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Home > Publications > Consultation papers

A Lord Chancellor's Department Consultation Paper
Reform of the Family Appeals System

March 2000

» Introduction
» Chapter One       General Principles
» Chapter Two       The Access to Justice Act 1999
» Chapter Three     Family Proceedings Court
» Chapter Four      County Court
» Chapter Five       High Court & Court of Appeal
» Chapter Six        Method of Hearing

» Annex A      Summary
» Annex B      Family Appeals Review Group Membership
» Annex C      Access to Justice Act & Explanatory Notes
» Annex D      Civil Procedure Rules Part 52

Introduction

In September 1997 Sir Jeffery Bowman published his Report to the Lord Chancellor, Review of the Court of Appeal (Civil Division). The Report made recommendations to provide for the same principles of proportionality and efficiency inherent in the civil justice reforms generally, to be applied equally to the workings of the civil appeals system.

The Report also identified the current system of appeals in family cases as being extremely complex. It found the routes of appeal to be diverse and likely to be a source of confusion for litigants and the courts. Accordingly, it recommended that the routes of appeal should be examined carefully by a specialist committee, with a view to rationalising them and bringing them in line with the underlying principles for civil appeals. The Family Appeals Review Group, under the chairmanship of Lord Justice Thorpe, undertook this task and reported to the Lord Chancellor in July 1998.

On 27 September 1999, the Access to Justice Act 1999 introduced new provisions which apply to all civil appeals, including family. New Civil Procedure Rules will be introduced in May this year.

This Consultation Paper sets out, and seeks comment upon specific proposals for implementing reforms to the family appeals system.

If you would like to comment on any of the proposals in this Consultation Paper, please send your responses to the following address by 25 April 2000: -

George Lock
Civil Justice Division (Room 3.13)
Lord Chancellor's Department
Selborne House
54-60 Victoria Street
London SW1E 6QW
Fax: 020-7210 8559

e-mail: glock

We may make any comments we receive publicly available. Respondents who prefer their comments to remain confidential are therefore asked to mark this clearly on their response.

Further copies of this Consultation Paper can be obtained from the address above, or by telephoning 020-7210 0657 (electronic copies in Word 97 or v6.0 format can be sent via e-mail on request). Copies of the Bowman Report and the Report of the Family Appeals Review Group can also be supplied on request.

Chapter One: General Principles

1.1 There are certain basic principles that should underlie a successful system of civil justice. These were spelt out in Lord Woolf's 'Access to Justice' Report of July 1996, which forms the basis of the civil justice reforms generally. A civil justice system should;

1.2 Appeal procedures clearly play an important role in our civil and family justice systems. However, it is important to balance against this the fact that:

1.3. The Bowman Review set out further principles which were applicable specifically to the appeals process. These included:

1.4 The Bowman Review commented that the routes of appeal in family cases are extremely complex. It considered that current routes are diverse and are likely to be a source of confusion for litigants and the courts. The Review Team also recognised that the question of how family proceedings are handled by the courts is a particularly sensitive one. For these reasons the Review Team considered that it did not have time to consider this area in sufficient detail, to allow it to put forward recommendations with confidence. It recommended that routes of appeal should be examined by a specialist committee, with a view to rationalising them and bringing them in line with the Bowman Report's underlying principles for appeals.

> 1.5 In January 1998, the Lord Chancellor asked Lord Justice Thorpe to chair a specialist Family Appeals Review Group ('FARG') (Annex B) for this purpose. FARG reported in July 1998, and endorsed the principles set out by Sir Jeffery Bowman.

Chapter Two: The Access To Justice Act 1999

2.1 The appeal provisions of the Access to Justice Act 1999 (Annex C) came into force on 27th September 1999. The following provisions have applied to all civil appeals, including family, since that date:

2.2 Routes of appeal may be changed, by order of the Lord Chancellor, in accordance with section 56 of the Act. Other provisions of the Act are subject to rules of court. Part 52 of the Civil Procedure Rules will be introduced on 2nd May (Annex D).

2.3 The following Chapters set out proposals, and seek views, on the procedures and routes of appeal for family cases.

Chapter Three: Family Proceedings Court

3.1 The number and nature of appeals which may lie from magistrates sitting as a Family Proceedings Court are particularly complex, having been developed piecemeal over the years through a range of different statutes. FARG identified four different ways in which a Family Proceedings matter could be 'appealed', namely by:

1) notice of appeal;
2) notice of motion;
3) case stated; or
4) judicial review.

