Court of Appeal of England and Wales - Procedure For Appeal

Procedure For Appeal

Sections 54 to 59 of the Access to Justice Act 1999 and Part 52 of the Civil Procedure Rules 1998 came into force on 2 May 2000, and created one universal appeals system; not all of these are to the Court of Appeal, with the principle used that an appeal should go to the next highest court in the hierarchy. Appeals are allowed if the decision in the court below was incorrect, or suffered from a serious procedural error or irregularity.

Almost all appeals require permission, a major innovation from the previous system, where appeals were, on the request of counsel, almost all automatically put through. The application for permission should be made to the lower court, although this is not mandatory; it may be asked of the appellate court itself. In Re T (A Child) EWCA Civ 1736, the Civil Division strongly advised that counsel apply at the lower courts, since the judge, fully aware of the facts, will take less time to process, there is no harm if the application fails or if it is approved but counsel decides not to proceed with the case and there are no additional costs involved. The only problem here is that judgments may occasionally be reserved, and only given later by post – there may not be an opportunity to ask for permission to appeal at the lower court.

The Court of Appeal, when considering an application for appeal, may decide based on the paper documents or refer the case to an oral hearing, something often done when it is apparent that a refusal of the written case will lead the applicant to send a second, oral application. If a written application is refused, the applicant may ask for an oral hearing to discuss the refusal. Under the Civil Procedure Rules 1998, the appeal must have "a real prospect of success", or there must be "some other compelling reason why the appeal should be heard" for it to be accepted.

Under certain, limited, circumstances, second appeals are allowed. This is when an appeal goes to the High Court or County Court and a party to the case wishes to appeal it further, to the Court of Appeal. Section 55(1) of the Access to Justice Act 1999 says that, when an appeal is made to a County Court or the High Court and that court makes a decision, no further appeal is allowed to the Court of Appeal unless the Court considers that the case raises "an important point of principle or practice" or "there is some other compelling reason for the Court of Appeal to hear it". In Tanfern Ltd v Cameron-MacDonald 1 WLR 1311 the Court commented on this limitation of second appeals, pointing out that the Lords Justices of Appeal were a valuable and scarce resource – it was necessary to impose limitations on appeals to prevent the Court and its judges becoming overburdened.

There are two sorts of hearings that the Court of Appeal can hold; reviews, and full rehearings. Section 52.11(1) of the Civil Procedure Rules 1998 establishes that appeals should always be reviews, unless there are individual circumstances that, "in the interest of justice", make a rehearing necessary. In its case law, the Court has emphasised that it is up to the individual panel of judges to decide whether to hold a review or rehearing, with the circumstances of the case playing a large part. In 2004 the Court heard 1,059 appeals, of which 295 were allowed and 413 directly dismissed.