Permission to Appeal

There is a general requirement in CPR 52.3 for permission to appeal from any decision of a judge in a County court, or the High Court. Generally, permission to appeal may be sought either from the lower court at the hearing at which the decision to be appealed was made, or from the appeal court. It is usual, in the first instance, to ask for permission to appeal from the judge against whom the appeal is being made (though the occasions upon which permission is given is limited for the obvious reason that the court has just decided the case the other way).

CPR 52.3(6) provides that permission to appeal may be given only where either:

  • the court considers the appeal would have a real prospect of success; or
  • there is some other compelling reason why the appeal should be heard.

An appellant must normally initiate an appeal (by filing an appellant’s notice in the form N161) no later than 21 days from the date of the decision of the lower court. Judgements and orders taken effect from the date they are given or made, or such other date as the court may specify. Delays informally drawing up the order do not, therefore, delay time running for the purposes of appeals. The form N161 (Appellant’s Notice) should be accompanied by “grounds of appeal” and, if possible, a skeleton argument expanding upon those grounds, and referring to any relevant case, and providing a chronology.

Often, permission to appeal will be considered by the Court of Appeal on paper in the first instance. If permission is refused, the appellant has the right to apply for an oral hearing (which will usually be limited to 20-30 minutes). If permission is granted, the case will then proceed to a full hearing. If permission is granted, it is usual to seek a stay of execution pending the appeal. It should be noted that the making of an appeal itself does not operate as a stay of execution on the judgement below.

Record of the judgment of the lower court

if the judgement of the lower court was recorded, and approve transcript should accompany the appellant’s notice. If there is no official transcript, the next best is the lower court judge’s written judgement signed by the judge. If the lower court’s judgement was oral (extempore) and not recorded, the advocates should confer and submit, if possible, an agreed note of the judgement to the judge for signature. If the notice cannot be agreed, both versions should be submitted with a covering letter explaining the situation.

Grounds for allowing successful appeals

The appeal court will allow an appeal where the decision of the lower court was:

  • wrong; or
  • and just because they are serious procedural or other irregularity in the proceedings in the lower court.

The Appellant will usually seek to establish that the judge below:

  • “misdirected himself/herself etc…(as to the law);
  • “the learned judge failed to take into account material circumstances”;
  • “exercised his/her discretion in a way that no reasonable judge could have done”;
  • wrongly drew inferences from [given witnesses]….”