Even within a single case, where a party wishes to appeal on more than one point, doing so may require two different methods of appeal . For example, where justices vary a periodical payment order, and at the same time determine an application for remission of arrears, the appeal in relation to variation is by way of Notice of Motion to the Divisional Court, but the appeal in relation to remission is by way of case stated, restricted to errors of law or excess of jurisdiction. The Court of Appeal, in Berry -v- Berry [1987] Fam 1, remarked that this situation should be remedied.

3.2 The FARG Report recommended that appeals should be made only by a notice of appeal. There should be no more case stated appeals. Judicial review, which is not an appeal, would remain as a separate potential remedy, where appropriate.

3.3 The Lord Chancellor proposes that, all appeals made from the Family Proceedings Court should be made by an appeal notice, requiring the appellant to state the original order, the grounds for appeal, and the order now sought. Judicial review should remain as a distinct remedy, where appropriate (subject to any recommendations arising from the Review of the Crown Office List, due to report shortly).

3.4 Currently, all appeals from Family Proceedings Courts are made, as of right, to the High Court. The appellant lodges the appeal papers at the High Court Registry nearest the Family Proceedings Court of first instance.

3.5 FARG considered that an allocation system was the key to a new appellate structure and recommended that appeals should be allocated by the Justice's Clerk to either a District Judge or Circuit Judge in the county court, or to the High Court, as appropriate. That allocation could be reviewed by the appellate court, either on its own motion or by application of a party to the case.

3.6 Diverse routes of appeal for family cases were, however, identified by the Bowman Review as a likely source of confusion for litigants: it recommended that appeal routes should be rationalised and brought in line with the underlying principles for civil appeals. A system which provides for Justices' Clerks to allocate appeals to varying levels of judge may not achieve this and appellants will have no certainty as to where that appeal will be heard.

3.7 The Lord Chancellor seeks views on whether:

3.8 FARG considered that permission should not be required for appeals from Family Proceedings Courts, whether the decision challenged is that of lay justices or a stipendiary magistrate.

3.9 The Lord Chancellor seeks views on whether appeals from the decision of a Family Proceedings Court should remain as of right, without the requirement for permission to appeal.

Chapter Four: County Court

Decision of District Judge

4.1 Appeals from the decision of a District Judge in the county court are currently heard by a Circuit Judge, except in the Principal Registry of the Family Division ('PRFD'), where they are dealt with by a High Court judge.

4.2 The FARG Report recommended that an appeal from a District Judge in the county court should in future be made direct to the High Court, which could then release the matter to a suitably experienced section 9 Judge (a Circuit Judge authorised to sit in High Court work under s.9(1) of the Supreme Court Act 1981). In making this recommendation, the FARG Report commented on the anomaly of the route of appeal from the District Judges in the PRFD and the concurrent jurisdiction of District and Circuit Judges in many areas of family law.

4.3 One of the main aims of the reforms to civil appeals, has been to ensure that appeals are heard at the lowest appropriate level and are dealt with in ways which are proportionate to the importance and complexity of the appeal. Generally, an appeal will be to the next level of judge. During the passage of the Access to Justice Bill, the Lord Chancellor indicated in non-family civil cases (where there is also concurrent jurisdiction), routes of appeal would continue to provide for an appeal from the District Judge in the county court to be heard by a Circuit Judge. This reflects the current routes of appeal in both civil and family matters and means that the appeal can often be dealt with locally, resulting in less delay, and lower travel and court costs for litigants.

4.4 The FARG Report refers to a lack of expertise on the Circuit Bench, but comments that this has been addressed in ancillary relief cases through the introduction of 'ticketing'. This is a system whereby those Circuit Judges who have suitable skills and experience in ancillary relief work are specially 'ticketed' to hear appeals in ancillary relief cases from District Judges. In the five years since the system was originally introduced in the Western Circuit, it has been extended nation-wide.

4.5 Similar safeguards are in place in proceedings under the Children Act 1989 in the county courts, where District and Circuit judges must be specially nominated for family work by the Lord Chancellor. When nominated in this way, the Judges receive special family work guidance to ensure they have the required skills and knowledge. There are no proposals to change this nomination system.

