Care Chamber of the First-Tier Tribunal.

Uniform approach of all appeal courts

52.11.6 The most radical change made by r.52.11 was to unify the approach of all appeal courts. Prior to May 2000 an appeal from a district judge or master to a judge in chambers was a complete re-hearing, with a fairly relaxed approach towards the admission of fresh evidence. The uniform approach which is now adopted by all appeal courts accords with recommendation 181 of the Woolf Report. Under the new approach the decision of the lower court attracts much greater significance. See Tanfern Ltd v Cameron-MacDonald [2000] 1 W.L.R. 1311, para.31.

Rule 52.12 Non-disclosure of Part 36 offers and payments

52.12 †

(1) The fact that a Part 36 offer or payment into court has been made must not be disclosed to any judge of the appeal court who is to hear or determine—

(a) an application for permission to appeal; or

(b) an appeal,

until all questions (other than costs) have been determined.

(2) Paragraph (1) does not apply if the Part 36 offer or payment into court is relevant to the substance of the appeal.

(3) Paragraph (1) does not prevent disclosure in any application in the appeal proceedings if disclosure of the fact that a Part 36 offer or payment into court has been made is properly relevant to the matter to be decided.

(Rule 36.3 has the effect that a Part 36 offer made in proceedings at first instance will not have consequences in any appeal proceedings. Therefore, a fresh Part 36 offer needs to be made in appeal proceedings. However, rule 52.12 applies to a Part 36 offer whether made in the original proceedings or in the appeal.)

Note

52.12.1 In Garrett v Saxby [2004] EWCA Civ 341; [2004] 1 W.L.R. 2152; the Court of Appeal discussed what should be done when, through inadvertence, there has been a breach of r.52.12(1). Dyson L.J., giving the principal judgment, reviewed the pre-CPR authorities, which he considered to be of continuing persuasive force. His conclusions at [20] appear to be equally applicable both to appeal courts and to first instance judges:

"It is for the judge to decide in each case whether the disclosure of a Part 36 offer or payment makes a fair trial impossible and whether justice demands that he recuse himself. But judges should not be too ready to reach such a conclusion; the delay and extra cost occasioned by a recusal may be very considerable. Moreover, when exercising their discretion, judges should remind themselves that they ought to have little difficulty in analysing and deciding the issues in the case on their merits without being influenced by their knowledge of the amount of the Part 36 offer or payment".

Rule 52.12A Statutory appeals—court's power to hear any person

52.12A †

(1) In a statutory appeal, any person may apply for permission—

(a) to file evidence; or

(b) to make representations at the appeal hearing.

(2) An application under paragraph (1) must be made promptly.

[The Mould]

Statutory appeals

52.12A.1 In a great variety of circumstances, appeals to the Court of Appeal, to the High Court or to a county court are provided for by statute ("statutory appeals") and many involve appeals from decisions by ministers, government departments, tribunals and persons holding official positions. Practice Direction 52D applies to all statutory appeals, and to other appeals which are subject to special provision, but not to appeal by way of case stated (to which Practice Direction 52E applies). The Table in para.5.1 of Practice Direction 52D lists statutes providing for such appeals and relevant special directions indicating relevant practice and procedure are set out in the paragraphs following. (The Table is comprehensive but not exhaustive.)

Rule 52.12A enables someone other than a party, if granted permission, to file evidence or to make representations at the hearing of a statutory appeal. Rule 52.12A and rr.52.18 to 52.20 were inserted by SI 2007/2204 following a consultation on proposals for rationalising procedures for statutory appeals.

II. Special Provisions Applying to the Court of Appeal

52.12.1.1

Introduction

The rules in CPR Pt 52 apply to appeals to the Court of Appeal, the High Court, and to the county courts. The rules in Section II of Pt 52 (rr.52.13 to 52.16) are, as the title to the Section indicates, "special provisions applying to the Court of Appeal". Those rules deal with a very limited range of matters. There are five Practice Directions supplementing Pt 52, and with the exception of one, they all contain provisions that may be relevant to the handling of an appeal to the Court of Appeal. (They came into effect on October 1, 2012.) The exception is Practice Direction 52B (Appeals in the County Courts and High Court). Directions specially tailored for appeals to the Court of Appeal (and therefore not applying to appeals in the county courts and the High Court) are contained in Practice Direction 52C. The provisions in that Practice Direction supplement, not only rules in Section II of Pt 52, but also rules in other Sections of Pt 52 insofar as they may apply to appeals to the Court of Appeal (especially the general rules as to appeals contained in Section I). It should be noted that para.2 of Practice Direction 52C states that the Court of Appeal "may make such directions as the case may require and such directions will prevail over any provision of this practice direction".

Applications and appeals to the Court of Appeal, and other relevant documents, are filed in the Civil Appeals Office Registry, Room E307, Royal Courts of Justice, Strand, London WC2A 2LL (telephone 020 7947 7882 and 020 7947 6533): see para.3(2) of Practice Direction 52C. The work of that office is conducted under the direction of the Head of Civil Appeals. Rule 52.16 provides for the judicial powers which they and other eligible officers may be authorised to exercise.

The Court of Appeal's website includes a wealth of valuable practical guidance about Court of Appeal practice. Such guidance is to be found in particular under the headings "Forms and guidance", "Legal, Personal and Practical Support" and "Questions and Answers".

The day to day management of cases is carried out by lawyers in the Civil Appeals Office under the general direction of the court, and particularly under the direction of the appropriate supervising lord justice. The prefix of the reference number assigned to each case that is filed in the Court of Appeal, denotes the responsible section within the office.

In applications before the Court of Appeal which are likely to last half an hour or less, consideration should be given to the use of video-conference facilities. See Black v Pastouna [2005] EWCA Civ 1389.

52.12.1.2

Filing documents

The documents required to be filed in the Civil Appeals Office in respect of an appeal proceeding in the Court of Appeal are set out in Practice Direction 52C, especially in Sections 2 and 3 thereof.

These requirements have been discussed and emphasised in the commentaries following rr.52.4 and 52.5 above. Suffice it to say, at this stage, that these requirements must be scrupulously observed or sanctions are likely to follow. The Court of Appeal will refuse to make orders by consent administratively, if the requirements of Practice Direction 52C are broken. Instead the parties will be required to attend before the court and to explain what has happened and why: Jayapragash v SSHD [2004] EWCA Civ 1260.

52.12.1.3

Lists and citation of authorities

When citing reported cases, the parties and their representatives should follow the guidance given in Section 8 of Practice Statement (Supreme Court: Judgments) [1998] 1 W.L.R. 825. In particular, if a case is reported in the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales, that report should be cited. These are the most authoritative reports and they contain a summary of argument. Further, if a case is reported in Volume 1 of the Weekly Law Reports and also in the All England Law Reports, the W.L.R. report should be used in preference to the All E.R. report; and BAILII reports (with neutral citation numbers) should only be used if no other recognised report is available and the case really needs to be cited ( A City Council v T (Practice Note) [2011] EWCA Civ 17; [2011] 1 W.L.R. 819, CA). When a decision of the Court of Appeal given after January 10, 2001 is cited, the system of neutral citation must be used as set out in Practice Direction (Judgments: Form and Citation) [2001] 1 W.L.R. 194. When a decision of the High Court given after January 13, 2002 is cited, the system of neutral citation must be used as set out in Practice Direction (Judgments: Neutral Citations) [2002] 1 W.L.R. 346.

In April 2001 the Court of Appeal issued a practice direction, which still remains in force, with a view to limiting the citation of cases to those which are relevant and useful to the court: Practice Direction (Court of Appeal: Citation of Authorities) [2001] 1 W.L.R. 1001 ("the 2001 Practice Direction").

Paragraph 29 of Practice Direction 52C requires the appellant to file a bundle of documents complying with the terms of that paragraph (which must be scrupulously observed). The time limits within which the bundle must be filed and served are stated in the Timetable following para.21 of Practice Direction 52C. Paragraph 29(5) requires the advocates who will argue the case to certify that the requirements of para.29 have been complied with.

52.12.1.4

Skeleton and supplementary skeleton arguments

Paragraph 32 of Practice Direction 52C permits the filing of supplementary skeleton arguments. The appellant's skeleton argument must be filed at least 14 days before the hearing. The respondent's skeleton argument must be filed at least seven days before the hearing. Any argument which is not contained in the original or supplementary skeleton arguments (timeously served) may be shut out by the court: see para.32(3). The background and effect of these provisions were set out in Scribes West Ltd v Resla Anstalt (No.1) [2004] EWCA Civ 835; June 29, 2004, unrep., CA, at paras 25 to 27. In AIC Ltd v ITS Testing Services (UK) Ltd (The "Kriti Palm") [2006] EWCA Civ 1601; [2007] 1 Lloyd's Rep. 555, CA, Buxton L.J. explained (at para.393) that, in para.15.11A, "supplementary" means what it says, and permits the filing of a further skeleton argument to provide for lately decided or (within limits) discovered authority, for changes of underlying factual circumstances, or for the brief answering of points in the other side's argument that genuinely do not arise out of the original grounds of appeal. The provision does not permit the late submission of a skeleton argument raising a completely revised and expanded case. Should an appellant party find itself wishing to make a very much expanded case, requiring an extension of the time already allocated by the court for the hearing of the appeal, that party should, at the earliest date at which that becomes apparent, give the court full details making entirely clear what is wanted and why it is wanted (ibid.).

In Khader v Aziz & Another [2010] 1 W.L.R. 2673, Sir Anthony May issued a warning about "the still increasing tendency to overburden the court and other parties with skeleton arguments which are not skeleton, and with volumes of unnecessary documents and authorities." He said that judges should be more prepared to disallow the cost of their preparation, and that the court will not tolerate the time and cost of both excessive written submissions and oral argument of commensurate length.

52.12.1.5

Timetable for conduct of appeal

Paragraph 21 of Practice Direction 52C contains a timetable for the conduct of appeals in the Court of Appeal after the Court has given the parties notification of the listing window. The timetable lists the various steps to be taken by the parties, in particular the filing and service of notices, skeleton arguments, bundles of documents and authorities, and states the periods within which those steps are to be taken. If the timetable is properly adhered to all of the papers for an appeal hearing should be filed no later than seven days before the date of the hearing. There is good reason for this requirement, namely the fact that at some point during the final seven-day period (and the precise date will depend upon pressure of other business) each of the lords justices will do their pre-reading for the hearing. The Court of Appeal operates under huge pressure, and it is the duty of the parties and their representatives to co-operate with the court by ensuring that all documents are filed by the cut-off date. The Practice Direction in force before Practice Direction 52C came into operation contained, what could be called, an ultimate sanction which came into effect if any document had not been filed at the seven day cut-off date. That provision stated that a defaulting party could be required to attend before the presiding lord justice and could be debarred from pursuing or opposing the appeal, as the case may be. See Scribes West Ltd v Anstalt (No.1) [2004] EWCA Civ 835 at [31]–[32]. Practice Direction 52C contains no equivalent provision.

