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P4: Applying for permission to appeal
FTT decision final subject to further appeal
"(10) Where an appeal is notified to the tribunal, the decision of the tribunal on the appeal is final and conclusive.
(11) But subsection (10) is subject to—
(a) sections 9 to 14 of the TCEA 2007,
(b) Tribunal Procedure Rules, and
(c) the Taxes Acts." (TMA 1970, s.50(10) - (11))
​
Nature of appeals
An appeal lies against the decision, not against the reasons or findings of fact
It is necessary to distinguish between the object of an appeal, which is always the decision of the Court or Tribunal and the grounds of appeal, which will usually challenge the reasons for the decision or the findings of fact. Where a person wishes to challenge only a finding of fact, he will need to consider judicial review or, possibly applying for the offending passage to be excised from the judgment (see below).
“The starting point is that an appeal lies against a judgment or order, not against the reasons given by the judge for his judgment or order.” (Price v. HMRC [2015] UKUT 164 (TCC), §31, Nugee J and Judge Nowlan)
“It is perfectly clear that what is meant by “decision” is the tribunal’s overall conclusion, allowing an appeal in whole or in part, or dismissing it, and it is that conclusion which the decision notice conveys…It would be absurd if a would-be appellant were permitted, or required, to mount a separate appeal against the F-tT’s decision in respect of each individual point leading to its overall conclusion. It also does not assist the appellant to argue that she wishes to challenge something which is a “finding” but not a “decision” since s 11 does not confer a right of appeal against a “finding”.” (Carmel Jordan v. HMRC [2015] UKUT 218 (TCC), §17, Judge Bishopp).
However there is related authority pointing in the opposite direction:
“I find force in Mr Kovats’ submission that the “decision” referred to by the Commissioner in paragraph 1 was in each case and in reality two decisions - first, that he had jurisdiction to hear the appeal and, secondly, that the appeal should be dismissed on the merits. Whilst it is difficult to imagine circumstances in which the Secretary of State, having succeeded on the merits, should be permitted to appeal in relation to some aspect of the reasoning of the Commissioner on the merits, I do not think that that necessarily precludes an appeal by him on the jurisdiction point which he lost. Moreover, as Miss Lieven QC submits, the Secretary of State is seeking to change “the decision” described in paragraph 1. He is seeking to establish that the appeals of the claimants should have been rejected for want of jurisdiction rather than dismissed on the merits. It is mainly for these reasons that I do not consider that we are precluded by law from hearing these appeals. Having said that, however, I am not to be taken to be enabling a whole range of “winners’ appeals”. It is significant that, in the present case, the subject-matter of the proposed appeals to this Court is a ruling by the Commissioner on a fundamental legal issue of jurisdiction and not a finding such as the finding of adultery in Lake. The latter was of interest only to the parties and, as between them, was of no lasting legal significance in view of the finding of condonation. Thus, even where ingenuity can result in the decision of a Commissioner being represented as, in reality, two decisions, I would expect this Court to refuse the successful party below permission to appeal against an immaterial finding of no general significance.” (Secretary of State for Work and Pensions v. Morina [2007] EWCA Civ 749, §10).
“The Court of Appeal appears to have imported the principles expressed in Lake v Lake into cases where jurisdiction of appeal is limited to points of law arising out of a decision of a lower court or tribunal. I would expect, therefore, that the Employment Appeal Tribunal should treat as inadmissible an attempt by a successful party before an Employment Tribunal to be permitted to appeal against an immaterial finding of no general significance. I bear in mind that the decision of the Employment Tribunal was obiter; applying the definition of “decision” to be found in Rule 1 of the Employment Tribunal Rules of Procedure. This appeal would not qualify as a “decision”, as that definition comprehends a decision which finally determines any issue which is capable of finally disposing of any claim or part of a claim. The definition of “decision” to which I have referred is a working definition which will enable the Employment Appeal Tribunal to control appeals by successful litigants against unwelcome findings of no general interest.” (Wolfe v. North Middlesex University Hospital NHS Trust [2015] UKEAT/0065/14/MC, §99).
