Appeals - Permission for appeals

Learning Outcomes

This article explains the permission requirement in civil appeals under CPR Part 52, clarifying when permission is needed, from which court it should be sought, and how it functions as a filter on unmeritorious appeals. It explains the statutory and procedural framework governing first and second appeals, the distinction between appeals requiring permission and limited automatic rights, and the consequences of failing to secure permission within the relevant time limits. It analyzes the CPR 52.6 ‘real prospect of success’ and ‘other compelling reason’ tests, the stricter CPR 52.7 second‑appeal threshold, and how these standards are applied in practice to discretionary decisions, findings of fact, and case‑management orders. It also details the core procedural steps for obtaining permission: making an oral application to the trial judge, completing and filing the appellant’s notice, assembling the appeal bundle, and dealing with paper determinations, oral renewals, and “totally without merit” certifications. Finally, it highlights the strategic role of respondents, key ancillary applications such as stays and extensions of time, and common exam traps around time limits, forum, and grounds of appeal.

SQE1 Syllabus

For SQE1, you are required to understand the rules governing appeals, specifically the key step of obtaining permission, with a focus on the following syllabus points:

• 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.
• Where and how to seek permission: from the lower court at judgment and/or from the appeal court by appellant’s notice (Forms N161/N164).
• Paper consideration of permission applications, oral renewal where refused on paper, and the effect of a finding that an application is “totally without merit”.
• The respondent’s role, including use of a respondent’s notice to uphold the order on different grounds or to seek permission to cross‑appeal.
• Time limits linked to appeal steps: filing the appellant’s notice (usually 21 days), serving it (usually within 7 days of filing), and filing any respondent’s notice (usually within 14 days of service).
• Ancillary applications commonly made with the permission application (e.g. stay of execution, transcript at public expense, extension of time).
• The stricter test for second appeals to the Court of Appeal (CPR 52.7).
• The limited scope of appellate review and the grounds on which an appeal may ultimately be allowed (decision “wrong” or “unjust because of serious procedural or other irregularity”).

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.

1. True or false? Permission to appeal is required for all civil appeals.
2. What are the two main grounds upon which a court may grant permission to appeal?
3. 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 permission stage is generally dealt with on the papers in the appeal court in accordance with CPR 52 and Practice Direction (PD) 52A. If permission is refused on the papers (and the application is not certified as totally without merit), there is usually a short window in which to request an oral renewal. The appellate process is further shaped by the Access to Justice Act 1999 (particularly on the destination of appeals), and PD 52A supplements the procedural details, including the form and content of appeal documents and the timelines for steps in appeals.

Key Term: Appellant
The party who seeks to challenge a decision by bringing an appeal.

Key Term: Respondent
The party who resists the appeal and seeks to uphold the lower court’s decision.

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, appeals involving writs of habeas corpus, and certain appeals in insolvency or bankruptcy jurisdiction. For general civil litigation purposes, permission is the default requirement across tracks, including the small claims and fast tracks.

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. The lower court should state succinct reasons for granting or refusing permission, and when granting permission it may limit the issues to be argued and/or impose conditions.

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.

Key Term: Second appeal
An appeal to the Court of Appeal from a decision that was itself made on appeal. A stricter permission test applies under CPR 52.7.

The Test for Permission to Appeal

Whether permission is sought from the lower court or the appeal court, the same basic test applies for first appeals. 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. For second appeals, CPR 52.7 imposes a stricter test (explained below).

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 judge asks whether the proposed appeal has a genuine (as opposed to a remote or speculative) chance of resulting in a different outcome.

Where the appeal challenges a discretionary case management decision or a trial judge’s evaluative assessment of fact, permission will be harder to obtain unless the appellant can show a clear error in principle, a misdirection of law, or that the decision is outside the range of reasonable decisions open to the lower court.

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 is engaged sparingly and is most often relied upon where the appeal raises:

• an important point of principle or practice requiring authoritative guidance;
• a need to resolve conflicting first-instance decisions or clarify procedural uncertainty; or
• a concern that a serious procedural irregularity may have occurred, creating potential injustice even if the merits appear weak.

