Learning Outcomes
This article outlines the role and function of the UK Supreme Court as the final court of appeal. It explains the routes by which cases can reach the Supreme Court, including standard appeals and the leapfrog procedure. It details the key requirement for permission to appeal, focusing on the 'point of law of general public importance' test. After reading this article, you should understand the Supreme Court's place in the judicial hierarchy, the criteria for bringing an appeal, and the effect of its decisions on legal precedent within England and Wales.
SQE1 Syllabus
For SQE1, understanding the structure and function of the higher courts, including the Supreme Court and its appellate jurisdiction, is essential. You need to know how cases reach the final court of appeal and the basis upon which appeals are heard. Key areas covered in this article relevant to the syllabus include:
- The hierarchy of the courts in England and Wales.
- The role and jurisdiction of the Supreme Court.
- The process for appealing cases to the Supreme Court from lower courts.
- The criteria for granting permission to appeal, notably the test of 'general public importance'.
- The effect of Supreme Court judgments on precedent.
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.
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Which Act of Parliament established the UK Supreme Court?
- Supreme Court Act 1981
- Constitutional Reform Act 2005
- Appellate Jurisdiction Act 1876
- Human Rights Act 1998
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What is the primary test for granting permission to appeal to the Supreme Court?
- The case involves a sum exceeding £100,000.
- The lower court made an error of fact.
- The appeal raises an arguable point of law of general public importance.
- Both parties consent to the appeal.
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True or False: The Supreme Court is bound by its own previous decisions in all circumstances.
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Under what circumstances can a 'leapfrog' appeal be made directly from the High Court to the Supreme Court?
- If the case involves a commercial dispute.
- If the High Court judge considers the case particularly complex.
- If the relevant statutory provisions are met, including the case involving a point of law of general public importance related to statutory interpretation or bound by a previous Supreme Court/House of Lords decision.
- If the Court of Appeal refuses permission to appeal.
Introduction
The Supreme Court of the United Kingdom stands at the apex of the court hierarchy for England and Wales (as well as Northern Ireland, and for civil cases from Scotland). It is the final court of appeal, meaning its decisions represent the ultimate judicial determination of legal issues within its jurisdiction. Established by the Constitutional Reform Act 2005, it replaced the Appellate Committee of the House of Lords, enhancing the separation of powers between the judiciary and the legislature. Understanding the routes of appeal to the Supreme Court and the criteria for hearing cases is fundamental for solicitors advising clients on the potential for pursuing a case to the highest level.
The Supreme Court's Role and Jurisdiction
The primary function of the Supreme Court is to hear appeals on arguable points of law of general public importance. It does not reconsider findings of fact made by lower courts but focuses entirely on legal questions. Its decisions clarify the law, resolve conflicting interpretations from lower courts, and ensure that the law develops coherently.
Key Term: Supreme Court The final court of appeal in the UK for civil cases, and for criminal cases from England, Wales, and Northern Ireland, established by the Constitutional Reform Act 2005.
Key Term: Jurisdiction The official power of a court to make legal decisions and judgments in relation to particular types of case or geographical areas.
The Supreme Court's jurisdiction is almost entirely appellate. It hears appeals from the Court of Appeal in England and Wales, and in certain circumstances, directly from the High Court via the 'leapfrog' procedure.
Routes of Appeal to the Supreme Court
There are two main pathways for a case to reach the Supreme Court from the English and Welsh courts.
Standard Appeals
The most common route is an appeal from the Court of Appeal (either the Civil Division or the Criminal Division). Before an appeal can be heard by the Supreme Court, the appellant must obtain permission to appeal.
Key Term: Appeal An application to a higher court for a reversal of the decision of a lower court.
Key Term: Appellant The party who applies to a higher court for a reversal of the decision of a lower court.
Key Term: Respondent The party who responds to an appeal, typically seeking to uphold the decision of the lower court.
Leapfrog Appeals
In exceptional circumstances, an appeal may proceed directly from the High Court to the Supreme Court, bypassing the Court of Appeal. This 'leapfrog' procedure is governed by sections 12-15 of the Administration of Justice Act 1969 and Part 52 of the Civil Procedure Rules.
Key Term: Leapfrog Appeal A procedure allowing an appeal to go directly from the High Court to the Supreme Court, bypassing the Court of Appeal, under specific statutory conditions.
A leapfrog appeal requires a certificate from the High Court judge confirming the case meets the statutory conditions, and permission from the Supreme Court itself. The conditions include that the case involves:
- A point of law of general public importance relating wholly or mainly to the construction of a statute or statutory instrument; OR
- A point of law where the High Court judge is bound by a previous decision of the Court of Appeal or Supreme Court/House of Lords, and was fully prepared to rule differently if not bound.
The Supreme Court must also consider it expedient to hear the appeal directly.
Worked Example 1.1
A High Court case concerning the interpretation of a complex provision in the Companies Act 2006 has significant implications for thousands of businesses. The High Court judge feels bound by a previous Court of Appeal decision but believes it was wrongly decided and would have ruled differently. The losing party wishes to appeal.
