DESTINATION OF APPEALS: THE NEW RULES

The Access to Justice Act 1999 (Destination of Appeals) Order 2016 makes some important changes to the destination of appeals. It “simplifies” the appeals process so that, as far as possible, an appeal lies to the next level of judge. The most significant change is that an appeal from a Circuit Judge will usually be to a High Court judge and not the Court of Appeal.

“… lawyers were undoubtedly at fault in failing to appreciate that the appeal lay to the High Court, because there is no ambiguity about the relevant provisions of PD 52A. They just need to be read with appropriate care.”

APPEALS THIS APPLIES TO

The new rules apply to appeals filed from the 3rd October 2016.

MAIN CHANGES

The rules remove the distinction between an interim and final decision.

  • In the county court an appeal will lie from a decision of the Circuit Judge to the High Court.
  • An appeal will lie from a District Judge to a Circuit Judge.
  • Appeals from Masters, Registrars and District Judges of the High Court continue to be to a Judge of the High Court.
  • Where the decision of the county court judge was itself an appeal then appeal will be to the Court of Appeal.

THE NEW PRACTICE DIRECTION 52A – APPEALS

SECTION III – DESTINATIONS OF APPEAL

3.1  Section 56 of the Access to Justice Act 1999 enables the Lord Chancellor to specify the destinations of appeal in different cases. The Access to Justice Act 1999 (Destinations of Appeal) Order 2016 specifies the general destinations of appeal which apply subject to any statutory provision to the contrary. Appeals in respect of individual insolvency and corporate insolvency proceedings are specified in section 375 of the Insolvency Act 1986 and rule 7.47 of the Insolvency Rules 1986 respectively.

The destinations of appeal provided by these provisions 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.

‘DJ’: District judge.

‘CJ’: 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.

‘CJ (CC)’: Circuit judge in the county court.

‘Master’: Master, district judge sitting in a district registry or any other judge referred to in article 4 of the Destination of Appeals Order.

‘HC’: High Court;

‘HCJ’: single judge of the High Court.

‘HCJ(FD)’: single judge of the family Division of the High Court.

‘CA’: Court of Appeal.

‘Companies Acts’ means the Companies Act 1985, the Companies Act 1989 and the Companies Act 2006.

(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 or to the Supreme Court pursuant to section 13 of the Administration of Justice Act 1969.)

3.5  The destinations in the tables set out below apply in relation to first appeals, whether the decision is interim or final.

(For a second appeal (an appeal from a decision of the County Court or the High Court which was itself made on appeal), the destination is the Court of Appeal (save where the original decision was a decision of an officer authorised to assess costs by the Lord Chancellor: see article 6 of the Access to Justice Act 1999 (Destination of Appeals) Order 2016).)

Table 1 – Proceedings other than family or insolvency proceedings

Court Deciding judge Decision under appeal Destination
County DJ Any, other than a decision in non-insolvency
proceedings brought pursuant to the Companies Acts
CJ(CC)
A decision in non-insolvency proceedings brought pursuant to the Companies Acts HC
CJ Any HC
High Master Any HCJ
HCJ Any CA
Intellectual
Property Enterprise Court
DJ Any Enterprise Judge
Enterprise Judge Any CA

 

Table 2 – Insolvency proceedings

Court Deciding judge Proceedings Destination
County DJ Individual insolvency HCJ
Corporate insolvency HCJ or
Registrar
CJ Any HCJ
High Master, Registrar or DJ Any HCJ
HCJ Any CJ

 

Table 3 – Family proceedings in the Principal Registry of the Family Division and to which the CPR will apply

The 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 Decision under appeal Destination
DJ Any HCJ(FD)
HCJ(FD) Any CJ

 

LODGING THE APPEAL AT THE WRONG COURT

Filing appellant’s notice in wrong court

3.9

(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 52.24.

(3) Where a court officer, in the Court of Appeal, notifies a person under paragraph (1), rule 52.24(5) and (6) shall not apply.

THIS IS A REAL ISSUE  – EVEN IN A JUDGMENT GIVEN A JUDGMENT TODAY

The rules were causing confusion even before they were changed. In a judgment today in Artist Court Collective Limited -v- Khan [2016] EWHC 2453 (Ch) Mr Justice Henderson had to give permission to appeal out of time (under the old rules).

  1. I granted permission at an early stage for the necessary extension of time for appealing, so I need not say much about that aspect of the case. In short, the appellant’s notice had mistakenly been filed, in time, with the Civil Appeals Office on the footing that the appeal lay to the Court of Appeal. On 20 November 2015 the Court of Appeal correctly indicated that it lacked jurisdiction, and that the correct route of appeal was to the High Court. Mr Khan’s solicitors then filed a protective appellant’s notice in the High Court on 23 November 2015, 7 days out of time. The application was not opposed by Mr Caun, and I took the view that Artist Court’s breach of the rules was in all the circumstances neither serious nor significant. It would have been disproportionate to refuse an extension, and thereby prevent Mr Khan from pursuing his appeal, when Artist Court knew within the stipulated 21 day period the grounds upon which Mr Khan wished to appeal, and no prejudice was caused to it by the short delay while the confusion was sorted out. That said, Mr Khan’s lawyers were undoubtedly at fault in failing to appreciate that the appeal lay to the High Court, because there is no ambiguity about the relevant provisions of PD 52A. They just need to be read with appropriate care.

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