PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE OR MORE LIKELY THAN NOT

In  R (A Child) [2019] EWCA Civ 895 the Court of Appeal set out the criteria for permission for appeal.

“The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success…,there must be a realistic, as opposed to fanciful, prospect of success. There is no requirement that success should be probable, or more likely than not.”

THE CASE

The Court allowed an appeal by a grandmother who had been named in a pool of potential perpetrators by the trial judge.

THE COURT’S COMMENTS ON THE CRITERIA FOR PERMISSION TO APPEAL

The test for permission to appeal
    1. I finally refer to a procedural issue. In this case, the application for permission to appeal correctly set out the relevant test under CPR r.52.6(1), namely that permission to appeal may be given only where –

a. the court considers the appeal would have a real prospect of success; or

b. there is some other compelling reason why the appeal should be heard.

    1. The same criteria govern appeals within the Family Court and commentary on the equivalent provision (FPR 30.3(7)) appears in the Family Court Practice 2018 at p.1909. When seeking permission to appeal, Mr Lord cited that commentary, which is in these terms:

Real prospect of success – There are two conflicting authorities on the meaning of a ‘real prospect of success’. In NLW v ARC [2012] 2 FLR 129, FD, Mostyn J held that the ‘real prospect of success’ meant it was more likely than not that the appeal would be allowed at the substantive hearing: “anything less than a 50/50 threshold could only mean there was a real prospect of failure”. Moor J, however, has held that a ‘real prospect of success’ is one that is realistic rather than fanciful, and does not mean a greater than 50/50 chance of success. … The weight of current first instance authority follows the approach of Moor J. “

  1. Several years on, this divergence of approach continues to be referred to in applications for permission to appeal to this court and to the High Court. This appeal represents an opportunity to resolve any remaining doubt. The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success. As stated in Tanfern v Cameron-MacDonald (Practice Note) [2001] 1 WLR 1311 CA at [21], which itself follows Swain v Hillman [2001] 1 AER 91 CA, there must be a realistic, as opposed to fanciful, prospect of success. There is no requirement that success should be probable, or more likely than not.