52.12.1.6

Listing of applications and appeals

In Practice Direction (Court of Appeal (Civil Division))[1999] 1 W.L.R. 1027, issued by Lord Woolf M.R. and coming into effect April 19, 1999, all of the principal practice directions which previously applied to proceedings in the Court of Appeal (Civil Appeal) were consolidated. At the time, rules of court relevant to appeals to the Court of Appeal were found in CPR Sch.1 RSC Ord.59 (Appeals to the Court of Appeal). Provisions as to listing and hear-by dates in the Court of Appeal were set out in paras 6.1–6.7 of the consolidating practice direction. RSC Ord.59 was revoked by the statutory instrument which inserted in the CPR, with effect from May 2, 2000, Pt 52 (Appeals) (see SI 2000/221). Part 52 was supplemented by Practice Direction (Appeals) (published in TSO CPR Update (March 2000)). That supplementing practice direction repeated some (but not all) of the provisions in the 1999 Practice Direction concerning listing and hear-by dates in the Court of Appeal, and that remained the case (subject to some amendments) down to October 1, 2012, when Practice Direction 52 was revoked and replaced by Practice Directions 52A to 52E (see paras 15.7–15.9A of PD 52 as published in White Book 2012 Vol.1 para.52PD.56). Provisions as to listing and hear-by dates in the Court of Appeal do not appear in Practice Direction 52C (Appeals to the Court of Appeal). Those matters remain subject to practice directions given by the Master of the Rolls (as formerly reflected in paras 15.7–15.9A of PD 52).

A permission hearing which has been listed by the Court of Appeal will not generally be adjourned for the convenience of counsel. However, the court is sometimes able to list a permission hearing at 9.00 or 9.30am for the assistance of counsel who is in another court later that day. See In the Matter of N and N (Children) [2006] EWCA Civ 1562.

In patent appeals where there are related proceedings before the European Patent Office ("EPO"), the parties must co-operate with one another, with the EPO and with the Court of Appeal in relation to listing: Eli Lilly & Co v Human Genome Sciences [2009] EWCA Civ 168.

52.12.1.7

Hear-by Dates and Listing Windows

The hear-by dates applicable to all appeals and applications filed after March 1, 2003 are set out in Practice Note (Court of Appeal: Listing Windows) (No.2) [2003] 1 W.L.R. 838.

The Court of Appeal will strive to ensure that appeals are generally heard within their listing windows. Applications for a hearing to be fixed beyond the hear-by date will be determined by a single lord justice or the master, but will be granted only for the most compelling reasons. See para.2 of Practice Note (Court of Appeal: Listing Windows) [2001] 1 W.L.R. 1517, which remains in force (as stated in para.2 of the 2003 practice note).

52.12.1.7.1

Private hearings and anonymisation orders (new)

In Pink Floyd Music Limited v EMI Records Limited [2010] EWCA Civ 1429 , Civil Procedure News Issue 1/2011, the Court of Appeal expressed doubts about whether a purely commercial dispute justified secrecy or the redaction of parts of the judgment below. Lord Neuberger MR added that, in any event, commercial sensitivity did not justify having any part of the hearing in private, let alone anonymising the parties. He said that the fact that the first instance judge granted or refused to permit a private hearing or anonymisation cannot be conclusive of such issues in the Court of Appeal. Although the court would normally pay close regard to the judge's original decision, in relation to appeals, the Court of Appeal should not depart from the general rule that litigation is to be conducted in public, unless a judge of that court was persuaded that there were cogent grounds for doing so. Thus, where an applicant in the Court of Appeal wants a private hearing or anonymisation, the correct procedure was to apply for an appropriate order at the time when permission to appeal was sought.

52.12.1.8

Handed down judgments

Where the Court of Appeal reserves judgment and later hands down judgment in writing, the procedure to be followed is set out in Practice Direction 40E (Reserved Judgments). The purpose of supplying draft judgments in advance (and in confidence) is to enable any typographical or similar errors to be notified to the court. However, on rare occasions and in exceptional circumstances the Court of Appeal may properly be invited to reconsider part of the terms of a draft judgment. All communications between the parties and the court concerning the terms of a draft judgment are confidential. See R. (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158; [2010] 3 W.L.R. 554.

52.12.1.9

Notification of settlement

It is the duty of counsel and solicitors on both sides to notify the Court of Appeal immediately, if a case which is listed for hearing settles. Even if the settlement occurs over a weekend, the Court should still be notified immediately. The Royal Courts of Justice has a 24 hour switchboard and arrangements can be made to inform the lords justices of the settlement. If counsel or solicitors fail promptly to notify the Court of a settlement, they are likely to be criticised. See Tasyurdu v SSHD [2003] EWCA Civ 447; Yell Ltd v Garton [2004] EWCA Civ 87.

Likewise, if the main issues in an appeal are resolved and all that remains is the question of costs, the court should be promptly informed. The parties' entitlement to recover costs may be reduced if they fail to keep the court informed: see Red River UK Ltd v Sheikh [2009] EWCA Civ 643 at [34]–[37]; The Times, April 28, 2009. See further Vol.2 paras 11–12 and 11–14.

If negotiations are in progress, which may well lead to the settlement of an appeal listed for hearing in the near future, again the Court of Appeal should be informed promptly. Such information will be treated as "given on a without prejudice basis". The listing will not be altered until it is confirmed that the application or appeal will be withdrawn. See Tasyurdu at [13] and Yell at [2] and [6].

The provisions in Section 6 of Practice Direction 52A (Appeals: General Provisions) deal with the disposal of applications and appeals by consent in appeal proceedings in the Court of Appeal (as well as in appeal proceedings in the High Court and in the county courts). If an appeal is settled at a late stage, but the requirements of the Practice Direction have not been complied with, the Court of Appeal will refuse to grant a consent order administratively. Instead the court will require the parties to attend and explain any breach of the Practice Direction. See R. (Jeyapragash) v Immigration Appeal Tribunal [2004] EWCA Civ 1260.

52.12.1.10

Urgent cases

In cases of genuine urgency an "aspiring appellant" (i.e. one who needs permission) may approach the Court of Appeal by telephone, usually on notice to the other party. If necessary the approach can even be made out of court hours, first through the security officers of the Royal Courts of Justice and thence through a deputy master to a lord justice. See In the Matter of N (a Child) [2007] EWCA Civ 899 at [27].

Rule 52.13 Second appeals to the Court

52.13 †

(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that—

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it.

Statutory restrictions on second appeals

52.13.1 An application for permission to appeal from a decision of the High Court or a county court which was itself made on appeal is a second appeal and must be made to the Court of Appeal; if permission to appeal is granted the appeal will be heard by the Court of Appeal (Practice Direction 52A para.4.7). An application to make a second appeal must identify, in the grounds of appeal, the important point of principle or practice or compelling reason which is said to justify the grant of permission to appeal (Practice Direction 52C para.5A).

The Bowman Report recommended in Chs 2 and 4 that one level of appeal should be the norm. This principle reflects the need for certainty, reasonable expense and proportionality. The review team considered that where there has already been an appeal to some court below the Court of Appeal, a further appeal should only be allowed in special circumstances. This recommendation was adopted in s.55(1) of the Access to Justice Act 1999 [>>Text], which provides:"Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

This provision is substantially repeated in r.52.13.

The Bowman Report highlighted as a particular problem the situation in which the same party brought successive appeals and lost at each stage (see Ch.4, paras 7 and 8). However, the reforms made have gone further than that. Section 55(1) of the Access to Justice Act 1999 [>>Text] has effect even if the would-be appellant won at first instance before losing in the junior appellate court.

The purpose and effect of s.55(1) of the Access to Justice Act 1999 [>>Text] were considered by the Court of Appeal in Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 W.L.R. 1311 at paras 41–46. Brooke L.J. (with whom Lord Woolf M.R. and Peter Gibson L.J. agreed) stated that judges of the quality of lords justices of appeal were a scarce and valuable resource and it was important that they were used effectively. It would no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal was "properly arguable" or had a "real prospect of success". In Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R. 17 the Court of Appeal re-emphasised the general guidance which it had given in Tanfern. The Court of Appeal in Clark gave a single judgment in which it stated (at para.17):

"...the whole thrust of the new appellate reforms ... is to use the time and resources of the judges of the Court of Appeal, and of the lawyers and staff who support them, on matters which really merit the attention of a court of this stature in the judicial hierarchy."

In relation to the unusual situation where some of the matters sought to be raised constitute a first appeal and others constitute a second appeal, the approach of the Court of Appeal in Convergence Group plc v Vellacott [2005] EWCA Civ 290 will probably be followed.

What constitute "first" and "second" appeals for these purposes

52.13.2 For the purposes of s.55 of the 1999 Act [>>Text] and CPR r.52.13, the following are to be treated as appeals to the county court or the High Court (i.e. as "first" appeals): (a) an appeal to the High Court on a point of law pursuant to s.11 of the Tribunals and Inquiries Act 1992; (b) any appeal to the High Court which can colloquially be categorised as an appeal by way of case stated; © an appeal to a county court on a point of law from a decision of a local housing authority pursuant to s.204 of the Housing Act 1996 [>>Text]; (d) any other appeal to the High Court or to a county court from any tribunal or other body or person. See Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R. 17 at para.13 and (in respect of appeals under s.204 of the Housing Act 1996 [>>Text]) Azimi v London Borough of Newham (2001) 33 H.L.R. 51. An appeal from a decision of the High Court or of a county court in any of the above cases is to be treated as a second appeal and subject to the restrictions of s.55 of the 1999 Act [>>Text] and r.52.13.

A more difficult problem is whether an appeal from the High Court to the Court of Appeal pursuant to s.69(8) of the Arbitration Act 1996 [>>Text] is a "second appeal" to which the restrictions contained in s.55 of the Access to Justice Act 1999 [>>Text] apply. This question was discussed by the Court of Appeal obiter but after full argument in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] Q.B. 388. Waller and Swinton Thomas L.JJ considered that s.55 of the Access to Justice Act 1999 [>>Text] had no effect in relation to an appeal to the Court of Appeal under s.69(8) of the Arbitration Act 1996 [>>Text]. Once a party has obtained the leave of a High Court judge pursuant to s.69(8) of the Arbitration Act 1996 [>>Text] to appeal to the Court of Appeal, they are not subsequently required to seek permission from the Court of Appeal (pursuant to s.55 of the Access to Justice Act 1999 [>>Text] and CPR r.52.13) to pursue that same appeal. Arden J. took a different view on this issue.

In Athletic Union of Constantinople v National Basketball Association (No.2) [2002] EWCA Civ 830; [2002] 1 W.L.R. 2863 a differently constituted Court of Appeal unanimously approved the majority view in Henry Boot. Under ss.67(4) and 69(8) of the Arbitration Act 1996 [>>Text] the High Court could grant or refuse permission to appeal to the Court of Appeal. The Court of Appeal had no jurisdiction to override such grant or refusal of permission. The only exception would be in very rare cases where the judge gave inadequate reasons for refusal of permission or where the judge's decision was arbitrary: see North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405; [2002] 1 W.L.R. 2397; CGU International Insurance plc v AstraZeneca Insurance Co Ltd [2006] EWCA Civ 1340. It should be noted that a judge's decision that the parties have, or alternatively that they have not, entered into an exclusion agreement for the purposes of s.69 of the Arbitration Act 1996 [>>Text] is not the same as a grant or refusal of leave to appeal under s.69. Accordingly such a decision is not caught by the restrictions on appeal imposed by that section. See Sumakan Ltd v The Commonwealth Secretariat [2007] EWCA Civ 243; The Times, April 13, 2007.

The second appeals provisions in s.55 of the 1999 Act [>>Text] and CPR r.52.13 do not apply to appeals under s.97(3) of the Patents Act 1977: Smith International Inc v Specialised Petroleum Services Group Ltd [2005] EWCA Civ 1357; [2006] 1 W.L.R. 252.

What constitutes "an important point of principle or practice"?