The threshold is not met by a mere desire for a “second opinion”. The court looks for a strong policy reason to allocate appellate resources, such as public interest in clarifying a point of law or practice, or a need to address a widespread or recurrent problem.

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.

Second appeals: stricter permission test

For second appeals, permission is only granted where the Court of Appeal considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it (CPR 52.7). This is a higher threshold than for first appeals. The Court of Appeal will not grant permission simply because the case might arguably have been decided differently; a broader significance or compelling factor must be demonstrated.

Key Term: Totally without merit
A certification that an application is so lacking in merit that it warrants no further consideration; if so certified in a permission application, the right to renew the application at an oral hearing is removed.

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. The lower court’s order should record whether permission is granted or refused and briefly state reasons. The lower court can limit the issues for which permission is granted and may attach conditions.

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; Form N164 for small claims appeals).

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.

The appellant’s notice must contain or be accompanied by:

• concise grounds of appeal identifying why the lower court’s decision is said to be wrong and/or unjust due to serious procedural or other irregularity;
• any application(s) the appellant seeks in the appeal (e.g. stay of execution, extension of time, transcript at public expense);
• any skeleton argument if available (and in higher courts, skeletons are routinely required);
• the sealed order under appeal and, if permission was addressed below, the order and short reasons of the lower court granting or refusing permission.

Key Term: Skeleton argument
A concise written outline of the points to be argued on the appeal, cross‑referenced to authorities and the bundle, filed to assist the court’s efficient preparation and case management.

Key Term: Stay of execution
An order suspending the effect or enforcement of the lower court’s order pending the appeal; not automatic on filing an appeal.

Permission applications made to the appeal court are usually determined on the papers. If refused on paper, the court will ordinarily allow an oral renewal within a short period unless it certifies the application as totally without merit (in which case no oral renewal is permitted). Always check the order for any direction limiting or removing the right to renew.

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, with the court applying the familiar relief from sanctions approach (seriousness/significance of the breach, reason for default, and all the circumstances).

After filing, the appellant must usually serve the appellant’s notice on each respondent within 7 days of filing. A respondent who wishes to uphold the order for reasons different from the lower court’s or to seek variation must file a respondent’s notice, generally within 14 days after service of the appellant’s notice (CPR 52.13).

Key Term: Respondent's notice
The prescribed form used by a respondent either to seek permission to cross‑appeal or to ask the appeal court to uphold the lower court’s decision on grounds different from or additional to those adopted below.

If the appeal progresses, PD 52A requires filing of an appeal bundle containing only the documents relevant to the appeal. Unless otherwise directed, the appellant must file the bundle as soon as practicable and generally within 35 days of filing the appellant’s notice. The bundle typically includes the appellant’s notice, any respondent’s notice, skeleton arguments, the order under appeal, any order regarding permission and reasons, a transcript (or approved note) of judgment or reasons, any tracks allocation order, and any other material strictly necessary to determine the grounds.

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. Filing an appeal does not automatically stay enforcement of the lower court’s order; seek a stay where necessary.

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. If permission is granted (by the lower court or the appeal court), the respondent may:

• file a skeleton argument addressing the grounds and supporting the decision below;
• file a respondent’s notice within time if seeking to uphold the order for reasons different from those adopted by the lower court, or to seek permission to cross‑appeal on discrete points;
• resist any application for a stay pending appeal and/or seek conditions.

The respondent should assume that the first consideration of permission will be on the papers and file focused written submissions if invited or directed.

Paper determination, oral renewal and “totally without merit”

Appeal courts usually decide permission on paper. If permission is refused on paper, an oral renewal may be requested within a short period stated in the refusal (often 7 days). If the permission application is certified as totally without merit, no oral renewal will be entertained and the court may make a civil restraint order in egregious cases. Focused grounds and disciplined written advocacy are essential to avoid such outcomes.