4.6 The Lord Chancellor seeks views on the route of appeal for family cases, from District Judges sitting in the county court:

It is proposed that appeals from district judges in the Principal Registry of the Family Division should remain to a High Court judge (the definition of which here includes a section 9 judge).

4.7 The FARG Report recommended that the requirement for permission should not be extended to appeals from the decisions of District Judges. However, the introduction of a permission filter has proved particularly effective in filtering out unmeritorious cases, where it already exists in family cases. For example, in the last three legal years in the Court of Appeal, the success rate for family appeals requiring permission has been far higher than for those which do not. The success rate for family appeals requiring permission has also been significantly higher than that for other types of appeal requiring permission, over the same period. The Court of Appeal's Review of the Legal Year 1997/98 indicated that only 29% of family appeals that did not require permission were successful, compared to a success rate of 63% for those family appeals that were subject to a permission filter. The success rate for all civil appeals during this period was 22% and 43% respectively. Figures supplied by the Civil Appeals Office for the year ending 30th September 1999 demonstrate a similar disparity with only 33% of family appeals that do not require permission being successful compared to a success rate of 51% for those family appeals that have been subject to a permission filter. The success rate for all civil appeals, during this period, was 22% and 34% respectively.

> 4.8 The Lord Chancellor proposes that appeals in family cases from a decision of a District Judge should be subject to the requirement for permission.

Decision Of Circuit Judge

4.9 Appeals from a decision of a Circuit Judge currently lie to the Court of Appeal. The Bowman Review highlighted that the Court of Appeal was increasingly being asked to deal with cases that were of insufficient weight for a court of at least two, and probably three very senior and hard pressed judges. Appeals need to be dealt with in ways that are proportionate to the grounds of complaint and subject matter of the dispute. Accordingly, certain appeals that currently reach the Court of Appeal should no longer do so.

> 4.10 The FARG Report recommended that the appeal should be subject to allocation, by the court granting permission, either to the High Court or the Court of Appeal, but could not be released to a section 9 Judge or deputy. This raises the same questions as to diversity and certainty as are set out in paragraph 3.6.

4.11 However, since FARG reported, Section 57 of the Access to Justice Act has provided that a county court or High Court can direct that an appeal that would normally be heard by them should be heard instead by the Court of Appeal. The circumstances in which a court may exercise this power will be set out in rules of court. New Rules for non-family cases provide for referral where a case raises an important point of principle or practice or where there is some other compelling reason for the Court of Appeal to hear the matter. This ensures that individual appeals of substance and merit that warrant the attention of the Court of Appeal will continue to receive it.

> 4.12 The Lord Chancellor seeks views on whether an appeal in a family case, from the decision of a Circuit Judge should:

It is proposed that appeals from a Circuit Judge should require permission

Chapter Five: High Court & Court Of Appeal

5.1 Currently, appeals from District Judges sitting in the High Court are to a full Family Division Judge, without a permission requirement. Appeals from a Family Division Judge are to the Court of Appeal, with permission. Although the FARG Report stated that there was little need for change to the appeals process in the High Court, for the reasons given in paragraph 4.7 it is proposed that there should be a requirement for permission in all cases.

5.2 The Lord Chancellor proposes that an appeal in a family case from a District Judge sitting in the High Court should continue to be to a Family Division Judge. An appeal from a Family Division Judge should continue to be to the Court of Appeal. Both levels of appeal should be subject to the requirement of permission.

Chapter Six: Method Of Hearing

6.1 FARG raised the issue of the manner in which family appeals from District Judges should be heard. Although they agreed that there might be some circumstances when fresh evidence should be admissible for an appeal, the Group did not agree on;

a) what restrictions should be put on admissibility, and
b) under Family Proceedings Rules 8.1 (2) and (3), whether the appellate judge should be entirely free to substitute their own discretion for that of the District Judge.

6.2 The current position with regard to ancillary relief appeals, is that although there is no absolute right to a completely new hearing of the case, the admission of new evidence is at the discretion of the judge, and the appellate judge is free to exercise discretion in the case, unfettered by the previous decision of the district judge. Following two High Court rulings of 1992, the leading case supporting this interpretation is currently the Court of Appeal's Marsh -v- Marsh [1993] 1 WLR 744. However, the continuation of this system was supported by only a minority of FARG.