52.13.3 The first criterion for granting permission for a second appeal is stated in s.55(1)(a) of the 1999 Act [>>Text] and CPR r.52.13(2)(a), namely that the appeal would raise an important point of principle or practice. This means an important point of principle or practice that has not yet been established. An appeal concerning the correct application of a principle or practice whose meaning and scope has already been determined by a higher court does not satisfy s.55(1)(a) [>>Text] or r.52.13(2)(a). See Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 at [18]; [2005] 1 W.L.R. 2070.

The meaning of "some other compelling reason"

52.13.4 The second criterion for granting permission for a second appeal is stated in s.55(1)(b) of the 1999 Act [>>Text] and CPR r.52.13(2)(b), namely that there is "some other compelling reason" for the Court of Appeal to hear the appeal. In Major v Lamyman [2003] EWCA Civ 1701 a High Court judge allowed an appeal on very thin grounds in a substantial matter, without referring to the only two criteria which permitted them to interfere with a judgment following a trial on the facts. The Court of Appeal granted permission for a second appeal on the basis that the appeal raised an important point of practice, alternatively that there was some other compelling reason.

In Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 at [19]–[25]; [2005] 1 W.L.R. 2070 the Court of Appeal discussed the meaning of the phrase "some other compelling reason" in the context of r.52.13(2)(b). The court did not specifically refer to s.55(1)(b) of the Access to Justice Act 1999 [>>Text], but the court's observations must be equally applicable to that statutory provision. It should be remembered that the phrase "some other compelling reason" is of statutory origin, not the creature of the Civil Procedure Rule Committee. Dyson L.J., giving the judgment of the court, elucidated the meaning of that phrase in para.24:

"(1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high...

(2) ...the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal...

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair..."

[The Mould]

Nevertheless the guidance given in Uphill should not be allowed to ossify into rule. The Court of Appeal should be flexible in its interpretation of r.52.13, depending on the provenance of the proposed appeal. See Cramp v Hastings BC [2005] EWCA Civ 1005 at [64]–[67]. In Esure Insurance Ltd v Direct Line Insurance Plc [2008] EWCA Civ 842 the complexity of the case and the real prospect of showing that the judge had incorrectly exercised his appellate function were held to constitute "compelling reasons" for permitting a second appeal: see the judgment of Arden L.J. at [65], with whom Jacob and Maurice Kay L.JJ. agreed.

The argument in R. (PR Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 was that there was "some other compelling reason" for the Court of Appeal to hear an immigration claim that had already been rejected by both the first tier tribunal and by the Upper Tribunal. The claimants claimed that their removal would expose them to the risk of serious harm and would be a violation of the UK's international obligations. The court rejected that test, stating that, in this context, "compelling" meant legally compelling, rather than compelling from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments. The question was not whether the nature of the asserted claim would, if its factual basis were established, risk drastic consequences, but whether there was a compelling reason why the issue on which the claimants had twice failed should be subjected to a third judicial process.

Consequence of purported grant of permission by junior appellate court

52.13.5 If a junior appellate court (in disregard of s.55 of the 1999 Act [>>Text], CPR r.52.13(1) and para.4.7 of Practice Direction 52A) purports to give permission for a second appeal, that grant of permission is a nullity. See Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R. 17 at para.16.

Appeals from the Upper Tribunal to the Court of Appeal

52.13.6 After the Upper Tribunal has heard an appeal from the First-tier Tribunal, any further appeal lies to the Court of Appeal and constitutes a second appeal. Article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order (SI 2008/2834) provides:

"Permission to appeal to the Court of Appeal ... shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that—the proposed appeal would raise some important point of principle or practice; orthere is some other compelling reason for the relevant appellate court to hear the appeal."

This provision mirrors the language of s.55(1) of the Access to Justice Act 1999 [>>Text] and r.52.13. It will be interpreted by the Upper Tribunal and the Court of Appeal in the same way as those provisions.

In R.(PR Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 , Carnwath L.J. explained that it was the intention of the legislature to apply the same test for appeals from Upper Tribunal to the Court of Appeal as applied to second appeals from the High Court and the county courts. However, in this context, by contrast to s.55 of the Access to Justice Act 1999 [>>Text], the more restrictive test was not in terms confined to "second appeals", that is cases where the decision of the Upper Tribunal was itself on appeal. In theory at least, the same test applies even in cases where the Upper Tribunal is acting as a first instance tribunal. For this reason, he said it was convenient to refer to the test in s.13(6) of the Tribunals, Courts and Enforcement Act 2007 [>>Text], not as the "second appeals test", but as the "second-tier appeals test".

More generally, the Court of Appeal will always exercise caution before substituting its own view for that of a specialist tribunal, such as the Upper Tribunal: see Secretary of State for Work and Cooke v Secretary of State for Social Security [2002] 3 All ER 279 at [15] and Pensions v Cattrell [2011] EWCA Civ 988 , at [5]. At paragraph [22] of his judgment in Cattrell, Sir Richard Buxton said that "a second appeal cannot be brought in respect of an important point of principle unless the point is one that is not yet established".

Rule 52.14 Assignment of appeals to the Court of Appeal

52.14 †

(1) Where the court from or to which an appeal is made or from which permission to appeal is sought ("the relevant court") considers that—

(a) an appeal which is to be heard by a county court or the High Court would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it,

the relevant court may order the appeal to be transferred to the Court of Appeal.

(The Master of the Rolls has the power to direct that an appeal which would be heard by a county court or the High Court should be heard instead by the Court of Appeal—see section 57 of the Access to Justice Act 1999 [>>Text].)

(2) The Master of the Rolls or the Court of Appeal may remit an appeal to the court in which the original appeal was or would have been brought.

Leapfrog procedure

52.14.1 Section 57 of the Access to Justice Act 1999 [>>Text] provides:Where in any proceedings in a county court or the High Court a person appeals, or seeks permission to appeal, to a court other than the Court of Appeal or Supreme Court—the Master of the Rolls, orthe court from which or to which the appeal is made, or from which permission to appeal is sought,may direct that the appeal shall be heard instead by the Court of Appeal.The power conferred by subsection (1)(b) [>>Text] shall be subject to rules of court.

The provisions of r.52.14 comprise the "rules of court" referred to in s.57(2) of the Access to Justice Act 1999 [>>Text]. The criteria for leapfrogging an appeal direct to the Court of Appeal are (a) an important point of principle or practice or (b) some other compelling reason. In the context of r.52.14(1)(b) what is meant by the phrase "some other compelling reason"? Presumably this is directed to the importance of the case itself, as opposed to the importance of the issues upon which the appeal will turn. Perhaps if a master gives summary judgment for a very large sum of money, based upon their interpretation of an ambiguous one-off contract, that might be a "compelling reason" for the appeal to lie straight to the Court of Appeal.

In Clark (Inspector of Taxes) v Perks [2001] 1 W.L.R 17 at para.9 the Court of Appeal suggested that the lower court's power to transfer a first appeal to the Court of Appeal should be sparingly used. In any case of doubt the matter should be referred to the Master of the Rolls for consideration, since s.57 of the Access to Justice Act 1999 [>>Text] has conferred an identical power on him.

In In the Matter of Claims Direct Test Cases [2002] EWCA Civ 428 at [23] Lord Phillips M.R. stated his conclusion that s.57 of the Access to Justice Act 1999 [>>Text] "does not permit the "leapfrogging" of an application for permission to appeal, as opposed to an appeal in respect of which permission has been granted".

If the lower court refuses permission to appeal, it does not have jurisdiction (either under s.57 of the Access to Justice Act 1999 [>>Text] or under r.52.14) to direct that any appeal which may subsequently be permitted should go to the Court of Appeal as opposed to a junior appellate court: see 7E Communications Ltd v Vertex Antennentechnik GmbH [2007] EWCA Civ 140; [2007] 1 W.L.R. 2175.

The Court of Appeal may give such directions as are considered appropriate, following receipt of an appeal under the leapfrog procedure (this follows from the Court's general power to give directions "as the case may require" stated in Practice Direction 52C para.2).

52.14.2 In Southwark LBC v Ofogba [2012] EWHC 1620 (QB), the appeal concerned both a money judgment for rent arrears and the county court judge's decision to adjourn the claim for possession. The appeal against the money judgment was a matter for the Court of Appeal, but the appeal against the adjournment lay to the High Court. Hickinbottom J. concluded that all issues should be dealt with in the same forum and ordered that the appeal against the adjournment should also be dealt with by the Court of Appeal.

Rule 52.15 Judicial review appeals

52.15 †

(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.

(1A) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court—

(a) the applicant may apply to the Court of Appeal for permission to appeal;

(b) the application will be determined on paper without an oral hearing.

(2) An application in accordance with paragraphs (1) or (1A) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review.

(3) On an application under paragraph (1), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.

(4) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (3), the case will proceed in the High Court unless the Court of Appeal orders otherwise.

Application for permission to appeal against refusal of permission below

52.15.1 Where a claimant is refused permission under r.54.4 to proceed in a claim for judicial review, they may seek permission to appeal against that refusal. Rule 52.15 modifies the general provisions about permission to appeal (r.52.3) in relation to judicial review appeals.

The particular purpose of r.(1A), however, is to ensure that applications for permission to appeal to the Court of Appeal, following adverse results in both the Upper Tribunal and the Administrative Court, would be dealt with on paper, rather than by way of an oral hearing, thereby addressing the consequences of the decision of the Supreme Court in R. (Cart) v The Upper Tribunal [2011] UKSC 28. See also r.54.7A.

The risk of escalating costs

52.15.2 There is an obvious danger that cost-saving mechanisms (viz. the requirements for permission from an Administrative Court judge and from the Court of Appeal) may end up multiplying costs. Before their claim for judicial review gets under way the applicant might have undergone three preliminary hearings, namely (1) a permission hearing before an Administrative Court judge, (2) a permission hearing before the Court of Appeal and (3) a substantive hearing before the Court of Appeal.

The solution

52.15.3 Rule 52.15(3) empowers the Court of Appeal to cut the Gordian knot and, instead of granting permission to appeal, to grant permission to apply for judicial review. It is respectfully suggested that (except in cases where the court needs to adjourn in order to hear the respondent) this power should generally be exercised, essentially for three reasons: (1) If there is a real prospect of success on the appeal, almost by definition the underlying claim for judicial review must be arguable. (2) It is undesirable that the merits of a judicial review claim should be scrutinised at a full hearing before two or three lords justices before it is adjudicated upon by a first instance judge. (3) It may be thought oppressive to make the claimant pay a third set of costs before their claim reaches the starting line.

The true nature of the application

52.15.4 Although in substance the claimant is trying to persuade the Court of Appeal to grant permission to apply for judicial review, the legal basis of their application should not be overlooked. It is, and can only be, an application for permission to appeal to the Court of Appeal against the refusal by the High Court to grant permission to apply for judicial review. Where (as sometimes happens) the Court of Appeal states that it is refusing permission to apply for judicial review, this is by necessary implication a refusal of permission to appeal to the Court of Appeal. Furthermore, since the only application before the Court of Appeal is an application for permission to appeal, an adverse decision on that application (however formulated) cannot be the subject of an appeal to the House of Lords. See R. v Secretary of State for Trade and Industry, ex p. Eastaway [2000] 1 W.L.R. 2222. If, on the other hand, the Court of Appeal grants permission to appeal but then refuses permission to apply for judicial review at the substantive hearing, there is potentially a right of appeal to the House of Lords. See R. (Burkett) v Hammersmith LBC [2002] 1 W.L.R. 1593; R. (Werner) v Commissioners of Inland Revenue [2002] EWCA Civ 979 per Brooke L.J. at [33].