Identifying the decision (look at statutory jurisdiction of Tribunal)
“[Whether the claim to offset capital losses should be allowed and the extent of the allowance] are therefore the issues which were referred to the FTT by Mr Myers' appeal, the issues which the FTT had jurisdiction to decide under s. 49D(3) TMA and the issues they were required to decide by s. 50(7A) TMA. They were also the issues that the FTT did decide in their Conclusions at [191], namely (i) that Mr Myers' claim to offset capital losses should have been allowed, but (ii) that the appropriate allowance was limited to £48. None of the other matters considered by the FTT were matters that were or could have been themselves the subject of an appeal under s. 31(1)(b) or arose for decision under s. 50(7A) TMA; they were, rather, matters that formed part of the reasons why it decided what it did.” (Price v. HMRC [2015] UKUT 164 (TCC), §46, Nugee J and Judge Nowlan).
Decisions on preliminary issues
“The preliminary issue was formulated in general terms because it was made before the issues in respect of each of the three agreements had been crystallised…[T]he finding that $100 million had been agreed did not carry the day because the judge found that the agreement was not binding, but it was still very much an issue which had to be determined in the event that the issue of law was (or is on appeal) decided in favour of Noga, so this was (and still is) a relevant issue, and to declare it can I think properly be characterised as a “decision”, “judgment” “order” or “determination”.” (Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd (No.3) [2002] EWCA Civ 1142, §§45…46).
Who can appeal
Non-party might be able to appeal
“Perhaps the most notable effect of being a party is that a party may have a right of appeal against the decision of the tribunal. That right arises from section 11(2) Tribunals, Courts & Enforcement Acts 2007 which provides that "any party to a case has a right of appeal subject to subsection (8) [which provides that the Lord Chancellor may make provision for a person to be treated as being or not being a party although it appears that no such provision has yet been made]”. The word “party” is not defined in that Act. But whether a person is a party for the purpose of that Act does not seem to me to depend upon whether or not he has been so treated by this tribunal.” (Space Maker Storage 2 Ltd v. HMRC [2014] UKFTT 296 (TC), §35(4), Judge Hellier – directors were permitted to make representations on behalf of a company in liquidation but not made a party).
Successful party generally cannot appeal
It logically follows from the proposition that only the decision can be appealed that a successful party has nothing to appeal against.
“Lake v Lake properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would be Appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal...That this is so is not simply by virtue of interpretation of the words “judgment” or “order”, but as much to do with the fact that the court only has jurisdiction to entertain “an appeal”. A loser in relation to a “judgment” or “order” or “determination” has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try (or the judgment or order of the court in relation to the issue it has to try) is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like.” (Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd (No.3) [2002] EWCA Civ 1142, §27; cited in Price v. HMRC [2015] UKUT 164 (TCC), §33, Nugee J and Judge Nowlan with the comment that “The same principle applies to tribunals” at §34).
“Although at first glance that language [in TCEA 2007, s.11] might be thought to give a right of appeal even to a party successful below, Harrod v Ministry of Defence (where the language was indistinguishable) shows that that is not so, and establishes that no appeal lies where the would-be appellant contends that the decision below was right but the reasons for it wrong.” (Price v. HMRC [2015] UKUT 164 (TCC), §38, Nugee J and Judge Nowlan).
Decisions that contain two decisions:
​
"[12] The other authority is Morina. The Social Security Commissioner had decided that he had jurisdiction over a particular class of decision, but had then
dismissed the claimant’s appeal. The Court of Appeal allowed the Secretary of State to appeal against the Commissioner’s decision, holding that it could be
analysed into two: (i) a decision that he had jurisdiction; and (ii) a decision that the appeal failed on the merits. This allowed the Secretary of State to challenge decision (i), on which it had lost. The same approach could be taken in this case. Maurice Kay LJ emphasised at [10] that the case raised ‘a fundamental legal issue of jurisdiction’; the same is true here." (Information Commissioner v. Moss [2020] UKUT 174 (AAC), Judge Jacobs)
​
Challenging only a finding of fact (apply for the judge to excise the offending passage or seek judicial review)
Possibly apply to be joined as a party and ask for the offending passage to be excised before publication