6.3 The majority of FARG members recommended that all family appeals should in future be heard on the G -v- G basis [1985] 1 WLR 647 (Endnote 1), for reasons of consistency, recognition of the calibre of District Judges, and encouraging parties to present the best possible case at the first instance rather than relying on getting a 'second bite of the cherry'. In the FARG majority view, the concern that evidence of changed circumstances since the first-instance hearing should be admissible for the appeal is met by a relaxed application of the criteria established in the Court of Appeal case of Ladd -v- Marshall [1954] 1 WLR 1489.

6.4 This view is reflected in the new rules for civil appeals. These provide that all civil appeals are to be by way of review, unless a practice direction makes specific provision otherwise or, the court considers that in the circumstances of a particular appeal it would be in the interests of justice to hold a re-hearing. In addition, the rules also allow fresh evidence if the court so directs, which provides the flexibility required to meet the concern of changed circumstances since the first instance trial.

6.5 The Lord Chancellor proposes that, in line with the new Civil Procedure Rules on Appeals and the majority view of FARG, all family appeals should be limited to a review of the decision of the first instance judge. Evidence which was not before the first instance hearing will not be allowed on appeal unless the court directs.

ANNEX A: SUMMARY

1) The Lord Chancellor proposes that, all appeals made from the Family Proceedings Court should be made by an appeal notice, requiring the appellant to state the original order, the grounds for appeal, and the order now sought. Judicial review should remain as a distinct remedy, where appropriate (subject to any recommendations arising from the Review of the Crown Office List, due to report shortly). (Paragraph 3.3).

2) The Lord Chancellor seeks views on whether:

3) The Lord Chancellor seeks views on whether appeals from the decision of a Family Proceedings Court should remain as of right, without the requirement for permission to appeal. (Paragraph 3.9).

4) The Lord Chancellor seeks views on the route of appeal for family cases, from District Judges sitting in the county court:

It is proposed that appeals from district judges in the Principal Registry of the Family Division should remain to a High Court judge (the definition of which here includes a section 9 judge). (Paragraph 4.6).

5) The Lord Chancellor proposes that appeals in family cases from a decision of a District Judge should be subject to the requirement for permission. (Paragraph 4.8).

6) The Lord Chancellor seeks views on whether an appeal in a family case, from the decision of a Circuit Judge should:

It is proposed that appeals from a Circuit Judge should require permission. (Paragraph 4.12).

7) The Lord Chancellor proposes that an appeal in a family case from a District Judge sitting in the High Court should continue to be to a Family Division judge. An appeal from a Family Division judge should continue to be to the Court of Appeal. Both levels of appeal should be subject to the requirement of permission. (Paragraph 5.2).

8) The Lord Chancellor proposes that, in line with the new Civil Procedure Rules on Appeals and the majority view of FARG, all family appeals should be limited to a review of the decision of the first instance judge. Evidence which was not before the first instance hearing will not be allowed on appeal unless the court directs. (Paragraph 6.5).

ANNEX B: FAMILY APPEALS REVIEW GROUP MEMBERSHIP

The Rt Hon. Lord Justice Thorpe (Chairman)

The Honourable Mr Justice Wall
Family Division Bench

His Honour Judge Shawcross
Council of Circuit Judges

The Senior District Judge
Principal Registry of the Family Division

District Judge Bird
Association of District Judges

Mr Nicholas Mostyn QC
Family Law Bar Association

Mr Richard Sax
Law Society

Miss Lesley A Newton
Young Street Chambers, Manchester

Ms Peggy Ray
Messrs Goodman Ray, London

Professor Rebecca Bailey-Harris
Dept. of Law, Bristol University

Mrs Elaine Laken
Justice's Clerks Society

Mr Nicholas Crichton
Metropolitan Stipendiary Magistrate

Mr Malcolm Grundy JP
Magistrates' Association Family Proceedings Committee

Mr Philip Thomson
Child Care Joint Liaison Group (Local Authority Solicitors)

Miss Joy Julien
Citizens Advice Bureau, Royal Courts of Justice

ANNEX C: ACCESS TO JUSTICE ACT 1999 & EXPLANATORY NOTES

Section 54 (Permission to appeal):

(1) Rules of court may provide that any right of appeal to --

(a) a county court,
(b) the High Court, or
(c) the Court of Appeal,

may be exercised only with permission.

(2) This section does not apply to a right of appeal in a criminal cause or matter.

