The new CPR Part 52 applies to appeals in which the appellant’s notice was issued on or after 3 October 2016. Where an appellant’s notice was issued before that date, the appeal will be subject to the rules set out in the provisions of Part 52 in force immediately before that date (rule 16(1)).
The majority of the rules contained within the old Part 52 have been retained in substantially the same terms, although their order has been rearranged. However, some key changes have been made. The most important are as follows.
Permission to appeal
If an application for permission to appeal is made to an appeal court other than the Court of Appeal (i.e. to the County Court or the High Court), the appeal court will now in all cases decide the application without a hearing. The new rules do, however, preserve the qualified right of a party refused permission to appeal on paper to request an oral rehearing (rule 52.4(2)). As before, a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge may order that the party cannot request an oral rehearing if he/she refuses permission on paper and considers that the application is totally without merit (rule 52.4(3)).
If an application for permission to appeal is made to the Court of Appeal, the general rule is that the Court of Appeal will determine the application on paper (rule 52.5(1)). However, the judge considering the application on paper may direct that it be determined at an oral hearing and must so direct if of the opinion that the application cannot fairly be determined on paper without an oral hearing (rule 52.5(2)). Any such hearing must be listed no later than 14 days from the judge’s direction and before the same judge (rule 52(3)).
The test for permission to appeal on a first appeal remains the same. The appeal court must consider that either (a) the appeal would have a real prospect of success or (b) there is some other compelling reason for the appeal to be heard (rule 52.6(1)). The test for permission to appeal on a second appeal to the Court of Appeal has changed. Under the old rules, the Court of Appeal would not give permission unless (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the court to hear it. The first limb of this test has now changed. In order to pass this hurdle an appellant must demonstrate not only that the appeal would raise an important point of principle or practice but also that it would have a real prospect of success (rule 52.7(2)(a)).
Special provision for permission to appeal is made in relation to judicial review appeals from the High Court (rule 52.8), judicial review appeals from the Upper Tribunal (rule 52.9), planning statutory review appeals (rule 52.10) and appeals from the Employment Appeal Tribunal (rule 52.11).
Who may exercise the powers of the Court of Appeal
Rule 52.24 replaces the old rule 52.16. It represents a change of emphasis away from oral hearings and towards paper consideration. Decisions of court officers will now be made without an oral hearing unless the court officer otherwise directs (rule 52.24(4)). If a party requests a review of the decision of a court officer, the review will now be conducted by a single judge and will be determined on paper unless the single judge directs that it be determined at an oral hearing (rule 52.24(5)). A single judge must so direct if of the opinion that the review cannot fairly be determined on paper without an oral hearing (rule 52.24(5)(b)). A party may request a decision of a single judge made without a hearing (other than a decision made on a review of a court officer or a decision made on permission to appeal) to be reconsidered. However, the reconsideration will now be determined by the same or another judge on paper without a hearing unless the judge directs a hearing (rule 52.24(6)). The judge must direct an oral hearing if of the opinion that the reconsideration cannot fairly be determined on paper without an oral hearing (rule 52.24(6)(b)).
Note that transitional provisions apply. Where a request was made under rule 52.16 before 3rd October 2016 for either (a) a review of a decision of a court officer, or (b) reconsideration of a decision of a single judge or a court officer made without a hearing, the provisions of rule 52.16 in force immediately before that date continue to apply for the purposes of that review or reconsideration (Civil Procedure (Amendment No. 3) Rules 2016, rule 16(2)).
Destination of appeal
The destination of appeals under CPR Part 52 has also changed in some cases due to the revocation of The Access to Justice Act 1999 (Destination of Appeals) Order 2000 and its replacement by The Access to Justice Act 1999 (Destination of Appeals) Order 2016. The changes take effect on 3 October 2016, subject to transitional provisions.
The effect of the changes is summarised in the updated tables in Section III of Practice Direction 52A. The key change relates to first appeals in proceedings other than family or insolvency. The distinctions made between appeals in Part 7 and Part 8 claims and between appeals of interim and final decisions have gone. Now appeals of decisions of District Judges can only go to Circuit Judges or High Court Judges and appeals of decisions of Circuit Judges can only go to High Court Judges. A first appeal to the Court of Appeal is now only possible on appeal from a decision of a High Court Judge.
The new destination of appeal provisions set out in the 2016 Order do not apply where an appellant has filed a notice of appeal or applied for permission to appeal before 3 October 2016 (article 8(a)).
The general impact of the new CPR Part 52 will be a reduction in the workload of the Court of Appeal. It appears that there will also be a greater emphasis on paper determination of applications in appeal proceedings. Of particular note is that there is no longer an entitlement to have an oral renewal of an unsuccessful application for permission to appeal to the Court of Appeal. Would-be appellants must therefore be more careful than ever to ensure that their grounds of appeal and skeleton argument in support are as clear and convincing as possible.