New rules for appeals to the Court of Appeal to apply from 3 October

The procedural rules governing appeals to the Court of Appeal are to be amended and restructured with effect from 3 October 2016.  Key changes include:

• Removing the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the documents unless the judge exceptionally directs an oral hearing.
• Re-wording the test for permission on second appeals, to require "a real prospect of success" (in addition to an important point of principle or practice).
• An overall restructuring of Part 52 of the Civil Procedure Rules, including re-ordering of existing provisions.

The amendments do not include raising the general threshold test for appeals from a "real" to a "substantial" prospect of success, as had recently been proposed, although it appears this change is still being considered.

Background

The changes come against the backdrop of a substantial increased workload and backlog of cases in the Court of Appeal, with reported ongoing delays in the determination of both applications for permission to appeal and substantive appeals.

A package of proposed reforms to address the situation was considered and endorsed by the Court of Appeal judges earlier this year, which included what the Master of the Rolls described as a number of "limited but significant" changes to the Civil Procedure Rules governing appeals. Those changes were subsequently consulted on by the Civil Procedure Rules Committee in May 2016. 

The amendments now introduced implement some of the changes proposed in the consultation document. 

Key changes

In making the changes, the opportunity has been taken to consolidate and re-order the relevant section of the CPR, Part 52. The existing Part 52 will be replaced by a revised and consolidated new Part 52, with consequential changes elsewhere in the CPR to update the references to Part 52 provisions. The new Part 52 will operate from 3 October 2016, with transitional provisions as noted below.

Removal of right to oral renewal on permission applications

Under the existing rules, where a permission application is made to the Court of Appeal (either directly or after refusal of permission by the relevant lower court), the court may determine the application on the papers without an oral hearing. If it is refused, the applicant has the right to renew the application at an oral hearing (unless it has been determined as "totally without merit").

Under the new rules (in new CPR 52.5), the default position will be that permission applications will be determined on the papers unless the judge exercises a discretion to “call in” the application for an oral hearing. Judges will have a duty to do so if they are of the opinion that they cannot fairly determine the application on the papers.   

In line with the aim of permission applications being dealt with more promptly, the new rules provide that, unless the court directs otherwise in an exceptional case, any oral hearing will be listed within 14 days of the direction for a hearing and will be before the same judge who called in the application. The court may give directions as to the focus of the applicant's submissions at the oral hearing and may require the respondent to file written submissions and attend the hearing.

Under the transitional provisions, where an appellant's notice seeking permission is issued before 3 October 2016, Part 52 as in force immediately before that date will continue to apply.

Removal of right to oral renewal on other applications

The approach described above in respect of permission applications is also extended to the procedure for reviewing decisions on other applications made in the course of Court of Appeal proceedings. Thus, the following reviews (available under existing Part 52.16 / new Part 52.24) will similarly be determined on the documents unless the judge calls in an oral hearing (which they must do if they consider that the matter cannot be fairly determined otherwise):

(i)   a review by a judge of a decision made by a court officer (a solicitor or barrister within the Civil Appeals Office authorised to exercise the Court of Appeal's jurisdiction on certain ancillary matters); and

(ii)  a reconsideration by a judge of an on-paper decision made by another single judge.

The transitional provisions provide that the existing rules in Part 52.16 (including the right to an oral hearing) will apply to requests for reviews/reconsiderations made before 3 October 2016.

There is also a minor amendment regarding the powers of court officers. New CPR 52.24(3) confirms that the matters expressly excluded from a court officer's powers include applications for a stay of proceedings in a lower court.

Threshold test for appeals

Where an appeal to the Court of Appeal is a second appeal (ie from a decision that was itself an appeal), the threshold test for permission to appeal (in new CPR 52.7) has been re-worded to specify that, in addition to the existing requirement that the appeal involve an important point of principle of practice, there must also be "a real prospect of success" (unless there is some other compelling reason). The "real prospect" requirement is the test for first appeals and the amendment to include it expressly in the second appeals test probably simply confirms what has been generally assumed to be the case.

More interesting in this regard is what the changes do not include. The proposals endorsed by the Court of Appeal judges and consulted on earlier this year included the more controversial proposal to  increase the threshold test for permission to appeal to the Court of Appeal (on both first and second appeals) from a "real" to a "substantial" prospect of success. The Explanatory Memorandum accompanying the amending instrument discusses the consultation responses received in respect of the changes now being implemented but does not touch upon this further proposal.

However, in his recently published final report in the Civil Courts Structure Review, Briggs LJ notes (at paragraph 9.10) that this proposal to increase the merits threshold was adjourned for further review by the Civil Procedure Rules Committee. He suggests this was due to a concern not at the raising of the threshold per se but at having two different tests for appeals to different courts. The report suggests that there will "probably" be further consultation as to whether the increase in the threshold from a “real" to a "substantial" prospect of success should be applied to all appeals, rather than only to appeals to the Court of Appeal.