Civil Appeal rule changes

New Rules for Civil Appeals now in force.

On 3rd October 2016 new rules came into force which had the effect of restructuring Part 52 of the Civil Procedure Rules, the body of court rules governing how civil appeals are dealt with in England and Wales (Civil Procedure Rules, Part 52, MoJ Web Site).

The new rules, inter alia, removed the automatic right to an oral hearing to renew an application for permission to appeal following the dismissal of such an application on the papers; changed the test for second appeals to require “a real prospect of success” to be shown in addition to there being an important point of principle or practice; placed greater reliance on decisions of “court officers” in determining written applications for permission to appeal; and implemented changes to the destination of most civil appeals.

While the majority of the above changes are clearly aimed at reducing the workload of the Court of Appeal, it is the first and last which will have the greatest perceived impact on court users.

Determination of Applications for Permission

Under the new rules, applications for permission to appeal will be determined on the papers and the automatic right to renew a denied application orally no longer exists. For a failed application to be renewed orally the putative appellant will need to show, pursuant to CPR r.52.6(1), that “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.”.

Test for Second Appeals

Applications for permission for second appeals must address the test set out in CPR r.52.7(2) which requires the court to be satisfied that: “a) the appeal would—

(i) have a real prospect of success; and

(ii) raise an important point of principle or practice; or

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

Court Officers to determine applications under certain circumstances

“Court Officers” are defined in the rules as being “a court officer assigned to the Civil Appeals Office who is a) a barrister; or b) a solicitor” (CPR r.52.24(1)). They are, therefore, not merely clerical in nature. The Court Officer may decide “a) any matter incidental to 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 (CPR r.52.24(2)).

Decisions of Court Officers are made without oral hearings unless the court officer decides otherwise (CPR r.52.24(4)). Parties may request the decision of a court officer to be reviewed by a single judge (CPR r.52.24(5) which review will usually be on the papers unless the single judge decides otherwise.

Destination of Appeals

With the replacement of the previous administrative order by the Access to Justice Act 1999 (Destination of Appeals) Order 2016 comes a significant change in the destination of first appeals in civil proceedings. With the exception of Family Court proceedings and Insolvency proceedings, appeals from the decisions of District Judges can only be heard by a Circuit Judge or a High Court Judge and an appeal from the decision of a Circuit Judge can only be heard by a High Court Judge. Only where the first instance decision being appealed was made by a High Court Judge will a first appeal lie to the Court of Appeal.

Undoubtedly this will significantly reduce the number of matters that the Court of Appeal has to deal with.

Transitional Provisions

Clearly with any change, let alone such significant changes, transitional provisions apply which deal with appeal notices filed prior to 3rd October 2016. Essentially, the transitional measures mean that appeal notices filed prior to 3rd October 2016 will be dealt with under the old rules.

Reasoning behind the changes

The primary reason behind the changes was said to be the increasing workload on the Court of Appeal. However, the Civil Justice Statistics Quarterly for January to March 2015 (“Civil Justice Statistics Quarterly, England and Wales and Appellate Court Statistics 2014, January to March 2015”, 4th June 2015) includes statistics for all appellate courts between 2003 and 2014 which shows that the load on the Court of Appeal has been largely flat whereas the load on the High Court had been increasing rapidly prior to 2014. The figure is reproduced below. The sharp reduction in High Court appellate matters recorded in 2014 is put down by the report authors to the transfer of Judicial Review cases from the Civil Immigration and Asylum Tribunal from the Administrative Court to the Upper Tribunal for Immigration and Asylum Chamber with effect from November 2013.

A further reason given for the change is the reduction in the delay between appeal notices being lodged and the hearing of the appeal. This was largely supported by the Bar Council of England and Wales in its response to the MoJ consultation on the proposed measures. That said, the Bar Council was concerned about the reduction in delays which have been widely reported (although statistics are likely to be less revealing as not all matters are equally complex). The former Justice Secretary, Michael Gove, was reported to have been critical of these delays (“Court of Appeal comes under fire for year-long delays on hearings”, Tabby Kinder, The Lawyer, 25th June 2015).

One way of analysing the statistics is to consider that the relatively stable caseload of the Court of Appeal indicates that it is operating very close to capacity. Given the changes to the Judicial Review process it may be that significant High Court judicial capacity has been freed up by the 2013 changes which can now be deployed to ease the burden on the Court of Appeal.

Practice Matters

For practitioners the new rules are likely to result in two considerations: a) the grounds of appeal will need to be more carefully crafted in order to ensure the greatest likelihood of a permission application being successful on the papers; and b) the new test for permission will need to be considered carefully when dealing with second appeals.

A helpful table to allow the practitioner to quickly determine the destination of any appeal under the new rules is incorporated into Practice Direction 52A. Practice Direction PD52B covers appeals to the High Court and PD52C covers appeals to the Court of Appeal.

Another area that needs to be looked at carefully as the new rules bed in is how Respondents deal with matters where an application for permission to appeal has been lodged.

For example, applications for a stay are dealt with in applications to the Court of Appeal by a Court Officer but how they are dealt with in applications for permission to appeal to the High Court is not expressly set out in the new rules. It may be that the Civil Appeals Office will deal with all applications but it appears from the rules that the powers of the Court Officer to deal with certain incidental matters differ depending upon the destination of the application. There is no express rule giving a Court Officer the power to review of consider an application to stay prior to an application for permission being considered in an application for permission to appeal to the High Court.

PD52C para. 11 deals expressly with “Applications within respondent's notice” such as an application to stay enforcement pending the outcome of the appeal or application for permission. There is no equivalent rule in PD52B.

The lacuna on Respondents' submissions has also not been cleared up by the new rules. PD52B para. 8.1 expressly sets out that a Respondent who attends a permission hearing will not be awarded costs unless the court has ordered or requested attendance; the permission application is to be dealt with on the same occasion as the determination of other applications or the appeal if permission is granted; or that the Court considers it just in all the circumstances to award costs to the Respondent. PD52C para. 19 provides that a respondent is “permitted and encouraged” to file and serve a brief statement of reasons why permission should not be granted. No such statement appears in PD52B regarding appeals to the High Court. It should also be noted, however, that PD52C para. 20(1) indicates that the costs of the Respondent's statement will not normally be ordered unless the Respondent has been directed to file such a statement.

It cannot be said that a Respondent is being encouraged to contribute to the process when the costs are likely not to be recoverable.

According to the White Book, the guidance in Jolly v Jay [2002] EWCA Civ 277 remains useful in terms of submissions that should be made if so advised.

Conclusion

The new rules should, it is hoped, reduce delays for appeals and allow the Court of Appeal to deal with the more important matters more speedily. Some changes in how applications for permission are dealt with may require some refinement as, in particular, a Respondent facing prejudice from an application for a stay has no clear route to resolution prior to the permission application itself where the appeal lies to the High Court, and does not automatically stand to recover costs at that stage. The so-called encouragement for Respondents to get involved at the permission stage appears to have been reduced for appeals to the High Court by omission.

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