(3) For the purposes of subsection (1) rules of court may make provision as to the classes of case in which a right of appeal may be exercised only with permission,

(a) the court or courts which may give permission for the purposes of this section,
(b) any considerations to be taken into account in deciding whether permission should be given, and
(c) any requirements to be satisfied before permission may be given, and may make different provision for different circumstances.

(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).

(5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal.

(6) For the purposes of this section a right of appeal to the Court of Appeal includes

(a) the right to make an application for a new trial, and
(b) the right to make an application to set aside a verdict, finding or judgment in any cause or matter in the High Court which has been tried, or in which any issue has been tried, by a jury.

Explanatory Note:

This section allows rules of court to provide, for all levels of court, that the permission of the court is needed to exercise a right of appeal in a civil case. At present, permission is required for most cases going to the Civil Division of the Court of Appeal, but not elsewhere. The new Civil Procedure Rules on appeals provide that, with few exceptions, permission to appeal is required for all appeals to the county courts, High Court or Civil Division of the Court of Appeal. The exceptions will include orders affecting the liberty of the individual; (appeals against committal to prison, refusal to grant habeas corpus, and the making of secure accommodation orders under section 25 of the Children Act 1989 are currently excepted from the requirement to seek permission to appeal to the Court of Appeal). There will be no appeal against a decision of the court to give or refuse permission, but this does not affect any right under rules of court to make a further application for permission to the same or another court.

A secure accommodation order enables a local authority to place a child in care in accommodation which is designed to restrict his or her liberty.

Section 55 (Second appeals):

(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that .

(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it.

(2) This section does not apply in relation to an appeal in a criminal cause or matter.

Explanatory Note:

This section provides that, where a county court or the High Court has decided a matter brought on appeal, there will be no possibility of a further appeal of that decision, unless the appeal would raise an important point of principle or practice, or there is some other compelling reason it to be heard. All applications for permission to bring a further appeal must be made to the Court of Appeal, regardless of the court which heard the first appeal. If permission is given, the appeal will be heard by the Court of Appeal.

Section 56 (Power to prescribe alternative destination of appeals):

(1) The Lord Chancellor may by order provide that appeals which would otherwise lie to .

(a) a county court,
(b) the High Court, or
(c) the Court of Appeal,

shall lie instead to another of those courts, as specified in the order.

(2) This section does not apply to an appeal in a criminal cause or matter.

(3) An order under subsection (1) .

(a) may make different provision for different classes of proceedings or appeals, and
(b) may contain consequential amendments or repeals of enactments.

(4) Before making an order under subsection (1) the Lord Chancellor shall consult .

(a) the Lord Chief Justice,
(b) the Master of the Rolls,
(c) the President of the Family Division, and
(d) the Vice-Chancellor.

(5) An order under subsection (1) shall be made by statutory instrument.

(6) No such order may be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

(7) For the purposes of this section an application to have a case stated for the opinion of the High Court constitutes an appeal.

Explanatory Note:

This section enables the Lord Chancellor to vary, by order, the routes of appeal for appeals to and within the county courts, the High Court, and the Civil Division of the Court of Appeal. Before making an order, the Lord Chancellor will be required to consult the Heads of Division, and any order will be subject to Parliamentary approval under the affirmative resolution procedure. The intention is that the following appeal routes will be prescribed in non-family cases:

The Heads of Division are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor.

A decision is interlocutory if it does not determine the final outcome of the case.

Masters are judicial officers of the High Court who decide interlocutory issues.

The Lord Chancellor will also use this power to determine routes of appeal in family matters.

Section 57 (Assignment of appeals to Court of Appeal):

(1) Where in proceedings in a county court or the High Court a person appeals, or seeks permission to appeal, to a court other than the Court of Appeal or the House of Lords .

(a) the Master of the Rolls, or
(b) the court from which or to which the appeal is made, or from which permission is being sought,

may direct that the appeal shall be heard instead by the Court of Appeal.

(2) The power conferred by subsection 1(b) shall be subject to rules of court.

Explanatory Note:

This section provides for the Master of the Rolls, or a lower court, to direct that an appeal that would normally be heard by a county court or the High Court should be heard instead by the Court of Appeal. The power conferred on courts below the Court of Appeal by this section is subject to rules of court.

Section 59 (Composition):

In section 54 of the Supreme Court Act 1981 (composition of court of civil division of Court of Appeal), for subsections (2) to (4) (number of judges) substitute .

