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APPEALS, CPR 52 52.1, Scope and interpretation  (1) The rules in this Part apply to appeals to: o (a) the civil division of the CA; o (b) the High Court; and o (c) the County Court.  (2) This party does not apply to an appeal in detailed assessment proceedings against a decision of an authorised court officer.  (3) In this part: o “Appeal” includes an appeal by way of case stated; o “Appeal court” = the court to which an appeal is made; o “Lower Court” = the court, tribunal or other person or body from whose decision an appeal is brought; o “appellant” = a person who brings or seeks to bring an appeal o “respondent” =  (i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and  (ii) a person who is permitted by the appeal court to be a party to the appeal; o “appeal notice” = an appellant’s or respondent’s notice.  (4) This part is subject to any rule/enactment/PD which sets out special provisions re any particular category of appeal. 52.3, Permission to appeal  (1) an appellant or respondent requires permission to appeal: o (a) where the appeal is made from a decision of a judge in the County Court or the High Court; or to the CA from a decision of a judge in the family court; except where the appeal is against [[no permission needed where]]:  (i) a committal order;  (ii) a refusal to grant habeas corpus; or  (iii) a secure accommodation order under s25 Children Act 1989 or s119 Social Services & Well-Being (Wales) Act 2014; or o (b) as provided by PD 52A to 52E. o [[so basically you always require permission to appeal except in above 3 situations]]  (2) An application for permission to appeal may be made: o (a) to the lower court, at the hearing at which the decision to be appealed was made; OR o (b) to the appeal court, in an appeal notice.  (r52.12 re time limits for filing an appellant’s notice at the appeal court; r52.13 time limits for filing a respondent’s notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice).  Application to lower court normally made orally, at the end of the hearing.  (3) Where the lower court refuses an application for permission to appeal:

o (a) a further application for permission made be made to the appeal court; and o (b) the order refusing permission must specify:  (i) the court to which any further application for permission should be made; and  (ii) the level of judge who should hear the application. 52.4, Determination of applications for permission to appeal to the County Court and High Court  (1) Where an application for permission to appeal is made to an appeal court other than the Court of Appeal  the appeal court will determine the application on paper, without an oral hearing, unless court orders otherwise; OR as provided for under para (2).  (2) Subject to para (3), and except where a rule/PD provides otherwise, where the appeal court, without a hearing, refuses permission to appeal  the person seeking permission may request the decision to be considered at an oral hearing. o (6) a request under (2) , must be filed within 7 DAYS after service of the notice that permission is refused.  SO 3 OPPORTUNITIES TO OBTAIN PERMISSION to appeal (where appeal is not to CA): o (1) in lower court, made orally o (2) seek permission (in appeal notice) from appeal court on the papers without a hearing o (3) within 7 days of notice of refusal, request reconsideration at an oral hearing.  (3) where in the appeal court a judge of the High Court/Designated Civil Judge/or Specialist Circuit Judge, refuses permission to appeal without an oral hearing; and considers that the application is totally without merit  the judge may make an order that the person seeking permission may NOT request decision to be reconsidered at an oral hearing. o (4) For the purposes of (3), “Specialist Circuit Judge = any Circuit Judge in the County Court nominated to hear cases in the Circuit Commercial, Chancery or Technology and Construction Court lists.  (5) r3.3(5) [party able to apply to set aside a decision made of court’s own initiative]  does NOT apply to an order made under (3) (an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing) 52.5, Determination of applications for permission to appeal (first appeals) to the Court of Appeal  (1) where an application for permission to appeal is made to the CA  the CA will determine the application on paper without an oral hearing; EXCEPT as provided for in (2).  (2) the judge considering the application on paper may direct that the application be determined at an oral hearing; o and MUST so direct IF judge is of opinion that the application cannot be fairly determined without an oral hearing.

