Recently, I spoke to a room full of civil litigators on the topic of ‘Appeals: a practical guide to the new(ish) CPR Part 52‘.
‘New(ish)’, because although it has been around since 1 October 2016, my hunch was that a good number of practitioners would not have used CPR Part 52 in its current form yet.
I took some straw polls to substantiate my hunch. A small minority (3 out of 35) had been involved in a civil appeal (by which I mean an appeal to the County Court, High Court or Court of Appeal), in the last 6 months. Slightly more in the last 12 months. A significant number had never dealt with a civil appeal before.
Those of us who practice in public law tribunals are used to keeping one eye on how the case might play out on an onward appeal. (Indeed, the Administrative Court Guide 2017 requires advocates to spell out in their Skeleton Arguments the ‘legal points to be taken’, presumably, in part, to identify potential appeal points).
However, many civil litigators are not always used to doing that same mental exercise on such a regular basis.
I asked those in the audience who had dealt with civil appeals whether, if they had lost at trial, they had been asking for permission to appeal from a lower court orally, at the end of their hearing.
No-one was doing this on a regular basis. That’s despite the cost savings that can be achieved by asking for permission to appeal when everyone is familiar with the facts, the law and the issues (or hopefully should be, by then). The worst thing that can happen is that the judge will say ‘no‘, and a further application may be made to the appeal court on paper.
Now, the Court of Appeal has highlighted the importance of either asking a lower court for permission to appeal at the end of a hearing or asking lower courts to hear such applications a short time later.
Zipporah
Zipporah Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470, was an individual’s claim for harassment against the Daily Mail following reports about the Claimant painting red and white stripes on her Kensington home.
The Claimant made an application for specific disclosure which was dismissed by a Judge, Sir David Eady. No oral application was made for permission to appeal (despite the Claimant’s solicitor attending), but after the end of the hearing the Claimant’s representatives sent a letter to the Judge (not copied to the other side) requesting permission. Sir David, who was retiring from the bench that evening, granted permission in some haste. The other side argued that the grant of permission was invalid and the Court of Appeal agreed.
The law
First, a quick recap on the law. Where permission to appeal is required in a civil case [1], CPR Part 52 provides for 2 routes to obtaining it:
- Applying to the lower court at the hearing that the decision appealed against is made (note that the lower court may adjourn the hearing to provide the applicant with more time in which to consider making the application); or
- Applying to the appeal court if the lower court refuses permission or if no application is made to the lower court. [2]
The Court of Appeal’s judgment
The Court considered the process in CPR Part 52 important for 3 reasons:
- Where no application for permission (or for an adjournment of the application) is made when judgment is handed down, the Judge can be sure that their involvement in the case has come to an end and they can return the files for disposal;
- Where an application for permission is made at the end of a substantive hearing, the matter is fresh in everyone’s minds and can be dealt with efficiently; and
- It gives the successful party the opportunity to respond to the application.
In Zipporah, the correct procedure had not been followed. The Claimant did not ask for permission to appeal at the end of the hearing, nor did she ask the lower court to adjourn the hearing of an application for permission. It followed that her only way of obtaining permission to appeal was by making an application to the appeal court directly. Sir David’s grant of permission was therefore invalid. The Court considered afresh whether to grant permission but refused to do so on the merits.
Conclusion
This decision clarifies that there is no third-way of obtaining permission to appeal – the routes in CPR r.52.3 are ordinarily the only ways available.
In practice, this highlights the importance of going into civil hearings ready not only to deal with the substantive and procedural issues, costs and ancillary orders but also ready to make or to resist an application for permission to appeal (or at the very least have a strategy on it if you are going to ask for a permission hearing to be adjourned). Failure to do this simply costs your client more. If possible, obtain some instructions from your client in advance as to whether they would want to appeal if the decision is not in their favour and whether they would prefer the application to be dealt with at the hearing or at a later date.
The reality of over-listed and under-resourced civil courts will often limit the extent to which parties can sensibly argue over appeal points at the conclusion of a hearing. If so, seek an adjournment so that any application for permission to appeal can be heard with sufficient time on another occasion.
[1] Appellants or Respondents to appeals require permission except where the appeal is against an outright committal order, refusal to grant habeas corpus or a secure accommodation order under section 25 of the Children Act 1989 (r. 52.3(1)).
[2] See CPR r.52.3(2) and Practice Direction 52A, § 4.1.