"(2) Subject as follows, a court shall be duly constituted for the purpose of exercising any of its jurisdiction if it consists of one or more judges.

(3) The Master of the Rolls may, with the concurrence of the Lord Chancellor, give (or vary or revoke) directions about the minimum number of judges of which a court must consist if it is to be duly constituted for the purpose of any description of proceedings.

(4) The Master of the Rolls, or any Lord Justice of Appeal designated by him, may (subject to any directions under subsection (3)) determine the number of judges of which a court is to consist for the purpose of any particular proceedings.

(4A) The Master of the Rolls may give directions as to what is to happen in any particular case where one or more members of a court which has partly heard proceedings are unable to continue."

Explanatory Note:

This section makes provision about the number of judges of which a court must be constituted for the Court of Appeal to hear appeals. Previously section 54 of the Supreme Court Act 1981 provided that the Court of Appeal was constituted to exercise its jurisdiction if it consisted of an uneven number of judges not less than three (or two judges in certain limited circumstances). Section 59 of this Act amends section 54 of the 1981 Act by providing that the Court is duly constituted for the exercise of its jurisdiction by one or more judges, The Master of the Rolls with the concurrence of the Lord Chancellor, may give directions about the minimum number of judges of which a court must consist for specified types of proceedings. Subject to any directions, the Master of the Rolls, or a Lord Justice of Appeal designated by him for the purpose, will be able to determine the number of judges to hear any particular appeal.

Section 60 (Calling into question of incidental decisions):

(1) For section 58 of the Supreme Court Act 1981 (exercise of incidental jurisdiction in civil division of Court of Appeal) substitute .

58.. (1) Rules of court may provide that decisions of the Court of Appeal which.
(a) are taken by a single judge or any officer or member of staff of that court in proceedings incidental to any cause or matter pending before the civil division of that court, and
(b) do not involve the determination of an appeal or of an application for permission to appeal,
may be called into question in such manner as may be prescribed.

(2) No appeal shall lie to the House of Lords from a decision which may be called into question pursuant to rules under subsection (1)."

Explanatory Note:

This section takes account of the abolition (by section 70) of the post of registrar of civil appeals, by substituting for section 58 of the Supreme Court Act 1981 a provision that incidental decisions by a single judge or any officer or member of staff of the Court of Appeal may be challenged as prescribed by rules of court. No appeal shall lie to the House of Lords from a decision which may be challenged under such rules.

Under paragraph 2 of Schedule 1 to the Civil Procedure Act 1997, it is possible for rules of court to devolve functions of the court to officers or other staff of the court.

Section 70 (Registrar of civil appeals):

The office of registrar of civil appeals is abolished.

Explanatory Note:

This section abolishes the post of registrar of civil appeals. The registrar of civil appeals is a judicial officer provided for by Schedule 2 to the Supreme Court Act 1981. The post has both judicial and administrative functions. The administrative functions have now been taken over by a civil servant appointed to manage the Civil Appeals Office.

ANNEX D: PART 52 APPEALS

Contents of this Part

I GENERAL RULES ABOUT APPEALS

Scope and interpretation Rule 52.1
Parties to comply with practice direction Rule 52.2
Permission Rule 52.3
Appellant's notice Rule 52.4
Respondent's notice Rule 52.5
Variation of time Rule 52.6
Stay Rule 52.7
Amendment of appeal notice Rule 52.8
Striking out appeal notice, setting aside or imposing conditions on permission to appeal Rule 52.9
Appeal court's powers Rule 52.10
Hearing of appeals Rule 52.11
Non-disclosure of Part 36 offers and payments Rule 52.12
II SPECIAL PROVISIONS APPLYING TO THE COURT OF APPEAL
Second appeals to the court Rule 52.13
Assignment of appeals to the Court of Appeal Rule 52.14
Judicial review appeals Rule 52.15
Who may exercise the powers of the Court of Appeal Rule 52.16

I - GENERAL RULES ABOUT APPEALS

Scope and interpretation

52.1 (1) The rules in this Part apply to appeals to-

(a) the civil division of the Court of Appeal;

(b) the High Court; and

(c) a county court.

(2) This Part does not apply to-

(a) an appeal against an order under Part 27 (the small claims track); or

(b) an appeal in detailed assessment proceedings against a decision of an authorised court officer.

