Co-authored by James Bourne (Trainee Solicitor)
On 3 October 2016, Part 52 of the Civil Procedure Rules was restructured following years of piecemeal amendment. The changes whilst significant are not as far reaching as those proposed during the consultation process. For example, there has been no change at this stage to the general threshold test on appeal to require a substantial rather than a real prospect of success.
The key changes to Part 52 relate to:
- the removal of an automatic right to renew the application at an oral hearing if an application for permission to appeal has been rejected on paper;
- the express inclusion of a requirement of a real prospect of success in the test for permission on second appeals; and
- a general move to reviewing decisions on applications made during Court of Appeal proceedings without an oral hearing.
An application for permission to appeal to the Court of Appeal issued on or after 3 October 2016 will now be determined on paper without an oral hearing unless the judge considering the application is of the opinion that the application cannot be fairly determined on paper. It is envisaged that any oral hearing will take place promptly (generally within 14 days of the direction for a hearing), in order to try to ensure that applications are dealt with promptly. This is a departure from the previous rules under which an oral hearing could be requested if the application was rejected on paper unless it had been determined totally without merit.
The test for permission to appeal for second appeals (i.e. an appeal of a decision that was itself an appeal) now expressly includes a requirement that the appeal must have a real prospect of success in addition to raising an important point of principle or practice, unless there is some other compelling reason for the Court of Appeal to hear it. Previously, there was no requirement to demonstrate that the appeal had a real prospect of success, though this has always been, and continues to be, the test for first appeals.
Part 52 has also been amended so that the default position for the determination of any appeal-related application during the course of appeal proceedings is that it will be dealt with on paper without an oral hearing. However, in most instances, the judge or court officer will have discretion to hold an oral hearing if they are of the opinion the application cannot be fairly determined on paper.
In recent years, the workload of the Court of Appeal has increased considerably resulting in a backlog of cases waiting to be heard: the current waiting time is reported to be up to 19 months for full appeals. In the foreword to the consultation on the proposed changes to Part 52, Lord Dyson observed that "unless urgent and concerted action is taken to ease the pressures on the Court of Appeal we risk damaging not just the international reputation of the court, but its integral role in the proper and efficient administration of justice in this country". It is hoped that the restructuring of Part 52 will help to address this issue.
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