PERMISSION TO APPEAL NOT NEEDED FROM JUDGE AT FIRST INSTANCE (BUT YOU SHOULD STILL ASK).

In P -v- P [2-15] EWCA Civ 447 the Court of Appeal held that it is not mandatory for a party who wishes to appeal to seek permission from the judge at first instance.

THE CASE

The Court of Appeal was considering an appeal by the trustees of a post-nuptial settlement. An issue arose because the trustees had not sought permission to appeal from the judge at first instance. This aspect of the case was considered in a short judgment from Jackson LJ (which was agreed with by the other members of the court).

“63. In the course of the appeal counsel asked the court to consider Mr Justice Mostyn’s second judgment, in which he dealt with the question of permission to appeal: Re P [2014] EWHC 2990 (Fam). The judge expressed displeasure that the appellants were (until the judge discovered what was going on) pursuing an application for permission directly to the Court of Appeal without reference to himself.

64. The judge quoted the following passage from paragraph 52.3.4 of the notes to the White Book (2014 edition), which sets out five reasons why an appellant should, in the first instance, apply to the court below: “(a) The judge below is fully seised 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 cost. (c) 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.”

65. After referring to the nature of claims for financial remedy or ancillary relief, the judge said this at [6]: “It is therefore my clear view that in the future, in the field of ancillary relief at the very least, an application for permission to appeal must always be made to the judge at first instance before an approach is made to the Court of Appeal.”

66. Mr Dew says that paragraph [6] of Re P is being treated by the Family Bar as a mandatory direction that applications for permission to appeal must always be made in the first instance to the lower court. He submits that, although that was so under Judgment Approved by the court for handing down. P v P the old rules, it is no longer the case under the present form of CPR Part 52. See rule 52.3 (2) and Practice Direction 52A, paragraph 4.1. Mr Dew requests that we clarify the position in our judgments.

67. I must confess at once that, when the earlier version of the rules was in force, I was the editor in the White Book team who was responsible for Part 52. Indeed I am the author of the note in paragraph 52.3.4, which has appeared in successive editions of the White Book and which the judge has quoted.

68. In my view, even under the current rules, it is still good practice for any party contemplating an appeal in the first instance to seek permission from the lower court. Ideally the party should do so when the judge delivers or hands down judgment. This is for the five reasons set out in paragraph 52.3.4 of the White Book commentary. 69. On the other hand there is no longer a rule requiring the appellant to apply to the lower court for permission. Therefore the need to apply to the court below is no longer a mandatory requirement, merely a matter of good practice. 70. These observations apply both to family cases and to civil litigation generally.”

CPR 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 the 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 19891; 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 the 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) a further application for permission may be made to the appeal court; and

(b) the order refusing permission will specify—

(i) the court to which any further application for permission should be made; and

(ii) the level of the judge who should hear the application.

(4) Subject to paragraph (4A) and except where a rule or practice direction provides otherwise, 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 any Circuit Judge in the 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)

PRACTICE DIRECTION 52A-APPEALS: PARA 4.1.

“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.”

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