Where the court wishes to hear the respondent

52.15.5 It is sometimes necessary to hear the respondent, in order to determine whether the original claim is fit for consideration at a substantive judicial review hearing. In those circumstances the normal course is to adjourn the application for permission to appeal to be heard on notice, with the appeal to follow if permission is granted. See R. (Werner) v Commissioners of Inland Revenue [2002] EWCA Civ 979 at [28]–[32].

Time limit for application to Court of Appeal

52.15.6 The time limit for applying to the Court of Appeal is seven days: see r.52.15 (2). The principles governing the grant of any extension of time are as set out in the notes to r.52.6 above.

Consequential directions if permission is granted

52.15.7 Pursuant to s.31A of the Senior Courts Act 1981 [>>Text] (inserted by s.19 of the Tribunals, Courts and Enforcement Act 2007 [>>Text]) (a) certain categories of judicial review applications must be transferred to the Upper Tribunal and (b) certain categories of judicial review applications may be transferred to the Upper Tribunal if this appears to be "just and convenient". A fuller explanation of these provisions is set out in the commentary on Part 54 below.

If the Court of Appeal grants permission to apply for judicial review, then in the exercise of its powers under r.52.15(4) the Court of Appeal should go on to consider the question of transfer to the Upper Tribunal. If the judicial review claim is to remain within the courts, then the Court of Appeal must decide whether that claim should be determined by the Court of Appeal or by the High Court. In taking these decisions, the Court of Appeal will be seeking to find the most convenient and cost-effective course: see R (Shiner) v Commissioners of HM Revenue and Customs [2010] EWCA Civ 558.

Rule 52.16 Who may exercise the powers of the Court of Appeal

52.16 †

(1) A court officer assigned to the Civil Appeals Office who is—

(a) a barrister; or

(b) a solicitor

may exercise the jurisdiction of the Court of Appeal with regard to the matters set out in paragraph (2) with the consent of the Master of the Rolls.

(2) The matters referred to in paragraph (1) are—

(a) any matter incidental to any proceedings in the Court of Appeal;

(b) any other matter where there is no substantial dispute between the parties; and

© the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction.

(3) A court officer may not decide an application for—

(a) permission to appeal;

(b) bail pending an appeal;

© an injunction(GL);

(d) a stay(GL) of any proceedings, other than a temporary stay of any order or decision of the lower court over a period when the Court of Appeal is not sitting or cannot conveniently be convened.

(4) Decisions of a court officer may be made without a hearing.

(5) A party may request any decision of a court officer to be reviewed by the Court of Appeal.

(6) At the request of a party, a hearing will be held to reconsider a decision of—

(a) a single judge; or

(b) a court officer,

made without a hearing.

(6A) A request under paragraph (5) or (6) must be filed within 7 days after the party is served with notice of the decision.

(7) A single judge may refer any matter for a decision by a court consisting of two or more judges.

(Section 54(6) of the Senior Courts Act 1981 [>>Text] provides that there is no appeal from the decision of a single judge on an application for permission to appeal.)

(Section 58(2) of the Senior Courts Act 1981 [>>Text] provides that there is no appeal to the Supreme Court from decisions of the Court of Appeal that—

(a) are taken by a single judge or any officer or member of staff of that court in proceedings incidental to any cause or matter pending before the civil division of that court; and

(b) do not involve the determination of an appeal or of an application for permission to appeal,

and which may be called into question by rules of court. Rules 52.16(5) and (6) provide the procedure for the calling into question of such decisions.)

Court officers

52.16.1 The Civil Procedure Rule Committee may make rules providing for the exercise of "the jurisdiction of any court within the scope of the rules by officers or other staff of the court" (Civil Procedure Rules 1997 Sch.1 para.2). Provisions in this rule enabling qualified court officers with the consent of the Master of the Rolls to "exercise the jurisdiction of the Court of Appeal" with regard to certain matters and on certain conditions were made under that rule-making power. See also r.54.1A (Who may exercise the powers of the High Court) and commentary thereon. Compare r.2.5 (Court staff performing acts of "a formal or administrative character").

The Court

52.16.2 In s.54 of the Senior Courts Act 1981 [>>Text] the "court" means a court of the civil division of the Court of Appeal: s.54(1) [>>Text]. The court may consist of one or more judges of the Court of Appeal: s.54(2) [>>Text]. Directions may be given as to the minimum number of judges of which a court must consist for particular types of proceedings: s.54(3) and (4) [>>Text]. The effect of these provisions is that where a hearing takes place before a single lord justice, that lord justice constitutes the court. Accordingly a hearing to review or reconsider the decision of a court officer pursuant to r.52.16(5) or (6) may take place before one or more lords justices.

Hearing to reconsider a decision of a single lord justice

52.16.3 If a single lord justice reaches a decision on paper, that decision may be reconsidered by the court at an oral hearing: see r.52.16(6)(a). On the other hand, if a single lord justice makes a decision at a hearing, that decision cannot be reconsidered by a court comprising two or more lord justices. This is because the lord justice on the first occasion constitutes the "court": Paragon Finance plc v Noueiri [2001] EWCA Civ 1114. Where parties clearly settle a case on terms that costs are to be determined by a single judge on the papers, it objectively means that the parties are content to leave the matter to be so determined without further recourse to the Court in the form of a hearing to reconsider the decision under r.52.16(6) ( R. (RS (Sri Lanka)) v Secretary of State for the Home Department [2011] EWCA Civ 114, January 24, 2011, CA, unrep.).

Time limit for request

52.16.4 A request for reconsideration pursuant to r.52.16(5) or (6) should be made within seven days: see r.52.16(6A).

III. Provisions about Reopening Appeals

Rule 52.17 Reopening of final appeals

52.17 †

(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—

(a) it is necessary to do so in order to avoid real injustice;

(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and

© there is no alternative effective remedy.

(2) In paragraphs (1), (3), (4) and (6), "appeal" includes an application for permission to appeal.

(3) This rule does not apply to appeals to a county court.

(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.

(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.

(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.

(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.

(8) The procedure for making an application for permission is set out in Practice Direction 52.

Background

52.17.1 Part 52 in its original form did not provide for the re-opening of an appeal after it had been concluded. Nevertheless in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 a five-judge Court of Appeal comprising Lord Woolf C.J., Lord Phillips M.R., Ward L.J., Brooke L.J. and Chadwick L.J. decided that such jurisdiction did exist. The Lord Chief Justice, giving the judgment of the Court, reasoned as follows. The Court of Appeal has two objectives: (a) to correct wrong decisions; (b) to clarify and develop the law and set precedents (see the general introduction to the White Book commentary on Pt 52). An appellate court has the implicit powers to do that which is necessary to achieve those dual objectives. Accordingly the Court of Appeal has a residual jurisdiction to re-open an appeal, in order to avoid real injustice in exceptional circumstances. The Court stressed that this jurisdiction would seldom be exercised. "What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative remedy" (Judgment para.55). The Court also said that the jurisdiction would only be exercised in a case where the House of Lords (i.e. now the Supreme Court)would not give leave to appeal.

There is no discussion in Taylor v Lawrence of the position of junior appellate courts. This was addressed in Seray-Wurie v Hackney LBC [2002] EWCA Civ 909; [2003] 1 W.L.R. 257. Brooke L.J. (with whom Dyson and Simon Brown L.JJ. agreed) said:

"It appears to me that the same logic which drove the Court of Appeal in Taylor v Lawrence...to hold that the Court of Appeal possessed such a power must also drive us to hold that the High Court, which also possesses an inherent jurisdiction to do what it needs must have power to do in order to maintain its character as a court of justice, possesses a similar power. The restrictions on the exercise of the power will be precisely the same."

This jurisdiction appears to have been widely misunderstood. In the first year after the decision in Taylor v Lawrence more than 200 applications to re-open appeals were made to the Court of Appeal, all of them without merit: see Matlaszek v Bloom Camillin [2003] EWCA Civ 154 at [30] and Gregory v Turner [2003] EWCA Civ 183 at [28]; [2003] 1 W.L.R. 1149. It was noted in Bhamjee v Forsdick (No.1) [2003] EWCA Civ 799 that the flow of unmeritorious applications to re-open appeals was imposing an unacceptable burden on the resources of the Court of Appeal.

During 2003 the Civil Procedure Rule Committee formulated a procedure to regulate the exercise of the new jurisdiction which the Court of Appeal had identified in Taylor v Lawrence. This procedure is set out in r.52.17, which came into force on October 6, 2003.

Scope of the rule

52.17.2 The power to re-open an appeal after it has been finally determined is vested only in the Court of Appeal and the High Court. The county courts have no such power. Thus in Gregory v Turner [2003] EWCA Civ 183; [2003] 1 W.L.R. 1149, where it appeared that a circuit judge had wrongly refused leave to appeal against the decision of a deputy district judge, no redress was available to the disappointed party.

Rule 52.17 is drafted in highly restrictive terms, reflecting the reasoning of the Court of Appeal in Taylor v Lawrence. The circumstances described in r.52.17(1) are truly exceptional. Both practitioners and litigants should note the high hurdle to be surmounted and should refrain from applying to re-open the general run of appellate decisions, about which (inevitably) one or other party is likely to be aggrieved.

In Barclays Bank Plc v Guy (No. 2) (Practice Note) [2010] EWCA Civ 1396; [2011] 1 W.L.R. 681, CA, the Court stated that the approach to be adopted by the Court to applications under r.52.17 should be the same whether the determination challenged (1) is a final judgment reached after full argument, or (2) is a refusal of permission to appeal reached without the full merits having been considered.

The first successful application to re-open an appeal came in May 2004: Couwenbergh v Valkova [2004] EWCA Civ 676, in which it was alleged that the original decision had been achieved by means of deceit and perverting the course of justice. That case proceeded to a full appeal in which the appellant was successful: see Couwenbergh v Valkova [2005] EWCA Civ 145.

In In re Uddin (A Child) [2005] EWCA Civ 52; [2005] 1 W.L.R. 2398 the Court of Appeal refused to re-open an appeal on the grounds of fresh evidence. Dame Elizabeth Butler-Sloss P. observed that the hurdle to be surmounted was much greater than the normal test for admitting fresh evidence on appeal.

"...the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined." (para.18)

"In our judgment it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings (first instance or appellate), but that there exists a powerful probability that such a result has in fact been perpetrated. That, in our view, is a necessary but by no means a sufficient condition..." (para 22).

The Court of Appeal adopted a similarly restrictive approach in Richmond upon Thames LBC v Secretary of State for Transport [2006] EWCA Civ 193 (application to re-open appeal against costs orders in the light of subsequent decision of the European Court of Human Rights refused).

In Feakins v DEFRA [2006] EWCA Civ 699 the Court of Appeal gave permission to re-open an appeal which had been heard five years previously. This was an unusual case, in which the Court of Appeal at the original hearing had been misled by untrue evidence. It was "highly likely" that, if the court had known the true position at the original hearing, it would have reached a different decision: see para.38.

