Under CPR changes effected by the Civil Procedure (Amendment No 3) Rules 2016, the existing appeal rules to the Court of Appeal are being replaced with a revised, re-ordered and consolidated Part 52 which comes into force on 3 October 2016.

These limited but important changes to the appeals process are aimed at addressing the growing delays in determining permission applications and substantive appeals in the Court of Appeal which is currently experiencing a substantial backlog of cases to be heard.

Notably, however, the Civil Procedure Rules Committee’s proposal to raise the threshold test for permission to appeal to the Court of Appeal from a “real” to a “substantial” prospect of success has not been implemented. This could indicate that the proposal has been abandoned but Briggs LJ’s final report in the Civil Courts Structure Review suggests otherwise noting that it has been “adjourned for further review”. There is likely to be further consultation on this proposal focussing on whether an increased threshold from a “real” to a “substantial” prospect of success should apply to all appeals and not only those appeals to the Court of Appeal.

Care should be taken when reviewing the new Part 52 noting the overall restructuring which includes a re-ordering of existing provisions, consequential amendments and cross-referencing updates.

Two key procedural rule changes are as follows:

1. New CPR 52.5:

  • The existing automatic right to an oral hearing, where an application to the Court of Appeal for permission to appeal (either directly or following refusal of permission by the lower court) is refused on paper, has been removed. There is no longer a right to renew the application at an oral hearing and instead the Court of Appeal will determine permission applications on paper except where the Judge, in exercising discretion, decides to “call in” the application for an oral hearing.
  • The Judge must direct an oral hearing if they are of the view that the permission application cannot be determined fairly without one and that hearing must be listed no later than 14 days from the date it was directed in order to speed up the process. The Judge may also give directions on issues which the applicant’s submissions should cover and for the respondent to file written submissions and attend.

2. New CPR 52.7

  • Currently, the only specified requirement for permission to appeal an appeal (a second appeal to the Court of Appeal’s first appeal decision) is that the second appeal raises an important point of principle or practice. The threshold test now refers expressly to an additional requirement that the appeal would have “a real prospect of success”. This mirrors the threshold test for first appeals and was generally assumed to already apply in practice.
  • Interestingly, as mentioned above, the proposal to raise the threshold test (on first and second appeals) from a “real” to a “substantial” prospect of success has not yet been implemented and we will continue to monitor the status of that proposal with interest.