NEW APPEAL RULES COMING INTO FORCE ON THE 3rd OCTOBER 2016

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

Transitional provision

“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.

Determination of applications for permission to appeal to the County Court and High Court

52.4.—(1) Where an application for permission to appeal is made to an appeal court other than the Court of Appeal, the appeal court will determine the application on paper without an oral hearing, except as provided for under paragraph (2).

(2) Subject to paragraph (3) 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 an oral hearing.

(3) Where in the appeal court a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without an oral 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 an oral hearing.

(4) For the purposes of paragraph (3), “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.

(5) Rule 3.3(5) (party able to apply to set aside, etc., a decision made of court’s own initiative) does not apply to an order made under paragraph (3) that the person seeking permission may not request the decision to be reconsidered at an oral hearing.

(6) A request under paragraph (2) must be filed within 7 days after service of the notice that permission has been refused.