(Rules 27.12 and 27.13 deal with appeals against orders under Part 27 (the small claims track))
(Rules 47.21 to 47.26 deal with appeals against a decision of an authorised court officer in detailed assessment proceedings)
(3) In this Part-

(a) "appeal" includes an appeal by way of case stated;

(b) "appeal court" means the court to which an appeal is made;

(c) "lower court" means the court, tribunal or other person or body from whose decision an appeal is brought;

(d) "appellant" means a person who brings or seeks to bring an appeal;

(e) "respondent" means-

(i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

(ii) a person who is permitted by the appeal court to be a party to the appeal; and

(f) "appeal notice" means an appellant's or respondent's notice.

(4) This Part is subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal.

Parties to comply with the practice direction

52.2 All parties to an appeal must comply with the relevant practice direction.
Permission

52.3 (1) An appellant or respondent requires permission to appeal-

(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against-
(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section 25 of the Children Act 1989 (Endnote 2); or

(b) as provided by the relevant practice direction.

(Other enactments may provide that permission is required for particular appeals)
(2) An application for permission to appeal may be made-

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

(Rule 52.4 sets out the time limits for filing an appellant's notice at the appeal court. Rule 52.5 sets out the time limits for filing a respondent's notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice (see rules 52.4(2) and 52.5(3))
(Rule 52.13(1) provides that permission is required from the Court of Appeal for all appeals to that court from a decision of a county court or the High Court which was itself made on appeal)
(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.
(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.
(6) Permission to appeal will only be given where-

(a) the court considers that the appeal would have a real prospect of success; or

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

(7) An order giving permission 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)

Appellant's notice

52.4 (1) Where the appellant seeks permission from the appeal court it must be requested in the appellant's notice.
(2) The appellant must file the appellant's notice at the appeal court within-

(a) such period as may be directed by the lower court; or

(b) where the court makes no such direction, 14 days after the date of the decision of the lower court that the appellant wishes to appeal.

(3) Unless the appeal court orders otherwise, an appeal notice must be served on each respondent-

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

Respondent's notice

52.5 (1) A respondent may file and serve a respondent's notice.
(2) A respondent who-

(a) is seeking permission to appeal from the appeal court; or

(b) wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court,

must file a respondent's notice.

(3) Where the respondent seeks permission from the appeal court it must be requested in the respondent's notice.
(4) A respondent's notice must be filed within-

(a) such period as may be directed by the lower court; or

(b) where the court makes no such direction, 14 days, after the date in paragraph (5).

(5) The date referred to in paragraph (4) is-

(a) the date the respondent is served with the appellant's notice where-

(i) permission to appeal was given by the lower court; or

(ii) permission to appeal is not required;

(b) the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or

(c) the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.

(6) Unless the appeal court orders otherwise a respondent's notice must be served on the appellant and any other respondent.

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

Variation of time

52.6 (1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.
(2) The parties may not agree to extend any date or time limit set by-

(a) these Rules;

(b) the relevant practice direction; or

(c) an order of the appeal court or the lower court.

(Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired))

(Rule 3.1(2)(b) provides that the court may adjourn or bring forward a hearing)

Stay(GL)

52.7 Unless-

(a) the appeal court or the lower court orders otherwise; or

(b) the appeal is from the Immigration Appeal Tribunal,

an appeal shall not operate as a stay of any order or decision of the lower court.

Amendment of appeal notice

52.8 An appeal notice may not be amended without the permission of the appeal court.

Striking out(GL) appeal notices and setting aside or imposing conditions on permission to appeal

52.9 (1) The appeal court may-

(a) strike out the whole or part of an appeal notice;

(b) set aside (GL) permission to appeal in whole or in part;

(c) impose or vary conditions upon which an appeal may be brought.

(2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.
(3) Where a party was present at the hearing at which permission was given he may not subsequently apply for an order that the court exercise its powers under sub- paragraphs (1)(b) or (1)(c).

Appeal court's powers

52.10 (1) In relation to an appeal the appeal court has all the powers of the lower court.
(Rule 52.1(4) provides that this Part is subject to any enactment that sets out special provisions with regard to any particular category of appeal . where such an enactment gives a statutory power to a tribunal, person or other body it may be the case that the appeal court may not exercise that power on an appeal)

The appeal court has power to-

(a) affirm, set aside or vary any order or judgment made or given by the lower court;

(b) refer any claim or issue for determination by the lower court;

(c) order a new trial or hearing;

(d) make orders for the payment of interest;

(e) make a costs order.