In Sir William Jaffray v The Society of Lloyd's [2007] EWCA Civ 586; [2008] 1 W.L.R. 75 the Court of Appeal expressed reservation about Couwenbergh v Valkova, In re Uddin (A Child) and other decisions which proceeded on the basis that the Taylor v Lawrencejurisdiction was available in cases of fraud. Buxton L.J. (delivering the judgment of the court) noted binding authority to the effect that where a judgment is obtained by fraud on the court, the remedy is not an appeal or a re-opened appeal but a collateral action. Nevertheless, reluctantly assuming that the Court of Appeal had jurisdiction to re-open a determined appeal on the grounds of fraud, Buxton L.J. went on to set out strict limitations on the exercise of that jurisdiction. In the light of those limitations the application to re-open the Jaffray appeal was refused. Ten days after Jaffray a different constitution the Court of Appeal considered similar issues obiter. The court (without reference to Jaffray) inclined to the view that the Taylor v Lawrence jurisdiction would be available in cases of fraud, but left the question open: see Bassi v Anas [2007] EWCA Civ 903.

Procedure

52.17.3 Permission is required to apply to re-open an appeal after it has been finally determined. The application for permission must be made in accordance with para.7 of Practice Direction 52A. A copy of the application for permission must not be served on any other party, unless the court so directs: see para.7.2. The great majority of such permission applications are refused upon consideration of the papers, without any need to hold an oral hearing or to notify any other party.

In those rare cases where it might actually be appropriate to re-open an appeal, the judge will direct that the application be served on the other party and will give them the opportunity to make representations: see r.52.17(6) and para.7.3. Those rare cases in which the other party is invited to make representations may well also fall into the exceptional category in which an oral hearing of the permission application is directed under r.52.17(5).

Where permission to appeal has been granted on some issues only

52.17.4 Where permission to appeal has been granted on some issues but refused on other issues, the appellant may rely upon the Taylor v Lawrence jurisdiction and r.52.17 in order to seek to re-open issues upon which permission to appeal has been refused. However, the court will apply a similarly restrictive approach to such applications by an appellant: see Indicii Salus Ltd v Chandrasekaran [2008] EWCA Civ 67 at [28]–[29].

IV. Statutory Rights of Appeal

Rule 52.18 Appeals under the Law of Property Act 1922

52.18 ††

An appeal lies to the High Court against a decision of the Secretary of State under paragraph 16 of Schedule 15 to the Law of Property Act 1922.

Editorial note

52.18.1 This rule replaced RSC Ord.93 r.9 with effect from October 1, 2007: see the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204). Appeals under this rule are assigned to the Chancery Division: see para.5.1(6) of Practice Direction 52D.

Rule 52.19 Appeals from certain tribunals

52.19 †

(1) †A person who was a party to proceedings before a tribunal referred to in section 11(1) of the Tribunals and Inquiries Act 1992 and is dissatisfied in point of law with the decision of the tribunal may appeal to the High Court.

(2) The tribunal may, of its own initiative or at the request of a party to the proceedings before it, state, in the form of a special case for the decision of the High Court, a question of law arising in the course of the proceedings.

Editorial note

52.19.1 This rule replaced RSC Ord.94 rr.8(1) and 9(1) with effect from October 1, 2007: see the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204). In an appeal under this rule the appellant must serve their appellant's notice not only on the respondents, but also upon the person or body appealed from in accordance with para.3.4 of Practice Direction 52D.

Rule 52.20 Appeals under certain planning legislation

52.20 †

(1) †Where the Secretary of State has given a decision in proceedings on an appeal under Part VII of the Town and Country Planning Act 1990 against an enforcement notice—

(a) the appellant;

(b) the local planning authority; or

© another person having an interest in the land to which the notice relates,

may appeal to the High Court against the decision on a point of law.

(2) Where the Secretary of State has given a decision in proceedings on an appeal under Part VIII of that Act against a notice under section 207 of that Act—

(a) the appellant;

(b) the local planning authority; or

© any person (other than the appellant) on whom the notice was served,

may appeal to the High Court against the decision on a point of law.

(3) †Where the Secretary of State has given a decision in proceedings on an appeal under section 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990 against a listed building enforcement notice—

(a) the appellant;

(b) the local planning authority; or

© any other person having an interest in the land to which the notice relates,

may appeal to the High Court against the decision on a point of law.

Editorial note

52.20.1 This rule replaced RSC Order 94 rr.12 and 13 with effect from October 1, 2007: see the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204). Further procedural rules governing planning appeals (with effect from October 1, 2007) are set out in para.26.1 of Practice Direction 52D. The provisions of Practice Direction 52E apply to an appeal by way of case stated under legislation referred to in r.52.20.

Practice Direction 52A—Appeals: General Provisions

52APD.1

This Practice Direction supplements Part 52

Contents of this Practice Direction

This Practice Direction is divided into the following sections—

1. Practice Directions supplementing Part 52

2. Introduction

3. Destinations of appeal

4. Obtaining permission to appeal

5. Skeleton arguments

6. Disposing of applications and appeals by consent

7. Reopening appeals

8. Transitional provisions

52APD.2

Section 1 Practice Directions supplementing Part 52

1.1 There are five Practice Directions supplementing Part 52—

· PD 52A — Appeals: general provisions

· PD 52B — Appeals in the county courts and the High Court

· PD 52C — Appeals to the Court of Appeal

· PD 52D — Statutory appeals and appeals subject to special provision

· PD 52E — Appeals by way of case stated

[The Mould]

52APD.3

Section 2 Introduction

2.1 These Practice Directions apply to all appeals to which Part 52 applies.

2.2 Part 52 complements the provisions of sections 54 to 57 of the Access to Justice Act 1999 [>>Text] and provides a uniform procedure for appeals in the county courts and the High Court and a modified procedure for the Civil Division of the Court of Appeal. Part 52 does not apply to—

(a) family proceedings in the High Court or county courts but does apply to appeals to the Court of Appeal from decisions made in family proceedings with such modifications as may be required;

(b) appeals in detailed assessment proceedings against the decision of an authorised court officer.

52APD.4

Section 3 Destinations of Appeal

3.1 Section 56 of the Access to Justice Act 1999 [>>Text] enables the Lord Chancellor by Order to specify the destinations of appeal in different cases. The Access to Justice Act 1999 (Destination of Appeals) Order 2000, SI 2000/1071 made under section 56 [>>Text], specifies the general destinations of appeal which apply subject to any statutory provision to the contrary. The destinations of appeal provided by that Order are explained in the following paragraphs of this section of this Practice Direction.

3.2 "Statutory Appeals" and "Appeals by way of case stated" are dealt with in PD52D—refer to those provisions for the appropriate court to which such an appeal may lie.

3.3 The court or judge to which an appeal is to be made (subject to obtaining any necessary permission) is set out in the tables below—

· Table 1 deals with appeals in proceedings other than family and insolvency proceedings;

· Table 2 deals with appeals in insolvency proceedings; and

· Table 3 deals with appeals in family proceedings which may be heard in the Family Division and to which the CPR may apply.

3.4 Definitions of terms and abbreviations used in Tables 1, 2 and 3:

"Destination": the court to which the appeal lies.

"Pt 7 Claim (not MT)": Part 7 Claim, other than a claim allocated to the multi-track.

"Pt 7 Claim (MT)": Part 7 Claim, allocated to the multi-track.

"Pt 8 Claim (not MT)": Part 8 Claim, other than a claim allocated to the multi-track.

"Pt 8 Claim (MT)": Part 8 Claim, allocated to the multi-track.

"D.J.": District judge.

"C.J.": Circuit judge including a recorder or a district judge who is exercising the jurisdiction of a Circuit judge with the permission of the Designated Civil Judge in respect of the case.

"C.J. (C.C.)": Circuit judge in the county court.

"Master": Master, district judge sitting in a district registry or any other judge referred to in article 2 of the Destination of Appeals Order.

"Final": A final decision within the meaning of paragraphs 3.6 to 3.8 of this Practice Direction.

"Interim": A decision that is not a final decision within the meaning of paragraphs 3.6 to 3.8 of this Practice Direction.

"H.C.J.": single judge of the High Court.

"H.C.J.(F.D.): single judge of the family Division of the High Court.

"C.A.": Court of Appeal.

"Other": Claims or originating or pre-action applications started otherwise than by a Part 7 or Part 8 claim (for example an application under Part 23).

"Specialist": Specialist proceedings (under the Companies Act 1985 or the Companies Act 1989 or to which Sections I, II or III of Part 57 or any of Parts 58, 59, 60, 62 or 63 apply).

(Note: Tables 1, 2 and 3 do not include so-called "leap frog" appeals either to the Court of Appeal pursuant to section 57 of the Access to Justice Act 1999 [>>Text] or to the Supreme Court pursuant to section 13 of the Administration of Justice Act 1969 [>>Text].)

3.5 The destinations in the tables set out below apply whether the decision is interim or final. For the meaning of "final decision" for the purposes of this table see paragraphs 3.6 to 3.8 below.Table 1: Proceedings other than family or insolvency proceedings

Court Deciding judge Nature of claim Interim / final Destination

County D.J. Pt 7 Claim Interim C.J. (C.C.)

Pt 7 Claim (not MT) Final

Pt 7 Claim (MT) Final C.A.

Pt 8 Claim Interim / final C.J. (C.C.)

Other Interim / final

Specialist Interim

Final C.A.

C.J. Pt 7 Claim Interim H.C.J.

Pt 7 Claim (not MT) Final

Pt 7 Claim (MT) Final C.A.

Pt 8 Claim Interim / final H.C.J.

Other Interim / final

Specialist Interim

Final C.A.

High Master Pt 7 Claim Interim H.C.J.

Pt 7 Claim (not MT) Final

Pt 7 Claim (MT) Final C.A.

Pt 8 Claim Interim / final H.C.J.

Other Interim / final

Specialist Interim

Final C.A.

H.C.J. Any Interim / final C.A.

Table 2: Insolvency proceedings

Court Deciding judge Destination

County D.J. or C.J. H.C.J.

High Registrar

H.C.J. C.A.

Table 3: Family Proceedings in the Principal Registry of the Family Division and to which the CPR will applyThe proceedings to which this table applies include proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 and proceedings under the Trusts of Land and Appointment of Trustees Act 1996.

Deciding judge Nature of claim Decision under appeal Destination

D.J. Part 7 Claim (not MT) Any decision other than a final decision H.C.J.(F.D.)

Pt 7 Claim (MT) Final decision C.A.

Part 8 Claim (not MT) Any decision H.C.J.(F.D.)

Part 8 Claim (MT)

H.C.J.(F.D.) Any Any decision C.A.

3.6 A "final decision" is a decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it.

3.7 A decision is to be treated as a final decision for destination of appeal purposes where it—

(a) is made at the conclusion of part of a hearing or trial which has been split into parts; and

(b) would, if it had been made at the conclusion of that hearing or trial, have been a final decision.

3.8 (1) The following are examples of final decisions—

· a judgment on liability at the end of a split trial;

· a judgment at the conclusion of an assessment of damages following a judgment on liability.

(2) The following are examples of decisions that are not final—

· a case management decision (within the meaning of paragraph 4.6);

· a grant or refusal of interim relief;

· summary judgment;

· striking out a claim or statement of case;

· a summary or detailed assessment of costs;

· an order for the enforcement of a final decision.

3.9 Filing appellant's notice in wrong court

(1) Where a party attempts to file an appellant's notice in a court which does not have jurisdiction to issue the notice, a court officer may notify that party in writing that the appeal court does not have jurisdiction in respect of the notice.

(2) Before notifying a person under paragraph (1) the court officer must confer–

(a) with a judge of the appeal court; or

(b) where the Court of Appeal is the appeal court, with a court officer who exercises the jurisdiction of that Court under rule 52.16.

(3) Where a court officer, in the Court of Appeal, notifies a person under paragraph (1), rule 52.16(5) and (6) shall not apply.