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. If that date fell on a non-business day, CPR 2.8 would extend the deadline to the next business day.

Worked Example 1.3

An appellant’s permission application is refused on the papers by a High Court judge, who does not mark it as totally without merit. The order states that any oral renewal request must be lodged within 7 days. The appellant files the renewal request 10 days later, explaining that counsel was unavailable.

Can the appellant expect an oral renewal hearing as of right?

Answer:
No. The time limit in the refusal order must be met. A late renewal requires an application for an extension of time, supported by reasons. The court will consider the seriousness of the delay, the reason for default, and all the circumstances. Unavailability alone, without prompt action and good explanation, may not justify an extension.

Worked Example 1.4

A party loses an appeal in the County Court against a small claims judgment and now seeks to bring a second appeal to the Court of Appeal, arguing that the judge below misapplied established law to the facts.

Will the standard first‑appeal “real prospect” test apply?

Answer:
No. CPR 52.7 imposes a stricter test for second appeals. Permission will only be granted if the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Mere disagreement with the evaluative application of settled law to the facts will not suffice.

Worked Example 1.5

A litigant files an appellant’s notice 10 days late due to a misunderstanding about when time started to run. They promptly apply for an extension and for permission to appeal, explaining the mistake and exhibiting the draft grounds.

How will the court approach the extension application?

Answer:
The court will assess the seriousness/significance of the delay, the reason for default, and all the circumstances, including promptness once the error was discovered and the merits of the proposed appeal. A short delay with a credible explanation, promptly corrected, may attract relief, especially if the appeal has a real prospect of success and no prejudice is caused to the respondent.

Practical points commonly included in the appellant’s notice

It is good practice to include any immediate ancillary applications within the appellant’s notice, for example:

• a request for a stay of execution pending appeal;
• an application for a transcript at public expense where appropriate;
• an application to vary time limits or for directions about the appeal bundle;
• any request for expedition if there is real urgency.

Where a stay is sought, the court will consider the merits of the appeal, the risk of irremediable prejudice absent a stay, and the balance of hardship.

Key Term: Paper determination
The appeal court’s consideration of a permission application (and sometimes case‑management matters) on written materials without an oral hearing.

Scope of review and grounds at the permission stage

Although this article focuses on permission, it is important to keep in view the downstream appellate standards. Appeals are normally limited to a review of the decision of the lower court rather than a re‑hearing (CPR 52.21). New evidence is rarely admitted. An appeal will be allowed only if the decision was “wrong” or “unjust because of a serious procedural or other irregularity”. This underlines why permission is refused if the grounds do no more than seek a re‑run of the trial or invite the appeal court to substitute its own factual evaluation absent error.

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), with narrow exceptions (e.g. committal orders, habeas corpus).
• Permission can be sought first from the lower court; if refused or not sought, the appeal court decides the permission application, usually on the papers.
• 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 realistic, not fanciful; “other compelling reason” is reserved for cases of wider importance or potential serious procedural injustice.
• For second appeals to the Court of Appeal, a stricter test applies (CPR 52.7): important point of principle or practice, or some other compelling reason.
• An application for permission to the appeal court is made in the appellant’s notice; attach the order under appeal, concise grounds, and supporting documents.
• The usual time limit for filing the appellant's notice is 21 days from the date of the decision being appealed; service on respondents normally within 7 days of filing.
• Respondents can oppose permission and file a respondent’s notice within 14 days if seeking to uphold for different reasons or to cross‑appeal.
• Permission decisions on paper can be renewed orally unless certified totally without merit; strict time limits apply to any renewal request.
• There is no automatic stay of the lower court’s order pending appeal; a stay should be sought expressly with reasons.

Key Terms and Concepts

• Permission to appeal
• Appellant
• Respondent
• Real prospect of success
• Other compelling reason
• Second appeal
• Appellant's notice
• Respondent's notice
• Skeleton argument
• Stay of execution
• Totally without merit
• Paper determination