The recent 86th Update to the Civil Procedure Rules brought some noteworthy changes to the process of bringing appeals to the Court of Appeal. It is hoped that the new system will reduce (a) the backlog of cases waiting to be heard in the Court of Appeal and (b) the delay both at the permission stage and on substantive appeal. One of the driving forces behind the changes is the increasing number of litigants in person seeking to appeal decisions.

The changes

1. CPR 52.5: Removing the automatic right to an oral hearing when applying to the Court of Appeal for permission to appeal (either renewing an unsuccessful permission to appeal application from a lower court or directly).

The default position is now that permission applications to the Court of Appeal will be determined on paper. This change has been tempered by imposing on judges a duty to exercise their discretion to “call in” the application for an oral hearing if they believe they cannot fairly determine the application on paper. Once “called in”, an oral hearing will be listed within 14 days but the court has the discretion to give directions to limit the appellant’s oral submissions to specific points. This provides a balance between the benefit of an appellant to be heard swiftly in person and the length of time the Court will have to devote to dealing with the matter, especially if parts of the decision can be made on paper only.

2. CPR 52.7: Rewording and adding to the test for permission on second appeal to require “a real prospect of success”.

It is well established that an appeal must involve an important point of legal principle or practice. Additionally, the first appeal to the Court that made the underlying decision must have a real prospect of success. If that first appeal is refused, it was assumed that for any subsequent appeal to the Court of Appeal there must also be a real prospect of success. The 86th update now explicitly confirms this.

Future proposed changes and challenges

One proposed change escaped the 86th Update: the threshold for all permission to appeal applications to the Court of Appeal being increased from a “real” to a “substantial” prospect of success. If this had been approved then there would have been a higher threshold for appeals to the Court of Appeal than for appeals in lower courts but it must be doubtful whether this would really have helped reduce the Court of Appeal’s backlog.