52APD.5

Section 4 Obtaining permission to appeal

Where to apply for permission

4.1 An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or

(b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court in accordance with rule 52.4.

52APD.6

Form

4.2 An application for permission to appeal to the appeal court must be made using an appellant's notice (Form N161 or N164 (small claims track)).

52APD.7

Appeals from Masters and district judges of High Court

4.3 In relation to appeals from Masters or district judges of the High Court: appeals, applications for permission and any other applications in the appeal may be heard and directions in the appeal may be given by a High Court Judge or by any person authorised under section 9 of the Senior Courts Act 1981 [>>Text] to act as a judge of the High Court.

52APD.8

Where the lower court is a county court

4.4 Where the lower court is a county court—

(a) subject to sub-paragraph (b), appeals and applications for permission to appeal will be heard by a High Court Judge or by a person authorised under paragraphs (1), (2) or (4) of the Table in section 9(1) of the Senior Courts Act 1981 [>>Text] to act as a judge of the High Court;

(b) an appeal or application for permission to appeal from the decision of a recorder may be heard by a Designated Civil Judge who is authorised under paragraph (5) of the Table in section 9(1) of the Senior Courts Act 1981 [>>Text] to act as a judge of the High Court; and

© other applications in the appeal may be heard and directions in the appeal may be given either by a High Court Judge or by any person authorised under section 9 of the Senior Courts Act 1981 [>>Text] to act as a judge of the High Court.

4.5 The Designated Civil Judge in consultation with the Presiding Judge has responsibility for allocating appeals from decisions of district judges to circuit judges.

52APD.9

Appeal in relation to case management decision

4.6 Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether—

(a) the issue is of sufficient significance to justify the costs of an appeal;

(b) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision;

© it would be more convenient to determine the issue at or after trial.Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts' reports, directions about the timetable of the claim, adding a party to a claim and security for costs.

[The Mould]

52APD.10

Second appeal

4.7 An application for permission to appeal from a decision of the High Court or a county court which was itself made on appeal is a second appeal and must be made to the Court of Appeal. If permission to appeal is granted the appeal will be heard by the Court of Appeal.

52APD.11

Section 5 Skeleton arguments

5.1 (1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must—

· be concise;

· both define and confine the areas of controversy;

· be set out in numbered paragraphs;

· be cross-referenced to any relevant document in the bundle;

· be self-contained and not incorporate by reference material from previous skeleton arguments;

· not include extensive quotations from documents or authorities.

(3) Documents to be relied on must be identified.

(4) Where it is necessary to refer to an authority, a skeleton argument must—

(a) state the proposition of law the authority demonstrates; and

(b) identify the parts of the authority that support the proposition.If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.

(5) The cost of preparing a skeleton argument which—

(a) does not comply with the requirements set out in this paragraph; or

(b) was not filed within the time limits provided by this Practice Direction (or any further time granted by the court),will not be allowed on assessment except as directed by the court.

5.2 The appellant should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.

5.3 Any statement of costs must show the amount claimed for the skeleton argument separately.

52APD.12

Section 6 Disposing of applications and appeals by consent

Dismissal of applications or appeals by consent

6.1 An appellant who does not wish to pursue an application or appeal may request the appeal court to dismiss the application or the appeal. If such a request is granted it will usually be subject to an order that the appellant pays the costs of the application or appeal.

6.2 If the appellant wishes to have the application or appeal dismissed without costs, his request must be accompanied by a letter signed by the respondent stating that the respondent so consents.

6.3 Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted the application or appeal will be dismissed.

52APD.13

Allowing unopposed appeals or applications on paper

6.4 The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.

52APD.14

Disposal of applications and appeals involving children or protected parties

6.5 Where one of the parties is a child or protected party, any disposal of an application or the appeal requires the court's approval. A draft order signed by the parties' solicitors should be sent to the appeal court, together with an opinion from the advocate acting on behalf of the child or protected party and, in the case of a protected party, any relevant documents prepared for the Court of Protection.

52APD.15

Section 7 Reopening appeals (Rule 52.17)

7.1 A party applying for permission to reopen an appeal or an application for permission to appeal must apply for such permission from the court whose decision the party wishes to reopen.

7.2 The application for permission must be made by application notice and be supported by written evidence, verified by a statement of truth. A copy of the application for permission must not be served on any other party to the original appeal unless the court so directs.

7.3 Where the court directs that the application for permission is to be served on another party, that party may, within 14 days of the service on him of the copy of the application, file and serve a written statement either supporting or opposing the application.

7.4 The application for permission will be considered on paper by a single judge.

52APD.16

Section 8 Transitional provisions

8.1 This Practice Direction and Practice Directions 52B, 52C, 52D and 52E shall come into force on 1 October 2012 and shall apply to all appeals where—

(a) the appeal notice was filed; or

(b) permission to appeal was givenon or after that date.

8.2 The appeal court may at any time direct that, in relation to any appeal, one or more of Practice Directions 52A, 52B, 52C, 52D or 52E shall apply irrespective of the date on which the appeal notice was filed or permission to appeal was given.

Practice Direction 52B—Appeals in the county courts and High Court

52BPD.1

This Practice Direction supplements Part 52

Contents of this Practice Direction

This Practice Direction is divided into the following sections—

1. Application

2. Venue for appeals and filing of notices and applications

3. Extending time in which to appeal

4. Initiating an appeal

5. Case managing the appeal; orders of the court

6. Conduct of the appeal

7. Determination of applications

8. Hearings

52BPD.2

Section 1 Application

1.1 This Practice Direction applies to—

(a) appeals within a county court (from a District Judge to a Circuit Judge);

(b) appeals from a county court to the High Court; and

© appeals within the High Court (from a Master, a District Judge sitting in a District Registry, a Registrar in Bankruptcy, a Registrar of the Companies Court, a Costs Judge or an officer of the High Court to a judge of the High Court).

52BPD.3

Section 2 Venue for appeals and filing of notices and applications

2.1 Appeals within a county court, appeals from a county court and appeals within the High Court to a judge of the High Court must be brought in the appropriate appeal centre and all other notices (including any respondent's notice) and applications must be filed at that appeal centre. The venue for an appeal within a county court will be determined by the Designated Civil Judge and may be different from the appeal centre.

2.2 The tables at the end of this Practice Direction set out the Appeal Centres for each circuit.

52BPD.4

Section 3 Extending time in which to appeal

3.1 A party may apply to the lower court for an extension of time in which to file an appellant's notice. The application must be made at the same time as the appellant applies to the lower court for permission to appeal.

3.2 Where the time for filing an appellant's notice has expired, the appellant must include an application for an extension of time within the appellant's notice (Form N161 or, in respect of a small claim, Form N164) stating the reason for the delay and the steps taken prior to making the application.

3.3 The court may make an order granting or refusing an extension of time and may do so with or without a hearing. If an order is made without a hearing, any party seeking to set aside or vary the order may apply, within 14 days of service of the order, for a hearing.

52BPD.5

Section 4 Initiating an appeal

4.1 An appellant's notice (Form N161 or, in respect of a small claim, Form N164) must be filed and served in all cases. The appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate.

4.2 Documents to be filed with the appellant's notice: The appellant must file with the appellant's notice—

(a) three copies of the appellant's notice and one additional copy for each respondent;

(b) a copy of the sealed order under appeal;

© where an application was made to the lower court for permission to appeal, a copy of any order granting or refusing permission to appeal together with a copy of the reasons, if any, for allowing or refusing permission to appeal; and

(d) grounds of appeal, which must be set out on a separate sheet attached to the appellant's notice and must set out, in simple language, clearly and concisely, why the order of the lower court was wrong or unjust because of a serious procedural or other irregularity (Rule 52.11(3)).

4.3 Applications in the appeal: Any application to be made in the appeal (for example, for a stay of the order of the lower court, for an extension of time) should be included within the appellant's notice. Where the applicant qualifies for fee remission, any application for a transcript of the judgment of the lower court at public expense should be made within the appellant's notice.

52BPD.6

Section 5 Case managing the appeal; orders of the court

5.1 The appeal court may make orders for the case management of an appeal.

5.2 When making a case management order, the court may dispense with any requirements of or directions made in this Practice Direction.

52BPD.7

Section 6 Conduct of the appeal

6.1 Service of appellant's notice on the respondent: The appellant must file a certificate of service of the appellant's notice with the court as soon as practicable after service.

6.2 Transcript of the judgment of the lower court or other record of reasons: Except where the claim has been allocated to the small claims track, the appellant must obtain a transcript or other record of reasons of the lower court as follows—

(a) where the judgment has been officially recorded, the appellant must apply for an approved transcript as soon as possible and, in any event, within 7 days of the filing of the appellant's notice;

(b) where the judgment under appeal has been handed down in writing, the appellant must obtain and retain a copy of the written judgment;

© in any other case, the appellant must cause a note of the judgment under appeal to be made and typed. The parties to the appeal should agree the note, which should then be sent to the judge of the lower court for approval. The parties and their advocates have a duty to make, and to co-operate in agreeing, a note of the judgment.

6.3 Appeal bundle: As soon as practicable, but in any event within 35 days of the filing of the appellant's notice, the appellant must file an appeal bundle which must contain only those documents relevant to the appeal. The appeal bundle must be paginated and indexed.

6.4 Documents relevant to the appeal:

(1) Subject to any order made by the court, the following documents must be included in the appeal bundle—

(a) a copy of the appellant's notice;

(b) a copy of any respondent's notice;

© a copy of any appellant's or respondent's skeleton argument;

(d) a copy of the order under appeal;

(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge's reasons, if any, for granting or refusing permission;

(f) a copy of any order allocating the case to a track;

(g) a transcript of the judgment of the lower court or other record of reasons (except in appeals in cases which were allocated to the small claims track and subject to any order of the court).

(2) The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal—

(a) statements of case;

(b) application notices;

© other orders made in the case;

(d) a chronology of relevant events;

(e) witness statements made in support of any application made in the appellant's notice;

(f) other witness statements;

(g) any other documents which any party considers would assist the appeal court.

6.5 Service of the appeal bundle: A copy of the appeal bundle must be served on each respondent—

(a) where permission to appeal was granted by the lower court, at the same time as filing the appeal bundle;

(b) where the appeal court has granted permission to appeal, as soon as practicable after notification and in any event within 14 days of the grant of permission;

© where the appeal court directs that the application for permission to appeal is to be heard on the same occasion as the appeal, as soon as practicable and in any event within 14 days after notification of the hearing date.

6.6 Late documents: Any relevant document which is obtained or created after the appeal bundle has been filed (for example a respondent's notice or a skeleton argument) should be added to the appeal bundle as soon as practicable and, in any event, no less than 7 days before the hearing of the appeal or any application.

52BPD.8

Section 7 Determination of applications

7.1 Applications made in the appeal, including applications for permission to appeal under rule 52.3(2)(a) or rule 52.5(3), may be determined with or without a hearing.

7.2 Where the court refuses an application for permission to appeal without a hearing, the appellant (or, where appropriate, the respondent) may request the application to be reconsidered at a hearing.

7.3 Where the court determines any other application without hearing the respondent (including an application for permission to bring the appeal out of time) any party affected by the determination may apply to have the order set aside or varied.

7.4 Any request or application made under this section must be made within 7 days of service of notification of the determination upon the person making the application. Where any such request or application is made—

(a) a copy of the request or application must be served on all other parties at the same time: and

(b) the court will give directions for the determination of the application.

