Have you lost your appeal?

Charles Bagot provides a rough guide to changes to the rules on Appeals.

• Significant new appeal rules (via a new CPR 52) came into force on 3 October;
• The proposed changes to the threshold test for appealing have not been included;
• Important changes limiting the right to an oral hearing have been brought in;
• As have changes to the destination of appeals to lighten the Court of Appeal’s workload;
• Appeals from a Circuit Judge in the County Court will now be to a High Court Judge, not the Court of Appeal, whether the decision is an interim one (as before) or a final one (the key change). The exception is where the Circuit Judge’s decision is itself made on appeal in which case the Court of Appeal is still the destination for the (second) appeal.
• So to get a decision of the Court of Appeal in any case which starts life in the County Court will necessitate satisfying the high bar for permission for a second appeal (see further below) or a leap-frog (good luck). This will have a significant impact on the bulk of multi-track cases which are litigated in the County Court. It will become of even greater significance if and when proposals to increase the financial threshold for issuing in the High Court perhaps to over £0.5 million are brought into force.
• So we can anticipate an increase in satellite litigation where parties file an appeal in the wrong court at the last minute and thereby miss the deadline for an appeal to the correct court. There is provision whereby a court officer may notify a party in writing that the appeal court does not have jurisdiction (CPR PD 52A.3.9), but this may come too late to avoid missing a deadline, necessitating an application to extend time out of time.
• For appeals to the County Court, High Court and Court of Appeal, the first stage remains a decision whether to grant or refuse permission to appeal (if not granted by the judge being appealed) by a Judge, on paper, without an oral hearing;
• The test for permission to appeal remains, for first appeals, whether there is a real prospect of success or some other compelling reason for the appeal to be heard;
• For second appeals, the test remains the dual requirements of whether there is a real prospect of success, and whether the appeal raises an important point of principle or practice, or some other compelling reason for the appeal to be heard;
• For applications for permission to appeal to the Court of Appeal, the single Judge will decide on paper whether to grant or refuse permission to appeal;
• N.B. For appeals to the Court of Appeal, there is no longer a right to request reconsideration at an oral hearing. The judge considering the application for permission on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing. But gone is the right for the appellant to request an oral reconsideration if the judge does not direct one.
• If a judge decides to list an application for permission for an oral hearing as described above, this will usually take place within 14 days and before the same judge;
• For applications for permission to appeal to the County Court or High Court, if permission is refused on paper, the appellant can still request reconsideration at an oral hearing as of right;
• The exception is where a High Court Judge, Designated Civil Judge or Specialist Circuit Judge considers that the application is totally without merit and makes an order that the appellant may not request reconsideration at an oral hearing;
• CPR 3.3(5) (ability to apply to set aside an order made of the Court’s own initiative) does not apply to a ‘totally without merit’ bar on requesting an oral hearing;
• Where the appellant’s notice is issued before 3 October 2016 the previous rules still apply. Likewise where a request for a reconsideration is made before that date. So the old rules will remain relevant for some time to come.
• For more detailed information about the new rules and transitional provisions, as with all things Civil Litigation, we recommend you consult our Hardwicke colleague, Gordon Exall’s, ever helpful blog posts:

https://civillitigationbrief.wordpress.com/2016/09/27/new-appeal-rules-coming-into-force-on-the-3rd-october-2016/

https://civillitigationbrief.wordpress.com/2016/10/07/destination-of-appeals-the-new-rules/