In this blog, I look at the situation where permission to appeal to the Court of Appeal has been refused by a single judge on the papers, and the possibilities of having that decision re-opened.
An appeal from the Upper Tribunal lies to the Court of Appeal, and the issue of permission is governed by Article 2 of The Appeals from The Upper Tribunal to The Court of Appeal Order 2008 (SI 2008/2834), which reads:
“2. Permission to appeal to the Court of Appeal in England and Wales or leave to appeal to the Court of Appeal in Northern Ireland shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that—
(a) the proposed appeal would raise some important point of principle or practice; or
(b) there is some other compelling reason for the relevant appellate court to hear the appeal.”
If the Upper Tribunal refuses permission, an application to appeal has to be made to the relevant appellate court, that is the Court of Appeal itself, and the Court of Appeal must decide whether or not to grant permission to appeal on the basis of the two grounds set out at (a) and (b) above.
Until 3 October 2016, a party who was refused permission to appeal to the Court of Appeal on the papers was entitled to renew the application at an oral hearing before the full Court of Appeal. That right was contained in Rule 52.5 of the Civil Procedure Rules (CPR), but was abolished with effect from 3 October 2016.
Once leave to appeal has been refused on the papers, then it is very difficult, but not impossible, to take the matter any further.
The decision by the Court of Appeal to refuse permission to appeal, by consideration of the papers and without an oral hearing, is regarded as a final appeal.
CPR 52.30 deals with the re-opening of final appeals and for the sake of completeness I set out that rule here:
“(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.
(3) This rule does not apply to appeals to the County Court.
(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in Practice Direction 52A.”
CPR 52.30(2) provides that “appeal” includes an application for permission to appeal, and, therefore, this case is covered by this provision.
For an application under CPR 52.30 to be heard, let alone to succeed, it must be necessary to do so in order to avoid real injustice and make it appropriate to re-open the appeal, and there must be no alternative effective remedy.
These are fairly vague terms.
In 2018, the Court of Appeal itself considered the circumstances in which this power should be exercised, and that case was R (Goring-on-Thames Parish Council) v South Oxfordshire District Council.
The Court of Appeal stated (at paragraph 30) that the approach was not “in any way relaxed where the decision under consideration is a decision, on the papers, to refuse permission to appeal”.
The Court of Appeal also said that the principles had not been modified or relaxed following the removal of the right to an oral renewal of a decision on the papers to refuse permission to appeal.
In other words, the requirements under CPR 52.30 had not changed simply because there was now no right to have an oral hearing of the application for permission to appeal.
Part of the Court of Appeal’s justification for its decision in Goring was that the paper only procedure had considerable advantages in terms of saving time, costs and uncertainty and also that it relieved pressure on the court’s resources (paragraph 34, judgment).
Before the Court of Appeal will re-open a permission decision, it needs to be satisfied both that:
- The grounds of appeal had not been sufficiently confronted and dealt with, to the extent that the process had been critically undermined.
- There is a powerful probability that permission to appeal would have been granted if the judge had dealt adequately with the grounds.
The Court of Appeal also stated that whilst the reasons for refusing permission on the papers needed to address the essential issues raised by the appellant, they “will seldom need to be lengthy”.
CPR 52.30 existed before the right to have an oral hearing of the appeal was scrapped, and really the Goring case was about whether the Court of Appeal should adopt a softer approach to applications under CPR 52.30 following the abolition of the right to have an oral hearing. It firmly held that the test had not changed and that the removal of the right to an oral hearing made no difference to the test under CPR 52.30:
“Legal representatives advising applicants for permission to appeal should not think, and should not encourage applicants to think, that CPR 52.30 provides a default procedure for challenging the court’s decision to refuse the application for permission to appeal, whether on paper or at an oral hearing, if one is held.”
Thus, if, the Court of Appeal has, on the papers, refused permission to appeal, then it will indeed be very difficult to take the matter further, and the only possible route is an application under CPR 52.30.
The fact that the Upper Tribunal overturned the decision of the First-Tier Tribunal does not of itself affect the issue of whether permission to appeal should be given. Realistically, it can influence the Court of Appeal judge considering the matter on the papers, but where the Court of Appeal has refused permission to appeal, then the fact that there are conflicting decisions of the First-Tier Tribunal and the Upper Tribunal does not affect the chance of an application under CPR 52.30 succeeding. Otherwise, it would render appeal decisions of the Upper Tribunal almost pointless, in the sense that the party who had won at the first hearing could always rely on that first win as a ground for appeal.
The decision to scrap the right to have a full oral hearing of any application to appeal to the Court of Appeal was a highly controversial one, as was the decision in the Goring case, and it will be apparent from the judgment and my comments above that the decision to scrap the right to an oral hearing, and the position of the Court of Appeal in the Goring case, were both made on the ground of saving money and resources, and very clearly have had an adverse effect on access to justice.
However, in the 2019 case of R (Siddiqui) v Lord Chancellor and others, the Court of Appeal itself considered the lawfulness of the changes, as against the right to a fair hearing contained in Article 6 of the European Convention on Human Rights (ECHR), in the context of an application for judicial review.
The changes were introduced, not because anyone thought there was any merit in them, but rather to reduce the increasing workload of the Court of Appeal which was leading to significant delays in that court. Here, the Court of Appeal judge held that those delays caused injustice, and therefore a balance had to be struck between the rule change and the need to reduce delays.
The court held that whilst everyone was entitled to a fair trial, including a fair hearing of an appeal, the case law of the European Court of Human Rights showed that this did not mean that an oral hearing was required at every contested stage of civil proceedings.
The court therefore considered that it was a legitimate and proportionate rule change and therefore was not incompatible with Article 6 ECHR, nor with the common law right of access to justice. Consequently, the judge dismissed the application for leave to appeal to the full Court of Appeal.
Even before 2016 there was not an absolute right to an oral hearing; if, on the papers, the judge had stated the application to be “totally without merit” there was no right to have that refusal reconsidered at an oral hearing.
In LM Associates Ltd v William Gibbeson, the Court of Appeal held that it did not have jurisdiction to entertain an appeal against an order made under this provision, that is now CPR 52.4(3), that is a decision on the papers refusing a permission application as being totally without merit.