52BPD.9

Section 8 Hearings

8.1 Attendance at permission hearings: Where a respondent to an appeal or cross-appeal attends the hearing of an application for permission to appeal, costs will not be awarded to the respondent unless—

(a) the court has ordered or requested attendance by the respondent;

(b) the court has ordered that the appeal be listed at the same time as the determination of other applications;

© the court has ordered that the hearing of the appeal will follow the hearing of the application if permission is granted; or

(d) the court considers it just, in all the circumstances, to award costs to the respondent.

8.2 Respondent's documents: A respondent who has been served with an appeal bundle and who considers that relevant documents have been omitted may file and serve on all parties a respondent's supplemental appeal bundle containing copies of other relevant documents. The supplemental appeal bundle must be filed and served as soon as practicable after service of the appeal bundle, but in any event not less than 7 days before the hearing.

8.3 Skeleton arguments: Subject to any order of the court, the parties to the appeal should file and serve skeleton arguments only where—

(a) the complexity of the issues of fact or law in the appeal justify them; or

(b) skeleton arguments would assist the court in respects not readily apparent from the papers in the appeal.TABLE A: TABLE OF APPEAL CENTRES FOR EACH CIRCUIT

Circuit Court Appeal Centre

Midland Birmingham CJC Birmingham CJC

Boston Lincoln

Burton-upon-Trent Nottingham

Buxton Nottingham

Chesterfield Nottingham

Coventry Coventry

Derby Nottingham

Dudley Walsall

Hereford Worcester

Kettering Northampton

Kidderminster Worcester

Leicester Leicester

Lincoln Lincoln

Mansfield Nottingham

Northampton Northampton

Nottingham Nottingham

Nuneaton Coventry

Redditch Worcester

Stafford Stoke-on-Trent

Stoke-on-Trent Stoke-on-Trent

Telford Telford

Walsall Walsall

Warwick Coventry

Wolverhampton Walsall

Worcester Worcester

North East Barnsley Sheffield

Bradford Bradford

Darlington Teesside

Doncaster Sheffield

Durham Newcastle-upon-Tyne

Gateshead Newcastle-upon-Tyne

Grimsby Kingston-upon-Hull

Halifax Halifax

Harrogate Leeds

Hartlepool Teesside

Huddersfield Huddersfield

Kingston-upon-Hull Kingston-upon-Hull

Leeds Leeds

Morpeth Newcastle-upon-Tyne

Newcastle-upon-Tyne Newcastle-upon-Tyne

North Shields Newcastle-upon-Tyne

Rotherham Sheffield

Scarborough Leeds

S****horpe Kingston-upon-Hull

Sheffield Sheffield

Skipton Skipton

South Shields Newcastle-upon-Tyne

Sunderland Newcastle-upon-Tyne

Teesside Teesside

Wakefield Leeds

York Leeds

Northern Accrington Preston

Altrincham Manchester CJC

Barrow-in-Furness Carlisle

Birkenhead Liverpool

Blackburn Preston

Blackpool Preston

Bolton Manchester CJC

Burnley Preston

Bury Manchester CJC

Carlisle Carlisle

Chester CJC Chester CJC

Crewe Chester CJC

Kendal Carlisle

Lancaster Preston

Liverpool Liverpool

Macclesfield Chester CJC

Manchester CJC Manchester CJC

Oldham Manchester CJC

Preston Preston

St Helens Liverpool

Stockport Manchester CJC

Tameside Manchester CJC

Warrington Chester CJC

West Cumbria Carlisle

Wigan Liverpool

Wales Aberystwyth Swansea

Blackwood Cardiff CJC

Brecknock Swansea

Bridgend Cardiff CJC

Caernarfon Wrexham

Cardiff Cardiff CJC

Carmarthen Swansea

Conwy & Colwyn Wrexham

Haverfordwest Swansea

Llanelli Swansea

Llangefni Wrexham

Merthyr Tydfil Cardiff CJC

Mold Wrexham

Neath & Port Talbot Swansea

Newport (Gwent) Cardiff CJC

Pontypridd Cardiff CJC

Rhyl Wrexham

Swansea Swansea

Welshpool & Newtown Wrexham

Wrexham Wrexham

Western Aldershot & Farnham Aldershot & Farnham

Barnstaple Barnstaple

Basingstoke Basingstoke

Bath Bristol CJC

Bodmin Bodmin

Bournemouth Bournemouth

Bristol Bristol CJC

Cheltenham Bristol CJC

Exeter Exeter

Gloucester Bristol CJC

Newport (Isle of Wight) Newport (Isle of Wight)

Plymouth Plymouth

Portsmouth Portsmouth

Salisbury Salisbury

Southampton Southampton

Swindon Swindon

Taunton Bristol CJC

Torquay & Newton Abbot Torquay & Newton Abbot

Trowbridge Trowbridge

Truro Truro

Weston-Super-Mare Bristol CJC

Weymouth & Dorchester Weymouth & Dorchester

Winchester Winchester

Yeovil Bristol

South East Aylesbury Oxford

Banbury Oxford

Barnet Barnet

Basildon Southend

Bedford Luton

Bow Bow

Brentford Brentford

Brighton Brighton

Bromley Bromley

Bury St Edmunds Cambridge

Cambridge Cambridge

Canterbury Canterbury

Central London CJC Central London CJC

Chelmsford Southend

Chichester Chichester

Clerkenwell & Shoreditch Clerkenwell & Shoreditch

Colchester Southend

Croydon Croydon

Dartford Dartford

Eastbourne Eastbourne

Edmonton Edmonton

Guildford Guildford

Hastings Hastings

Hertford Luton

High Wycombe Oxford

Horsham Horsham

Hove Hove

Ipswich Norwich

Kingston-upon-Thames Kingston-upon-Thames

King's Lynn Norwich

Lambeth Lambeth

Lewes Lewes

Luton Luton

Maidstone Maidstone

Mayor's and City Mayor's and City

Medway Medway

Milton Keynes Oxford

Norwich Norwich

Oxford Oxford

Peterborough Cambridge

Reading Oxford

Reigate Reigate

Romford Romford

Slough Oxford

Southend Southend

St Albans Luton

Staines Staines

Thanet Thanet

Tunbridge Wells Tunbridge Wells

Uxbridge Uxbridge

Wandsworth Wandsworth

Watford Watford

Willesden Willesden

West London West London

Woolwich Woolwich

Worthing Worthing

TABLE B: APPEALS FROM A COUNTY COURT OR WITHIN THE HIGH COURT: APPEAL CENTRES FOR EACH CIRCUIT

[The Mould]

Circuit Appeal Centres

Midland Circuit Birmingham

Nottingham

North Eastern Circuit Leeds

Newcastle

Sheffield

Northern Circuit Manchester

Liverpool

Preston

Chester

Wales Circuit Cardiff

Swansea

Mold

Western Circuit Bristol

Exeter

Winchester

South Eastern Circuit Royal Courts of Justice

Lewes

Luton

Norwich

Reading

Chelmsford

St Albans

Maidstone

Oxford

Practice Direction 52C—Appeals to the Court of Appeal

52CPD.1

This Practice Direction supplements Part 52

Contents of this Practice Direction

This Practice Direction is divided into the following sections:

1 Introduction and Interpretation

2 Starting an appeal to the Court of Appeal, Grounds of Appeal and Skeleton Arguments

3 Respondent's notice and respondent's skeleton argument

4 Procedure where permission to appeal is sought from the Court of Appeal

5 Timetable

6 Management of the appeal

7 Bundles, amendment and supplementary skeleton arguments

52CPD.2

Section 1 Introduction and Interpretation

1 In this Practice Direction—

"appeal notice" means either an appellant's notice in Form N161 or a respondent's notice in Form N162;

"appellant's notice" means an appeal notice filed by an appellant and a "respondent's notice" means an appeal notice filed by a respondent;

"hearing date" means the date on which the appeal is listed to be heard, including a "floating" date over two or more days;

"listing window notification" means the letter sent by the Civil Appeals Office in accordance with Section 5: Timetable Part 1 notifying the parties of the window within which the appeal is likely to be heard; and "date of the listing window notification" means the date of such letter;

"replacement skeleton argument" means a skeleton argument which has been amended in order to include cross references to the appeal bundle and is lodged and served in accordance with the timetable at Section 5 Part 2.

2 The court may make such directions as the case may require and such directions will prevail over any provision of this practice direction.

52CPD.3

Section 2 Starting an appeal to the Court of Appeal

Filing the appellant's notice and accompanying documents

3 (1) An appellant's notice (Form N161) must be filed and served in all cases. The appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission certificate.

(2) The appellant's notice and accompanying documents must be filed in the Civil Appeals Office Registry, Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL.

(3) At the same time as filing an appellant's notice, the appellant must provide for the use of the court three copies of the appellant's notice and one copy of each of the following—

(a) the sealed order or tribunal determination being appealed;

(b) any order granting or refusing permission to appeal, together with a copy of the judge's or tribunal's reasons for granting or refusing permission to appeal;

© any witness statements or affidavits relied on in support of any application included in the appellant's notice;

(d) in cases where the decision of the lower court was itself made on appeal, the first order, the reasons given by the judge who made it, and the appellant's notice of appeal against that order;

(e) in a claim for judicial review or a statutory appeal, the original decision which was the subject of the application to the lower court;

(f) the order allocating the case to a track (if any);

(g) the appellant's skeleton argument in support of the appeal;

(h) the approved transcript of the judgment.

(4) The appellant must also provide to the court one copy of the appellant's notice for each respondent for sealing by the court and return to the appellant for service.

(5) Where the appellant applies for permission to appeal, additional documents are required: see Section 4 of this Practice Direction.

(6) Provisions in relation to the skeleton argument are set out in paragraph 31.

52CPD.4

Extension of time for filing appellant's notice

4 (1) Where the time for filing an appellant's notice has expired, the appellant must—

(a) file the appellant's notice; and

(b) include in that appellant's notice an application for an extension of time.

(2) The appellant's notice must state the reason for the delay and the steps taken prior to the application being made.

(3) Where the appellant's notice includes an application for an extension of time and permission to appeal has been given or is not required, the respondent has the right to oppose that application and to be heard at any hearing of that application. In respect of any application to extend time—

(a) The respondent must—be served with a copy of any evidence filed in support of the application; andinform the court in writing of any objections to the grant of the extension of time within 7 days of being served with the appellant's notice.

(b) A respondent who unreasonably opposes an application for an extension of time may be ordered to pay the costs of the application.

© An application for an extension of time will normally be determined without a hearing unless the court directs otherwise.

52CPD.5

Grounds of Appeal

5 (1) The grounds of appeal must identify as concisely as possible the respects in which the judgment of the court below is—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity,as required by rule 52.11(3).

(2) The reasons why the decision under appeal is wrong or unjust must not be included in the grounds of appeal and must be confined to the skeleton argument.

52CPD.5A

Second appeals

5A An application to make a second appeal must identify in the grounds of appeal—

(a) the important point of principle or practice, or

(b) the compelling reasonwhich is said to justify the grant of permission to appeal.

52CPD.6

Non-availability of documents

6 If the appellant is unable to provide any of the necessary documents in time, the appellant must complete the appeal notice on the basis of the available documents. The notice may be amended subsequently with the permission of the court (see paragraph 30).

52CPD.7

Service of appellant's notice on the respondent

7.1 The Civil Appeals Office will not serve documents. Where service is required by the Rules or this Practice Direction, it must be effected by the parties.

7.2 The evidence in support of any application made in an appellant's notice must be filed and served with the appellant's notice.

