The Court of Appeal is attempting to deal with a backlog. The Civil Procedure (Amendment No.3) Rules 2016 come into force on the 3rd October 2016. The primary change is in relation to the way in which applications for permission to appeal are dealt with in the Court of Appeal.
THE APPEALS THE NEW RULES APPLY TO
The key date is the date of the appellant’s appeal notice or the date of request for a review or reconsideration. The date of the judgment or decision being appealed against is not,therefore, the key date.
THE RULES AS TO THE TRANSITIONAL PROVISIONS
“16.—(1) Where an appellant’s notice has been issued before 3rd October 2016, the provisions of Part 52 in force immediately before that date continue to apply in relation to that case.
(2) Where a request was made under rule 52.16 before 3rd October 2016 for—
(a)review of a decision of a court officer; or
(b)reconsideration of a decision of a single judge or a court officer made without a hearing,
the provisions of rule 52.16 in force immediately before that date continue to apply for the purposes of that review or reconsideration.”
THE CHANGE TO THE RULES
A brand new Part 52 is introduced, this is available here. The main changes relate to the initial determination of an application for permission to appeal.
- Prior to the 3rd October there used to be an automatic right to an oral hearing requesting permission to appeal if the court refused permission.
- This has been changed to a system whereby the application will be determined on the papers unless the court determines it should be heard at an oral hearing.
- The court has a discretion to “call” in the application for oral hearing. Indeed it is under a duty to do so if it finds that it cannot fairly determine the application on the papers.
- The court can also direct that the party seeking permission provide further information in support of the application.
- The court can also direct that the respondent attends the hearing (and remember this is the hearing for permission).
- The oral hearing will normally be listed within 14 days of the decision for a oral hearing.
THE NEW RULES: THE COURT OF APPEAL
Determination of applications for permission to appeal to the Court of Appeal
52.5.—(1) Where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing, except as provided for under paragraph (2).
(2) The judge considering the application 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.
(3) An oral hearing directed under paragraph (2) must be listed—
(a)no later than 14 days from the date of the direction under that paragraph; and
(b)before the judge who made that direction,
unless the court directs otherwise.
(4) The Court of Appeal may, in any direction under paragraph (2)—
(a)identify any issue or issues on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and
(b)direct the respondent to serve and file written submissions and to attend the oral hearing.
THE TEST FOR PERMISSION TO APPEAL
The rules now contain the test for permission to appeal. Note the very importance difference between first appeals and second appeals.
Permission to appeal test – first appeals
52.6.—(1) Except where rule 52.7 applies, 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 for the appeal to be heard.
(2) An order giving permission under this rule or under rule 52.7 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.)
Permission to appeal test – second appeals
52.7.—(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal, or a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
(2) The Court of Appeal will not give permission unless it considers that—
(a)the appeal would—
(i)have a real prospect of success; and
(ii)raise an important point of principle or practice; or
(b)there is some other compelling reason for the Court of Appeal to hear it.
PERMISSION TO APPEAL IN THE HIGH COURT AND COUNTY COURT
The procedure for appealing in the High Court and County Court is allows a request for an oral hearing. It also allows the judge refusing appeal on paper to state that the application is totally without merit and make an order that a request for an oral hearing cannot be made.