“The Court's permission is required to add a new party – see CPR r.19.4(1), but the person who wishes to be added can make the application – ibid r.19.4(2). They could then have made an application asking the Recorder to excise the offending passages from the approved judgment. Had he refused to allow them to be joined, or declined to accept that he had power to amend the transcript, alternatively had he declined to do so having accepted he had power, an appealable decision would have been generated. We are aware of the judgment of the Court of Appeal in R v Lord Saville of Newdigate Ex parte B (30th March 1999, unreported) in which jurisdiction was accepted by the Court to entertain a challenge to a finding of the Divisional Court without the appellant seeking to reverse the decision itself…In the unlikely event that something similar to this should happen in the future, in our view the right course would be for the third party who believes they have been unfairly criticised in a judgment to apply to be joined as a party…It is common practice for a Judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes.” (MRH Solicitors Ltd v. Manchester County Court [2015] EWHC 1795 (Admin), §§20…24…26 – The recorder made a finding of fact that a party’s solicitors were “elbows deep in fraud” in relation to a fraudulent personal injuries claim)
Alternatively, judicial review may be sought of the Court/Tribunal’s conduct
If the claim is successful the result will not be that the offending part is excised from the judgment but that the High Court will conclude that no such finding should have been made
"In my opinion, what has happened in the present case cannot lead to or be remedied by any use of the slip rule. Harman J's addition to his judgment as delivered of the sentence, 'That was dishonest', was not done in error, or by oversight or inadvertence. It was a deliberate and intended addition. A judge can be asked to correct under the slip rule a particular sentence in a judgment or a particular part of an order. But if, from the response to such a request or otherwise, it appears that the sentence was deliberate and intended, that is the end of any use which can be made of the slip rule. Nor, in my judgment can the Court of Appeal apply the slip rule in a manner contrary to the intentions of the first instance judge. It is for the judge to decide what to say in his judgment and what order to make. The Court of Appeal can say that he was wrong in law or that there was no evidence to justify a particular finding, but it cannot apply the slip rule to correct a sentence in the judgment that the judge intended to include. In so far as the notice of appeal in the present case seeks an order that Harman J's judgment be amended by the deletion of the words 'That was dishonest' , the appeal cannot succeed. It is, as I have said, for the judge to decide what to say in his judgment." (Secretary of State for Trade and Industry v. Rogers [1996] 1 WLR 1569, at 1577 CA)
“While we are considering an application for judicial review, in our judgment the same principles apply. No more than on appeal can we re-write the judgment of Recorder Osborne. All we can do is to say that the Recorder was not entitled to make a conclusive finding of dishonesty or fraud against MRH and they should be treated as not having such a finding made against them.” (MRH Solicitors Ltd v. Manchester County Court [2015] EWHC 1795 (Admin))
But note judicial review is remedy of last resort: pursue alternative routes first
“We have considered whether this alternative remedy should mean that we decline in our discretion to entertain these applications for judicial review. We have decided that that would not be right. A finding of fraud (if that is what it was) is particularly serious. The error alleged by the present Claimants of unfair treatment is particularly egregious. MRH acted swiftly once they became aware of the parts of the oral judgment which had been critical of them. They tried, without success, to persuade the Recorder to change his judgment. While we have identified a potential procedural route by which they might have had access to an appellate court, we do not think it would be right to shut the judicial review door because the Claimants in these proceedings did not follow it.” (MRH Solicitors Ltd v. Manchester County Court [2015] EWHC 1795 (Admin), §30).
Drafting grounds of appeal
Each alleged error of law should be clearly identified
“The difficulty with grounds of appeal presented in this way arises when one seeks to define the ground of appeal. When doing so, it is necessary to investigate whether each paragraph or sub-paragraph, presented under a heading which refers to a ground of appeal, is intended to refer to a separate ground of appeal or whether it is only intended to be a submission supporting a ground of appeal identified somewhere else. When the F-tT, and later, the Upper Tribunal gave permission to appeal in this case, those tribunals did so by referring to “Ground 2” or “Ground 3” etc. However, we consider that the material presented under such a heading contained more than one separate ground and it is far from clear that either the F-tT or the Upper Tribunal considered the full extent of the matters raised under each heading.” (HMRC v. CCA Distribution Ltd (in administration) [2015] UKUT 513 (TCC), §37, Morgan J and Judge Herrington).
"We make the following suggestions as to the guidance which might usefully be given in such a Practice Statement:
(1) an appellant should comply with the rules as regards the identification of alleged errors in the decision the subject of the intended appeal and as regards the expression of a ground of appeal;
(2) the alleged error of law should be succinctly and clearly identified; (3) the ground of appeal should be succinctly and clearly expressed;” (HMRC v. CCA Distribution Ltd (in administration) [2015] UKUT 513 (TCC), §46, Morgan J and Judge Herrington).
Submissions should be clearly distinct from grounds
“(5) submissions in support of the ground of appeal should be clearly distinct from the ground of appeal itself;” (HMRC v. CCA Distribution Ltd (in administration) [2015] UKUT 513 (TCC), §46, Morgan J and Judge Herrington).