7.3 An application for an order to dispense with service of the appellant's notice under rule 6.28 must be made in the appeal notice or, thereafter, by application notice under Part 23.

52CPD.8

Section 3 Respondent's notice (Rule 52.5) and respondent's skeleton argument

Respondent's notice

8 (1) A respondent who seeks to appeal against any part of the order made by the court below must file an appeal notice.

(2) A respondent who seeks a variation of the order of the lower court must file an appeal notice and must obtain permission to appeal.

(3) A respondent who seeks to contend that the order of the court below should be upheld for reasons other than those given by that court must file a respondent's notice.

(4) The notice may be amended subsequently with the permission of the court (see paragraph 30).

52CPD.9

Skeleton argument to be lodged with the respondent's notice

9 A respondent who files a respondent's notice must, within 14 days of filing the notice, lodge a skeleton argument with the court and serve a copy of the skeleton argument on every other party to the appeal.(Provisions in relation to the skeleton argument are set out in paragraph 31.)

52CPD.10

Documents to be filed with respondent's notice

10 The respondent must file the following documents with the respondent's notice—

(a) two additional copies of the respondent's notice for the court; and

(b) one copy each for the appellant and any other respondents.

52CPD.11

Applications within respondent's notice

11 (1) A respondent may include an application within a respondent's notice.

(2) The parties must consider whether it would be more convenient for any application to be listed with the appeal or whether the application needs to be considered in advance.

(3) Where parties consider that the time estimate for the appeal will be affected by listing the application with the appeal, they must inform the court without delay.

52CPD.12

Time limits: rule 52.5(4) and (5)

12 Where an extension of time is required, the respondent must apply in the respondent's notice and explain the delay.

52CPD.13

Respondent's skeleton argument (where no respondent's notice filed)

13 (1) In all cases where the respondent is legally represented and proposes to address the court, the respondent must lodge and serve a skeleton argument.

(2) A respondent's skeleton argument must be lodged and served in accordance with Part 1 of the Timetable in Section 5.

(Provisions in relation to the skeleton argument are set out in paragraph 31.)

52CPD.14

Section 4 Procedure where permission to appeal is sought from the Court of Appeal

Documents for use on an application for permission

14 (1) Within 14 days of filing the appeal notice the appellant must lodge a bundle containing only those documents which are necessary for the court to determine that application.

(2) The bundle of documents must—

(a) be paginated and in chronological order;

(b) contain an index at the front.

52CPD.15

Determination of applications for permission to appeal

15 (1) Applications for permission to appeal will generally be considered by the court without a hearing in the first instance. The court will notify the parties of the decision and the reasons for it.

(2) If permission is refused the appellant is entitled to have the decision reconsidered at an oral hearing, except where rule 52.3(4A) (applications totally without merit) applies. The hearing may be before the same judge.

(3) A request for the decision to be reconsidered at an oral hearing must be filed within 7 days after service of the letter giving notice that permission has been refused. A copy of the request must be served by the appellant on the respondent at the same time.

52CPD.16

Permission hearing

16 (1) Where an appellant who is represented makes a request for a decision to be reconsidered at an oral hearing, the appellant's advocate must at least 4 days before the hearing file a brief written statement—

(a) informing the court and the respondent of the points which are to be raised at the hearing; and

(b) setting out the reasons why permission should be granted notwithstanding the reasons given for the refusal of permission.

(2) The court will notify the respondent of the hearing but the respondent is not expected to attend unless the court so directs.

(3) If the court directs the respondent to attend the permission hearing, the appellant must supply the respondent with a copy of the skeleton argument and any documents to which the appellant intends to refer.

52CPD.17

Appellant in receipt of services funded by the Legal Services Commission applying for permission to appeal

17 Where the appellant is in receipt of services funded by the Legal Services Commission and permission to appeal has been refused by the court without a hearing, the appellant must send a copy of the court's reasons for refusing permission to the Legal Services Commission as soon as it has been received. The court will require confirmation that this has been done if a hearing is requested to re-consider the application.

52CPD.18

Limited permission: rule 52.3

18 (1) If, under rule 52.3(7), the court grants permission to appeal on some issues only, it will—

(a) refuse permission on any remaining issues; or

(b) adjourn the application in respect of those issues to the hearing of the appeal.

(2) If the court adjourns the application under sub-paragraph (1)(b), the appellant must inform the court and the respondent in writing, within 14 days after the date of the court's order, whether the appellant intends to pursue the application. If the appellant intends to pursue the application, the parties must include in any time estimate for the appeal hearing an allowance for the adjourned application.

(3) If the court refuses permission to appeal on the remaining issues without a hearing and the applicant wishes to have that decision reconsidered at an oral hearing, the time limit in rule 52.3(5) applies. Any application for an extension of this time should be made promptly. When hearing the appeal on the issues for which permission has been given the court will not normally grant an application to extend time in relation to the remaining issues.

52CPD.19

Respondent need not take any action when served with an appellant's notice

19 Unless the court directs otherwise, a respondent need not take any action when served with an appellant's notice until notified that permission to appeal has been granted.

52CPD.20

Respondent's costs of permission applications

20 (1) In most cases an application for permission to appeal will be determined without the need for the respondent to file submissions or attend a hearing. In such circumstances an order for costs will not normally be made in favour of a respondent who voluntarily makes submissions or attends a hearing.

(2) If the court directs the respondent to file submissions or attend a hearing, it will normally award costs to the respondent if permission is refused.

52CPD.21

Section 5 Timetable

21 The timetable for the conduct of an appeal after the date of the listing window notification is set out below:Timetable Part 1Listing window notification to lodging bundle

Period within which step is to be taken Action Cross reference to relevant provisions in this Practice Direction

Within 14 days of service of: 1. the appellant's notice if permission has been given by the lower court or is not needed; 2. notification that permission has been granted by the Court of Appeal; or 3. notification that the permission application will be listed with the appeal to follow Respondent's notice (if any) must be filed and served Paragraph 8 (respondent's notice)

Within 14 days of filing a respondent's notice If respondent has filed a respondent's notice, respondent must lodge and serve a skeleton argument on every other party Paragraph 9 (skeleton argument to be lodged with the respondent's notice or within 14 days of filing respondent's notice)

7 days after date of listing window notification Appellant must serve proposed bundle index on every respondent Paragraph 27 (bundle of documents)

14 days after date of listing window notification Appeal questionnaire must be filed and served on every respondent Paragraph 1 (listing window notification defined) Paragraph 23 (Appeal questionnaire)

7 days after service of Appellant's Appeal Questionnaire If a respondent disagrees with appellant's time estimate , that respondent must file and serve on every other party its own time estimate Paragraph 24 (time estimate)

21 days after listing window notification Appeal skeleton: appellant must serve on every respondent an appeal skeleton (without bundle cross references) Paragraph 31 (skeleton argument)

21 days after date of the listing window notification Agree bundle : the respondent must either agree the contents of the appeal bundle or notify the appellant of the documents that the respondent considers should be included in, or removed from, the appeal bundle by sending a revised index. If there is no agreement in relation to inclusion of a particular document, it must be placed in a supplemental bundle prepared by the party who has proposed its inclusion. Paragraph 27 (bundle of documents) Paragraph 28 (bundle: Appeals from Upper Tribunal Immigration and Asylum Chamber)

42 days after date of listing window notification Where respondent has not filed a respondent's notice, respondent must lodge skeleton argument and serve on every other party Paragraph 13 (respondent's skeleton argument (where no respondent's notice filed)) Paragraph 31 (skeleton argument)

Timetable Part 2Steps to be taken once hearing date fixed: lodging bundles, supplemental skeletons and bundles of authorities

Time before hearing date when step is to be taken Action Cross reference to relevant provisions in this Practice Direction

No later than 42 days before the appeal hearing Lodge, as directed by the court, the appropriate number of appeal bundles and serve a copy on all other parties to the appeal Paragraph 27 (bundle of documents) Paragraph 28 (bundle: Appeals from Upper Tribunal Immigration and Asylum Chamber)

No later than14 days before date of appeal hearing Appellant must lodge and serve replacement skeleton argument Paragraph 1 (replacement skeleton argument defined) Paragraph 31 (skeleton argument content, length and format) Paragraph 32 (supplementary skeleton argument)

No later than 7 days before the date of the hearing Respondent must lodge and serve replacement skeleton argument Paragraph 1 (replacement skeleton argument defined) Paragraph 32 (supplementary skeleton argument)

No later than 7 days before date of appeal hearing Bundles of authorities must be lodged Paragraph 29 (bundle of authorities)

No later than 7 days before the date of the hearing Every document needed for the appeal hearing (if not already lodged or filed) must be lodged or filed

52CPD.22

Section 6 Management of the appeal

Listing and hear-by dates

22 The hear-by date is the last day of the listing window.

52CPD.23

Appeal Questionnaire

23 The appellant must complete and file the Appeal Questionnaire and serve it on the respondent within 14 days after the date of the listing window notification.

52CPD.24

Time estimates

24 If the respondent disagrees with the appellant's time estimate, the respondent must inform the court within 7 days of service of the Appeal Questionnaire. In the absence of such notification the respondent will be deemed to have accepted the appellant's time estimate.

52CPD.25

Multiple Appeals

25 (1) If two or more appeals are pending in the same or related proceedings, the parties must seek directions as to whether they should be heard together or consecutively by the same judges.

(2) Whether appeals are heard together or consecutively, the parties must attempt to agree a single appeal bundle or set of bundles for all the appeals and seek directions if they are unable to do so.

52CPD.26

Expedition

26 (1) The court may direct that the hearing of an appeal be expedited.

(2) The court will deal with requests for expedition without a hearing. Requests for expedition must be made by letter setting out succinctly the grounds on which expedition is sought. The letter (or, if time is particularly short, email) must be marked for the immediate attention of the court and copied to the other parties to the appeal.

(3) If an expedited appeal hearing is required as a matter of extreme urgency, the Civil Appeals Office must be informed as soon as possible. If necessary, parties or their legal representatives should call the Royal Courts of Justice switchboard on 020 7947 6000 and ask a member of the security staff to contact the Duty Judge.

(4) An expedited hearing will be listed at the convenience of the court and not according to the availability of counsel.

52CPD.27

Section 7 Bundles, amendment and skeleton arguments

Bundle of documents

27 (1) The appellant must lodge an appeal bundle which must contain only those documents relevant to the appeal. The bundle must—

(a) be paginated and in chronological order;

(b) contain an index at the front.

(2) Documents relevant to the appeal: Subject to any order made by the court, the following documents must be included in the appeal bundle—

(a) a copy of the appellant's notice;

(b) a copy of any respondent's notice;

© a copy of any appellant's or respondent's skeleton argument;

(d) a copy of the order under appeal;

(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge's reasons, if any, for granting or refusing permission;

(f) a copy of any order allocating the case to a track;

(g) the approved transcript of the judgment of the lower court (except in appeals in cases which were allocated to the small claims track but subject to any order of the court).

(3) Documents which may be included: The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal—

(a) statements of case;

(b) application notices;

© other orders made in the case;

(d) a chronology of relevant events;

(e) witness statements made in support of any application made in the appellant's notice;

(f) other witness statements;

(g) other documents which the appellant or respondent consider relevant to the appeal.

(4) Bundles not to include originals: Unless otherwise directed, the appeal bundle should not include original material such as original documents, photographs and recorded media. Such material should be provided to the court, if necessary, at the hearing.

(5) Destruction of bundles: Bundles lodged with the court will not be returned to the parties but will be destroyed in the confidential waste system at the conclusion of the proceedings and without further notification.