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Jolly v Jay, Court of Appeal, 7 March 2002

9 April 2002
The issues

Appeals Part 52

The facts

In this case the Court of Appeal gave clarification with regard to the preliminary stages of the Appeals process. This was a second tier Appeal in which the Master’s decision had been the subject of an Application for permission to appeal to the Judge. The Judge had refused to grant an Oral Hearing and the would-be Appellants had appealed to the Court of Appeal in respect of that refusal.

The decision

1. The Court of Appeal had no jurisdiction to hear an Application for permission to appeal from “a decision of an Appeal Court”.

Appeal Court is defined in 52.1(iii) Civil Procedure Rules “the Court to which an Appeal is made”, ie in this case the Judge below who heard the oral request for permission to appeal from the Master. The reason lies in Section 54(iv) Access to Justice Act 1999 – “no Appeal may be made against a decision of a Court under this section to give or refuse permission (but this section does not affect any right under Rules of Court to make a further Application or permission to the same or another Court)”.

This point came before the Court of Appeal in Riniker -v- University College London. The distinction is between the right given by Rules of Court, i.e. the right to have the Application for permission which was refused by the Master heard by the Judge and an Appeal against the Judge’s decision where the Judge was himself sitting as an Appeal Court.

2. The Court noted that the Civil Appeals Office had been listing such applications, notwithstanding the absence of jurisdiction by the Court of Appeal to him. That practice should now stop.

3. The Court of Appeal did have jurisdiction to entertain an Application for permission to appeal against an Order for costs made by the Judge on an Application for permission to appeal.

4. The position of the Respondent to an Application for permission to appeal – the Court noted that there was no uniform practice throughout the Country of notifying Respondents of the time fixed for any Hearing in Open Court for permission to appeal. There ought to be such a common practice.

The general principles in respect of Appeals were that Courts should give permission to appeal only if there was a real prospect of success, or there was some other reason why the Appeal should be heard.

In the case of second appeals to the Court of Appeal, the Appeal must raise an important point of principle or practice or there must be some other compelling reason for the Court of Appeal to hear it.

Therefore, a Respondent should only file submissions at that stage if they went to the issue of whether or not the Appeal would meet the relevant threshold test or if there was some material inaccuracy in the papers put before the Court.

Submissions as to merits should not be put until the Appeal stage.

There would be no obligation on a Respondent to file submissions at the permission stage however.

Where the Application for permission was on paper the submission from the Respondent must similarly be on paper. Even if the Hearing was oral, the Respondent would do well to think as to whether the submissions could equally be made in writing and he might not be allowed the costs of his attendance at the Hearing.

In general, Respondents should recall that they had no entitlement to address the Court unless the Court made specific Directions that they might do so or granted such permission at the Hearing. These matters should all be considered when it came to Respondent’s applications for costs at Oral Hearings for permission to Appeal.

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