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[[whichever method CA choose, paper or oral, there’s no right to request reconsideration if refused. CF above for County/High Court, if refused on paper, can apply for oral hearing]] (3) An oral hearing directed under (2) must be listed: o (a) no later than 14 days from date of the direction under that para; and o (b) before the judge who made that direction o  unless court directs otherwise (4) The CA may, in any direction under (2): o (a) identify any issue(s) on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and o (b) direct the respondent to serve & file written submissions and to attend the oral hearing. So 2 OPPORTUNITIES for permission to appeal if appeal is to CA: o (1) at lower court, mode orally o (2) permission through appeal notice to CA. Determined on papers (unless judge decides can only be fairly determined with an oral hearing, will be within 14 days after the direction).

52.6, Permission to appeal test – first appeals  (1) except where r52.7 applies [second appeals], permission to appeal may be given ONLY where: o (a) the court considers that the appeal would have a ‘real prospect of success’; OR o (b) there is some other compelling reason for the appeal to be heard.  (2) an order giving permission under this rule or under r52.7, may: o (a) limit the issues to be heard; and o (b) be made subject to conditions (eg paying security for costs of appeal) .  (r3.1(3): the court may make an order subject to conditions)  (r25.15: court can order security for costs of an appeal). 52.7, Permission to appeal test – second appeals  (1) Permission is required from the CA for: o any appeal to the CA from a decision of the County Court/family court/High Court which was itself made on appeal; o or a decision of the Upper Tribunal which was made on appeal from decision of First-Tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the CA.  (2) the CA will not give permission unless it considers that: o (a) the appeal would:  (i) have a real prospect of success; AND  (ii) raise an important point of principle or practice; OR o (b) there is some other compelling reason for the CA to hear it. [[NB: the above are the tests for whether to grant permission to appeal; CF, if permission for granted, the test for whether an appeal will be successful is in 52.21(3): where decision

of lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity.]] 52.12, Appellant’s Notice (where appellant seeks permission from the appeal court)  (1) Where the appellant seeks permission from the appeal court , it must be requested in the appellant’s notice.  (2) the appellant must FILE the appellants notice at the appeal court within: o (a) such period as may be directed by the lower court (which may be longer or shorter than the period in (b)); OR o (b) where the court makes no such direction; and subject to specific provision in r52.8-122 and PD 52D; 21 DAYS after the date of decision of the lower court which the appellant wishes to appeal.  (3) Subject to para (4); and unless the appeal court orders otherwise, an appellant’s notice must be SERVED on each respondent: o (a) as soon as practicable; and o (b) in any event not later than 7 days o After it is filed.  (4) Where an appellant seeks permission to appeal against a decision to refuse to grant an interim injunction under s41 Policing & Crime Act 2009: the appellant is not required to serve the appellant’s notice on the respondent. 52.13, Respondent’s Notice  (1) a Respondent may file & serve a respondent’s notice  (2) a respondent MUST file a respondent’s notice when: o (a) is seeking permission to appeal from the appeal court [i.e. wants to cross-appeal]; or o (b) wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court o  MUST file a respondent’s notice  [[i.e. no RN required if the R simply wishes to uphold the decision of the lower court for the same reasons as given]]  (3) Where the respondent’s seeks permission from the appeal court, it must be requested in the respondent’s notice.  (4) A respondent’s notice must be FILED within: o (a) such period as may be directed by the lower court; or o (b) where the court makes no such direction, 14 days after the date in para (5), i.e 14 days after: (basically 14 days after it is served with notice that appeal will be happening):  (a) the date the respondent is served with the appellant’s notice, where (i) permission to appeal was given by the lower court; or (ii) permission to appeal is not required.  (b) (where permission has been applied for from the appeal court)  the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or  (c) the date the respondent is served with notification that the application for permission to appeal and the appeal itself, are to be heard together.

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(6) unless the appeal court orders otherwise, a respondent’s notice must be SERVED on the appellant and any other respondent: o (a) as soon as practicable; and o (b) in any event not later than 7 days o After it is filed. (7): this rule does not apply where r52.12(4) applies [re appeal against decision to refuse to grant an interim junction under s41 Policing & Crime Act 2009, where appellant not required to serve appellant’s notice on the respondent.