Insufficient reasons: ground should be clearly identified
“(4) if an appellant wishes to appeal on the ground that the decision is inadequately reasoned, that ground of appeal should be clearly stated in the application for permission to appeal so that the F-tT can consider whether it is appropriate to review the decision and to give further reasons;” (HMRC v. CCA Distribution Ltd (in administration) [2015] UKUT 513 (TCC), §46, Morgan J and Judge Herrington).
Appeal court not bound by question posted
“Mr Tager submits, with some justification, that the Defendants' present stance is not reflected in their grounds of appeal. However, the court should not be constrained by the pleadings to answer a question of law which it regards as incapable of useful answer in the terms posed. Accordingly, the right course is to allow the appeal to the extent of setting aside the judge's answer to the preliminary issue, but otherwise to make no order.” (Halpern v. Halpern [2007] EWCA Civ 291, §76).
Applying for permission from FTT to UT
A party faced with an unfavourable decision from the First-tier Tax Tribunal has four options:
(1) Accept the decision;
(2) Appeal the decision;
(3) Apply for the decision to be set-aside;
(4) Apply for a review.
Setting aside a decision deals primarily with procedural defects and requires a separate application and is dealt with elsewhere (see P6: Setting a decision aside).
A person who wishes to appeal must seek permission from the FTT. This application will normally be considered by the same Tribunal that gave the decision being appealed. If permission is refused, the appellant may renew his application to the Upper Tribunal who will consider it on the papers. If the Upper Tribunal refuses permission on the papers, the appellant may ask for a reconsideration at an oral hearing. In the event that permission is still refused at that stage the appellant has one last role of the dice, which is to seek judicial review of the Upper Tribunal’s decision refusing to grant permission. Time limits apply at every stage.
Legal basis (TCEA 2007 not FTT procedural rules)
“…neither that rule [rule 39(1)] nor any other confers a right of appeal; they merely regulate the manner in which a right of appeal, if there is one, must be exercised.” (Carmel Jordan v. HMRC [2015] UKUT 218 (TCC) §18, Judge Bishopp)
Application for a review
“I conclude then that it is at least reasonably arguable that an appellant may, without making a PTA application, make an application by virtue of s 9(3)(c) TCEA for the tribunal to consider whether to review its decision. I am fortified in this view by references in the F-tT(Tax) Rules to an application for a review. There is rule 42 which expressly refers to “an application for a decision to be … reviewed”.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §37, Judge Thomas).
Application for review not limited to errors of law
“If I am right that Dr Milton’s “request” for a review could be treated as an application under s 9 TCEA independently of his PTA application, then I think that in principle I am not limited to deciding to review only where there is an error of law. The other possibilities are that I could review if there was an error in fact finding or simply a slip, but the latter could anyway be corrected under rule 37.” (Couldwell Concrete Flooring Ltd v. HMRC [2017] UKFTT 85 (TC), §39, Judge Thomas).
However:
“It expressed itself as an “application” for a review. However, the relevant rules governing review of a decision of the Upper Tribunal make no provision for such an application: the power to review is simply one which it is left open to the UT to exercise of its own initiative. It is true that s.10 of the 2007 Act contemplates that the Upper Tribunal power of review is exercisable in two different ways: of its own initiative (s.10(2)(a) or “on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.” However, s.10(3)(b) states that Tribunal Procedure Rules may provide that this review power “is exercisable only of the tribunal’s own initiative”. That in our judgement is the effect of rule 45(1). Subparagraph (d) of s.10(3) further provides that such Rules may provide that this power to review the decision of its own initiative “is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules”. That in our judgment is the effect of rule 45(1)(a) and (b).” (AA [2015] UKUT 330 (IAC), §7).
Treating application for review as an application for permission to appeal
“We do not consider, in the absence of having heard proper submissions on the matter, that it would be appropriate for us to attempt a ruling on the general issue of when an application for review should be treated as an application for permission to appeal, although we can certainly envisage situations where there may be strong reasons to do so – e.g. in the context of an application from a litigant in person which clearly seeks onward appeal but refers erroneously to an application for review. Any such ruling would have to bear in mind that (i) there is no prescribed form for an application for permission to appeal, only a requirement in rule 44 that such an application be made in writing; and (ii) rule 45 confers a discretion and to exercise it other than sparingly would undermine the clear structure of the Procedure Rules. The general issue is best left for another day.” (AA [2015] UKUT 330 (IAC), §11).