What is the most direct route of appeal available, assuming the necessary conditions are met?
Answer: The most direct route would be a leapfrog appeal to the Supreme Court. The case involves a point of law of general public importance related to statutory interpretation, and the judge was bound by Court of Appeal precedent but would have decided otherwise. If the High Court judge grants a certificate and the Supreme Court gives permission, the appeal can bypass the Court of Appeal.
Permission to Appeal
Permission is required for almost all appeals to the Supreme Court. Without permission, the appeal cannot proceed. This acts as a filter, ensuring the Court's resources are focused on cases of genuine national significance.
The Test: Point of Law of General Public Importance
The primary test for granting permission is whether the appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time (s.40 Constitutional Reform Act 2005 for civil appeals; s.33(2) Criminal Appeal Act 1968 for criminal appeals).
Key Term: Point of Law of General Public Importance A legal question whose resolution will affect the public generally or a significant section of the public, and which is sufficiently important to merit consideration by the Supreme Court.
This test has two limbs:
- Arguable point of law: There must be a genuine legal question that is not straightforward or already settled, and the argument must have some merit.
- General public importance: The point of law must transcend the specific interests of the parties involved and have wider implications for society or the development of the law.
The application for permission is first made to the court whose decision is being appealed (e.g., the Court of Appeal). If that court refuses permission, a further application can be made directly to the Supreme Court. An Appeal Panel of (usually three) Justices considers applications on paper initially.
Worked Example 1.2
A dispute between two neighbours over the precise boundary line of their gardens reaches the Court of Appeal. The Court applies established principles of property law and finds for one party. The losing party believes the Court of Appeal misinterpreted a minor aspect of a previous House of Lords decision, although the point is unlikely to affect many other people.
Is the Supreme Court likely to grant permission to appeal?
Answer: Unlikely. While there might be an arguable point of law regarding the interpretation of the House of Lords decision, the case appears to lack general public importance. Boundary disputes, while important to the parties, rarely raise points of law that affect a significant section of the public or require clarification by the highest court.
The Hearing and Judgment
If permission is granted, the appeal proceeds to a hearing before a panel of (usually five, but sometimes more for very significant cases) Justices. The parties submit written cases, and their legal representatives present oral arguments. The Supreme Court does not hear evidence or re-evaluate facts; it focuses solely on the points of law certified for appeal.
Following the hearing, the Justices deliberate and produce a written judgment, which sets out their decision and the legal reasoning behind it. Each Justice may write their own opinion, concurring with the majority or dissenting. The majority decision forms the judgment of the Court.
Impact on Precedent
The Supreme Court's decisions are binding on all lower courts in England and Wales through the doctrine of judicial precedent (stare decisis). Its judgments establish authoritative interpretations of the law.
Key Term: Ratio Decidendi The legal principle or rule relied upon by the court to decide the case; the binding part of a judgment.
Overruling Previous Decisions (Practice Statement 1966)
While the Supreme Court generally follows its own previous decisions (and those of the House of Lords) to maintain legal certainty, it is not absolutely bound by them. The Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 allows the Supreme Court to depart from a previous decision when it appears right to do so.
Key Term: Practice Statement 1966 The statement issued by the House of Lords declaring that it could depart from its own previous decisions in appropriate cases to avoid injustice or permit the proper development of the law. This power is now exercised by the Supreme Court.
This power is used sparingly, typically where the earlier decision is considered wrong, outdated, or causing injustice. Departure requires careful consideration of the impact on legal certainty versus the need for the law to develop. Landmark cases like R v Jogee [2016] UKSC 8 (overruling principles on joint enterprise liability) demonstrate this power in action.
Exam Warning
Do not assume that every appeal has merit or will be granted permission. The Supreme Court hears only a very small number of cases each year. The 'point of law of general public importance' test is a significant hurdle. Focus on whether a scenario truly raises a novel or significant legal point affecting the wider public.
Revision Tip
When considering appeal routes, always identify the court hierarchy correctly. Remember the standard route (via Court of Appeal) and the exceptional leapfrog route (direct from High Court). Pay close attention to the strict criteria for permission to appeal.
Key Point Checklist
This article has covered the following key knowledge points:
- The Supreme Court is the final court of appeal for England and Wales, hearing appeals on points of law.
- Its establishment under the Constitutional Reform Act 2005 replaced the appellate function of the House of Lords.
- Appeals typically come from the Court of Appeal, but direct 'leapfrog' appeals from the High Court are possible in specific circumstances.
- Permission to appeal is required and is granted only if the appeal raises an arguable point of law of general public importance.
- The Supreme Court's decisions are binding on all lower courts.
- While generally following its own precedent, the Supreme Court can depart from previous decisions under the Practice Statement 1966 when it appears right to do so.
Key Terms and Concepts
- Supreme Court
- Jurisdiction
- Appeal
- Appellant
- Respondent
- Leapfrog Appeal
- Point of Law of General Public Importance
- Ratio Decidendi
- Practice Statement 1966