52.14, Transcripts at public expense  (1): subject to para (2), the lower court or the appeal court may direct, on the application of a party to the proceedings, that an official transcript of the judgment of the lower court, or of any part of the evidence or the proceedings in the lower court, or of any part of the evidence or the proceedings in the lower court, be obtained at public expense for the purposes of an appeal.  (2) Before making a direction under (1), the court must be satisfied that: o (a) the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining a transcript would be an excessive burden; and o (b) it is necessary in the interests of justice for such a transcript to be obtained. 52.15, Variation of Time  (1) an application to vary the time limit for filing an appeal notice must be made to the appeal court.  (2) The parties may NOT agree to extend any date or time set by: o (a) these rules; o (b) PD52A to 52E; or o (c) an order of the appeal court or the lower court.  (r3.2(1)(a): court may extend or shorten the time for compliance with any rule/PD/court order (even if the application for extension is made after the time for compliance has expired)).  (r3.1(2)(b): court may adjourn or bring forward a hearing). 52.16, Stay  An appeal shall NOT operate as a stay of any order or decision of the lower court, UNLESS: o (a) the appeal court or lower court orders otherwise; or o (b) the appeal is from the Immigration & Asylum Chamber of the Upper Tribunal. 52.20, Appeal Court’s Powers  (1) in relation to an appeal, the appeal court has all the powers of the lower court.  (r52.1(4): this part is subject to any enactment that sets out special provisions re a particular category of appeal; where such enactment gives a statutory power to a tribunal/person/body, it may be that the appeal court may not exercise that power on appeal).

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(2) The appeal court has the power to: o (a) affirm, set aside or vary any order or judgment made/given by the lower court; o (b) refer any claim or issue for determination by the lower court; o (c) order a new trial/hearing; o (d) make orders for the payment of interest; o (e) make a costs order. (3) In an appeal from a claim tried with a jury, the CA may, instead of ordering a new trial: o (a) make an order for damages; or o (b) vary an award of damages made by the jury. (4) The appeal court may exercise its powers in relation to the whole or part of an order of the lower court. (Part 3: general rules re court’s case management powers) (5) IF an appeal court: o (a) refuses an application for permission to appeal; o (b) strikes out an appellant’s notice; or o (c) dismisses an appeal o  AND it considers that the application/the appellant’s notice/the appeal is totally without merit  the provisions of Para (6) must be complied with, i.e: o (a) the court’s order must record the fact that it considers the applicant/appellant’s notice/the appeal to be totally without merit; and o (b) the court must at the same time consider whether appropriate to make a civil restraint order.

52.21, Hearing of Appeals  (1) Every appeal will be limited to a “review” of the decision of the lower court, UNLESS: o (a) a PD makes different provision for a particular category of appeal; or o (b) the court considers that in the circumstances of an individual it would be in the interests of justice to hold a “re-hearing”.  (2) Unless it orders otherwise, the appeal court will not receive: o (a) oral evidence; or o (b) evidence which was not before the lower court (‘’fresh evidence’). o [[i.e. the court can receive fresh evidence if it orders, see commentary ]]  (3) The appeal court will allow an appeal where the decision of lower court was: o (a) wrong; or  [can be wrong in: (1) law; (2) a finding of fact; (3) in exercise of a discretion] o (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.  [against natural justice, eg bias, judge not giving reasons etc]  (4) The appeal court may draw any inference of fact which it considers justified on the evidence.

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(5) At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice; unless court gives permission.