Decision includes interlocutory decision/case management decision
“As I have said, the AAC decided [in LS v. London Borough of Lambeth [2010] UKUT 461 (AAC)] that there was, and their conclusion was consistent with the assumption of this tribunal in Connect Global and Capital Air Services that there is ordinarily a right to appeal to this tribunal against interlocutory decisions of the Tax Chamber of the First-tier Tribunal.” (Carmel Jordan v. HMRC [2015] UKUT 218 (TCC), §36, Judge Bishopp)
Form of application to the FTT
​
An application for permission to appeal must be made in writing but there is no specified form on which it must be made.
“(1) A person seeking permission to appeal must make a written application to the Tribunal for permission to appeal.” (FTT Rules r.39(1)).
“(5) An application under paragraph (1) must--
(a) identify the decision of the Tribunal to which it relates;
(b) identify the alleged error or errors in the decision; and
(c) state the result the party making the application is seeking.” (FTT Rules r.39(5)).
​
​​
Power to treat other application as an application for permission to appeal
​“The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.” (FTT Rules r.42).
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Time limit
​
Basic time limit: 56 days from receipt of both decision and written reasons
“(2) An application under paragraph (1) must be sent or delivered to the Tribunal so that it is received no later than 56 days after the latest of the dates that the Tribunal sends to the person making the application--
(za) the relevant decision notice;
(a) where--
(i) the decision disposes of all issues in the proceedings; or
(ii) subject to paragraph (2A), the decision disposes of a preliminary issue dealt with following a direction under rule 5(3)(e),
full written reasons for the decision;
(b) notification of amended reasons for, or correction of, the decision following a review; or
(c) notification that an application for the decision to be set aside has been unsuccessful." (FTT Rules r.39(1))
Late applications must include a request for an extension of time
“(4) If the person seeking permission to appeal sends or delivers the application to the Tribunal later than the time required by paragraph (2) or by any extension of time under rule 5(3)(a) (power to extend time)--
(a) the application must include a request for an extension of time and the reason why the application notice was not provided in time; and
(b) unless the Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application.” (FTT Rules, r.39(4)).
​
Preliminary issues
Where the Tribunal determines a preliminary issue, it may be undesirable for the losing party to have to decide whether to appeal that decision before he know the final outcome of the appeal. For that reason, the Tribunal may direct that the time limit for appealing the preliminary decision runs from the date of the decision disposing of all issues in the proceedings. Common sense tells one that this should be interpreted as meaning the date when the decision disposing of the last issue(s) in the proceedings is sent to the parties. Until that happens, the decision is not final.
“(2A) The Tribunal may direct that the 56 days within which a party may send or deliver an application for permission to appeal against a decision that disposes of a preliminary issue shall run from the date of the decision that disposes of all issues in the proceedings.” (FTT Rules r.39(2), (2A)).
Extended time limit following review
Where the Tribunal decides to undertake a review, and amends the decision, a fresh 56 day time limit commences when the outcome of that review is notified to the parties (see above, r.39(2)(b)).
Extended time limit following in-time set-aside application
“(3) The date in paragraph (2)(c) applies only if the application for the decision to be set aside was made within the time stipulated in rule 38 (setting aside a decision which disposes of proceedings), or any extension of that time granted by the Tribunal.” (FTT Rules r.39(3)).
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Suspending effect of decision pending appeal
“(3)…the Tribunal may by direction –
(l) suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal, as the case may be, of an application for permission to appeal, a review or an appeal.” (FTT Rules, r.5(3)(l)).
​
Renewing the application to the Upper Tribunal
If the FTT refuses permission to appeal (in whole or part) it must notify the applicant of its right to apply to the Upper Tribunal for reconsideration
​
"(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—
(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and
(b) that application has been refused or has not been admitted or has been granted only on limited grounds." (SI 2008/2698, 21(2))
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Form of application
"(4) The application must state—
(a) the name and address of the appellant;
(b) the name and address of the representative (if any) of the appellant;
(c) an address where documents for the appellant may be sent or delivered;
(d) details (including the full reference) of the decision challenged;
(e) the grounds on which the appellant relies; and
(f) whether the appellant wants the application to be dealt with at a hearing." (SI 2008/2698, 21(4))
Must provide copy of decision being challenged and refusal of permission to appeal
​
"(5) The appellant must provide with the application a copy of—
(a) any written record of the decision being challenged;
(b) any separate written statement of reasons for that decision; and
(c) if the application is for permission to appeal against a decision of another tribunal, the notice of refusal of permission to appeal, or notice of refusal to admit the application for permission to appeal, from that other tribunal." (SI 2008/2698, 21(4))
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Notice of refusal include permission on limited grounds
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"(8) In this rule, a reference to notice of a refusal of permission to appeal is to be taken to include a reference to notice of a grant of permission to appeal on limited grounds." (SI 2008/2698, 21(8))
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Time limit: 1 month from FTT notice of refusal
"(3) An application for permission to appeal must be made in writing and received by the Upper Tribunal no later than—
[...]
