Learning Outcomes
This article explains the requirement to obtain permission before bringing an appeal in civil litigation. It details the test applied by the court when considering an application for permission and outlines the basic procedure for making such an application. After reading this article, you should understand the criteria for granting permission to appeal and the key procedural steps involved in seeking permission from both the lower court and the appeal court.
SQE1 Syllabus
For the SQE1 assessments, you need to understand the rules governing appeals, specifically the key step of obtaining permission. Your revision should concentrate on:
- The general requirement for permission to appeal in civil cases.
- The test applied by the court when deciding whether to grant permission (CPR 52.6).
- The meaning of 'real prospect of success' and 'other compelling reason'.
- The procedure for applying for permission, including time limits.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- True or false? Permission to appeal is required for all civil appeals.
- What are the two main grounds upon which a court may grant permission to appeal?
- Within what time frame must an appellant's notice, seeking permission from the appeal court, generally be filed?
Introduction
In most civil cases, a party dissatisfied with a court's decision cannot appeal automatically. Instead, they must first obtain permission to appeal. This requirement acts as a filter, ensuring that appellate court time is reserved for cases that genuinely warrant further consideration. Understanding the rules and tests for obtaining permission is therefore essential for advising clients on the viability and process of an appeal. The governing rules are primarily found in Part 52 of the Civil Procedure Rules (CPR).
The Requirement for Permission
CPR 52.3(1) states that permission to appeal is required in almost all cases. There are very limited exceptions, such as appeals against committal orders or secure accommodation orders under the Children Act 1989, but for general civil litigation purposes, permission is the default requirement.
Permission can be sought from the lower court at the hearing where the decision to be appealed was made. If permission is refused by the lower court, or if no application is made at that hearing, the party wishing to appeal (the appellant) must apply for permission from the appeal court itself.
Key Term: Permission to appeal
The authorisation required from either the lower court that made the decision or the appeal court before an appeal can proceed.
The Test for Permission to Appeal
Whether permission is sought from the lower court or the appeal court, the same test applies. CPR 52.6(1) states that 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.
These two limbs provide alternative grounds for granting permission.
Real Prospect of Success
This is the most common ground upon which permission is sought and granted. The term 'real prospect of success' means the prospect of success must be realistic rather than fanciful (Swain v Hillman [2001] 1 All ER 91). It does not mean that the appeal must be likely to succeed; rather, it must have a prospect that is more than merely arguable. The court assesses whether the proposed appeal carries a realistic, rather than fanciful, chance of obtaining a different outcome on appeal.
Key Term: Real prospect of success
A ground for granting permission to appeal, meaning the appeal has a realistic, as opposed to fanciful, chance of succeeding.
Other Compelling Reason
Even if an appeal does not have a real prospect of success, permission may still be granted if there is some other compelling reason for the appeal to be heard. This limb allows appeals to proceed where they raise an important point of principle or practice, or where there is some other reason in the public interest why the appeal court should consider the issue, even if the appellant's chances of success are slim.
Key Term: Other compelling reason
An alternative ground for granting permission to appeal, typically involving an important point of principle or practice, or some other matter of public interest.
Worked Example 1.1
A claimant loses a straightforward breach of contract claim at trial in the County Court. The judge provides clear reasons, based on findings of fact supported by the evidence, that no breach occurred. The claimant believes the judge misunderstood the commercial realities but cannot point to a specific error of law or a finding wholly unsupported by evidence. The claimant applies for permission to appeal to the trial judge immediately after judgment.
Should the judge grant permission?
Answer: Probably not. On these facts, it appears the appeal would not have a 'real prospect of success' as the decision was based on factual findings supported by evidence. Furthermore, there does not appear to be any 'other compelling reason' (like an important point of principle) for the appeal to be heard. Permission would likely be refused.
Procedure for Applying for Permission
As mentioned, the first opportunity to seek permission is usually from the lower court immediately after the decision is given. This can be done orally.
If permission is refused by the lower court, or not sought at that time, the appellant must apply to the appeal court. This application is included within the appellant's notice (Form N161 for appeals to the County Court or High Court).
Key Term: Appellant's notice
The court form used by an appellant to initiate an appeal and, where necessary, apply for permission to appeal from the appeal court.
Time Limits
The appellant’s notice must generally be filed at the appeal court within 21 days after the date of the decision of the lower court that the appellant wishes to appeal (CPR 52.12(2)(b)). This is a strict deadline. Extensions of time can be sought, but require a specific application and a good reason for the delay.
Exam Warning
Time limits in relation to appeals are strictly enforced. Missing the deadline for filing the appellant's notice (which includes the application for permission) can be fatal to the appeal unless a compelling reason for an extension can be shown. Always diarise appeal deadlines carefully.
Respondent's Role
The party responding to the appeal (the respondent) has the right to make submissions arguing against the grant of permission when the application is considered by the appeal court.
Worked Example 1.2
Following the refusal of permission by the trial judge in Worked Example 1.1, the claimant decides to seek permission from the appeal court (the High Court in this instance, assuming the trial was before a Circuit Judge). The judgment was given on 1st March.
By what date must the claimant file the appellant's notice (including the application for permission) at the High Court?
Answer: The appellant's notice must be filed within 21 days of the decision. Counting 21 days from 1st March, the deadline would be 22nd March.
Revision Tip
Remember the two limbs of the permission test (real prospect of success OR other compelling reason) and the standard time limit (usually 21 days) for filing an appellant's notice when seeking permission from the appeal court. These are core points frequently tested.
Key Point Checklist
This article has covered the following key knowledge points:
- Permission to appeal is required in almost all civil cases (CPR 52.3).
- Permission can be sought from the lower court or the appeal court.
- The test for permission is whether the appeal has a real prospect of success OR there is some other compelling reason for it to be heard (CPR 52.6).
- 'Real prospect' means a realistic, not fanciful, chance of success.
- 'Other compelling reason' usually relates to points of principle, practice, or public interest.
- An application for permission to the appeal court is made in the appellant's notice.
- The usual time limit for filing the appellant's notice is 21 days from the date of the decision being appealed.
Key Terms and Concepts
- Permission to appeal
- Real prospect of success
- Other compelling reason
- Appellant's notice