Commentary, 52.21.1, Effect of rule Review or re-hearing (52.21(1))?  52.21(1) : every appeal will be limited to a review of decision of lower court; unless: o (a) a PD makes different provision or o (b) in circumstances of an individual appeal would be in ‘interests of justice’ to hold a re-hearing.  So general rule: an appeal is limited to a review.  Egs of statute/PDs which make require appeal to take form of re-hearing instead: PD52D [appeals against decisions affecting regulation of architects & health care professionals] ; appeals against Merchant Shipping Act 1955; appeals under Pt II Immigration & Asylum Act 1999 (carriers’ liability).  Re 52.21(1)(b), the decision whether to review or re-hear (in ‘interests of justice’) will be heavily conditioned by the facts of the particular case; general rule is to review. o A re-hearing is an exception, general rule is a review. Some injustice must have occurred; a simple failure to put one’s case before the lower court is not ordinarily to be cured by a re-hearing.  Changes the old rules, re ‘interlocutory appeals’ from DJs or masters, where the appeal to a judge was a rehearing  New rules give more significance to the decision of the lower court.  SoS Trade v Lewis: Neuberger J, re where the lower court fails to give reasons o (1) generally, if the lower court has not given reasons: is not a ground for holding a re-hearing; o (2) But failure to give reasons might be a ground for a re-hearing if the lower court had been asked to give its reasons and refused to do so; o (3) OR if there was some other good reason for not asking the lower court to give its reasons. o Although, a different case disagreed with first of those propositions: said that failure to give reasons may be grounds for re-hearing, because difficult to review the decision of lower court if reasons aren’t given.  General observations re discretion to hold a re-hearing, CA: o (1) general rule = review. o (2) decision to hold re-hearing only justified where the appeal court considers that, in circumstances of the individual appeal, it is in interests of justice. o (3) it is undesirable to attempt to reformulate the criteria to be applied by the appeal court in deciding whether to hold a re-hearing; o (4) in a case involving some procedural/other irregularity in the lower court, it will be material for the appeal court to have regard (when considering whether to hold a re-hearing) to the fact that an appeal will be allowed where the decision of lower court is rendered ‘unjust because of serious procedural or other irregularity’. [[i.e. more likely to have a re-hearing under

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the serious procedural/irregularity ground of appeal, rather than the ‘wrong’ ground]] o (5) the word ‘will’ in 52.21(3) throws no light on the approach to be adopted re deciding whether to hold a re-hearing under 52.21(1)(b). Appeals from the Registrar of Trade Marks will normally proceed by review rather than rehearing. Where an application for extension of time is made prospectively under 3.1(2)(a) to the DJ: any appeal against their decision should normally be by review; o a re-hearing only appropriate if the DJ’s decision was so inadequately reasoned that the losing party does not know why they lost. CA, discussion re difference between ‘review’ and ‘re-hearing’: o In a case where the appeal court is being asked to reverse findings of fact based on oral evidence which the judge has heard  the approach of appeal court is the same whether it proceeds by review or rehearing). o CF, where the judge’s evaluation of the facts, or exercise of discretion, is challenged  then there is a considerable difference between ‘review’ and ‘re-hearing’. CA, difference between ‘review and ‘rehearing’, five points: a. Because r52.21 applies to a wide range of possible appeals, it contains a degree of flexibility necessary to enable court to achieve the OO of dealing with individual cases justly. i.e. the precise meaning & application of ‘review’ and ‘rehearing’ depend on the circumstances of the case. b. “re-hearing” in 52.21(1) means a re-hearing in the fullest sense of the word; the sort of re-hearing which used to take place on appeal from a master/registrar to a judge in chambers. c. “review” in 52.21(1) is not to be equated with judicial review: the review will engage the merits of the appeal; it will accord appropriate respect to the lower court decision; appropriate respect will be tempered by the nature of the lower court and its decision-making process;  there will also be a spectrum of appropriate respect of lower court deciding depending on the nature of the decision which is challenge.  At one end of spectrum are decisions of primary fact reached after evaluation of oral evidence where credibility is in issue; and purely discretionary decisions.  Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. d. The power of appeal court to receive fresh evidence (52.21(2)) arises both on review and re-hearing. e. The attribution of the label ‘re-hearing’ is not necessary, other than exceptionally, to enable the court upon a hearing by way of review to make the evaluative judgments necessary to determine whether the decision under appeal was or was not wrong. In an appeal by way of re-hearing from a profession’s regulatory or disciplinary tribunal, the court wil...