In an appeal from a claim tried with a jury the Court of Appeal may, instead of ordering a new trial-

(a) make an order for damages(GL); or

(b) vary an award of damages made by the jury.

The appeal court may exercise its powers in relation to the whole or part of an order of the lower court.

(Part 3 contains general rules about the court's case management powers)

Hearing of appeals

52.11 (1) Every appeal will be limited to a review of the decision of the lower court unless-

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive-

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was-

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.

Non-disclosure of Part 36 offers and payments

52.12 (1) The fact that a Part 36 offer or Part 36 payment has been made must not be disclosed to any judge of the appeal court who is to hear and finally determine an appeal until all questions (other than costs) have been determined.
(2) Paragraph (1) does not apply if the Part 36 offer or Part 36 payment is relevant to the substance of the appeal.
(3) Paragraph (1) does not prevent disclosure in any application in the appeal proceedings if disclosure of the fact that a Part 36 offer or Part 36 payment has been made is properly relevant to the matter to be decided.

II SPECIAL PROVISIONS APPLYING TO THE COURT OF APPEAL

Second appeals to the court

52.13 (1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.
(2) The Court of Appeal will not give permission unless it considers that-

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it.

Assignment of appeals to the Court of Appeal

52.14 (1) Where the court from or to which an appeal is made or from which permission to appeal is sought ("the relevant court") considers that-

(a) an appeal which is to be heard by a county court or the High Court would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it,

the relevant court may order the appeal to be transferred to the Court of Appeal.

(The Master of the Rolls has the power to direct that an appeal which would be heard by a county court or the High Court should be heard instead by the Court of Appeal . see section 57 of the Access to Justice Act 1999) (Endnote 3)
(2) The Master of the Rolls or the Court of Appeal may remit an appeal to the court in which the original appeal was or would have been brought.

Judicial review appeals

52.15 (1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.
(2) An application in accordance with paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review.
(3) On an application under paragraph (1), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.
(4) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (3), the case will proceed in the High Court unless the Court of Appeal orders otherwise.

Who may exercise the powers of the Court of Appeal

52.16 (1) A court officer assigned to the Civil Appeals Office who is-

(a) a barrister; or

(b) a solicitor

may exercise the jurisdiction of the Court of Appeal with regard to the matters set out in paragraph (2) with the consent of the Master of the Rolls.

(2) The matters referred to in paragraph (1) are-

(a) any matter incidental to any proceedings in the Court of Appeal;

(b) any other matter where there is no substantial dispute between the parties; and

(c) the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction.

(3) A court officer may not decide an application for-

(a) permission to appeal;

(b) bail pending an appeal;

(c) an injunction (GL);

(d) a stay (GL) of any proceedings, other than a temporary stay of any order or decision of the lower court over a period when the Court of Appeal is not sitting or cannot conveniently be convened.

(4) Decisions of a court officer may be made without a hearing.
(5) A party may request any decision of a court officer to be reviewed by the Court of Appeal.
(6) At the request of a party, a hearing will be held to reconsider a decision of-

(a) a single judge; or

(b) a court officer,

made without a hearing.

(7) A single judge may refer any matter for a decision by a court consisting of two or more judges.
(Section 54(4) of the Access to Justice Act 1999 provides that there is no appeal from the decision on an application for permission to appeal)

(Section 58(2) of the Supreme Court Act 1981

(Endnote 4) provides that there is no appeal to the House of Lords from decisions of the Court of Appeal that-

(a) are taken by a single judge or any officer or member of staff of that court in proceedings incidental to any cause or matter pending before the civil division of that court; and

(b) do not involve the determination of an appeal or of an application for permission to appeal,

and which may be called into question by rules of court. Rules 52.16(5) and (6) provide the procedure for the calling into question of such decisions)

Endnotes:

  1. ( ) The G . v- G basis is that an appellate court when reviewing the decision of a judge exercising his discretion, can only intervene where satisfied not only that the judge has made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion is that he has erred in the exercise of that discretion.

  2. 1989 c.41.

  3. 1999 c.22.

  4. 1981 c.54; section 58 was amended by section 60 of the Access to Justice Act 1999 (c.22).

 


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