(b) otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant." (SI 2008/2698, 21(3))
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Late application to the Upper Tribunal
​
(6) If the appellant provides the application to the Upper Tribunal later than the time required by paragraph (3) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—
(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and
(b) unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the application." (SI 2008/2698, 21(6))
Application to Upper Tribunal following late application to the FTT
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(7) If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant's application for permission to appeal because the application for permission or for a written statement of reasons was not made in time—
(a) the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and
(b) the Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do so." (SI 2008/2698, 21(7))
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Oral reconsideration of refusal by Upper Tribunal on papers (apply within 14 days)
"(3) Paragraph (4) applies where the Upper Tribunal, without a hearing, determines an application for permission to appeal—
(a) against a decision of—
(i) the Tax Chamber of the First-tier Tribunal;
[...]
(4) Subject to paragraph (4A), in the circumstances set out at paragraph (3) the appellant may apply for the decision to be reconsidered at a hearing if the Upper Tribunal—
(a) refuses permission to appeal or refuses to admit a late application for permission; or
(b) gives permission to appeal on limited grounds or subject to conditions." (SI 2008/2698, 22(3), (4))
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Time limit: 14 days
​
"(5) An application under paragraph (4) must be made in writing and received by the Upper Tribunal within 14 days after the date on which the Upper Tribunal sent written notice of its decision regarding the application to the appellant." (SI 2008/2698, 22(5))
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No oral reconsideration if marked as totally without merit on the papers
"(4A) Where the Upper Tribunal considers the whole or part of an application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the person seeking permission may not request the decision or part of the decision (as the case may be) to be reconsidered at a hearing." (SI 2008/2698, 22(4A))
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Judicial review of UT refusal to grant permission to appeal from FTT
Each ground of review must satisfy second appeal criteria
“the Cart approach is modelled on the rules for second appeals to the Court of Appeal (CPR 52.13), and the Court of Appeal routinely gives limited permission on the basis that the other grounds do not meet the criteria for a second appeal…If the granting of permission on one such general interest ground had the effect of opening the gates to all arguable points, whether or not they had an element of general interest attached to them, or raised some other compelling reason why they should be heard, the restrictive approach indicated by the Supreme Court would be substantially undermined…The higher “second appeals” threshold must apply to each ground of a Cart challenge, considered separately.” (R (oao Decker) v. Secretary of State for the Home Department [2014] EWHC 354 (Admin), §§100…101…102)
See the consideration of the High Court's jurisdiction in this area in R (oao Privacy International Ltd) v. Investigatory Powers Tribunal [2019] UKSC 22
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Notifying appeal to the UT where FTT grants permission (1 month)
"(1) This rule applies—
(a) to proceedings on appeal to the Upper Tribunal for which permission to appeal is not required, except proceedings to which rule 26A[, 26B or 26C] applies;
(b) if another tribunal has given permission for a party to appeal to the Upper Tribunal; or
(c) subject to any other direction by the Upper Tribunal, if the Upper Tribunal has given permission to appeal and has given a direction that the application for permission to appeal does not stand as the notice of appeal." (SI 2008/2698, 23(1))
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Time limit (1 month)
​
"(2) The appellant must provide a notice of appeal to the Upper Tribunal so that it is received within 1 month after—
(a) the date that the tribunal that gave permission to appeal sent notice of such permission to the appellant;" (SI 2008/2698, 23(2))
Extension of time
​
"(5) If the appellant provides the notice of appeal to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a) (power to extend time)—
(a) the notice of appeal must include a request for an extension of time and the reason why the notice was not provided in time; and
(b) unless the Upper Tribunal extends time for the notice of appeal under rule 5(3)(a) (power to extend time) the Upper Tribunal must not admit the notice of appeal." (SI 2008/2698, 23(5))
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Form of notice
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"(3) The notice of appeal must include the information listed in rule 21(4)(a) to (e) (content of the application for permission to appeal) and, where the Upper Tribunal has given permission to appeal, the Upper Tribunal's case reference.
(4) If another tribunal has granted permission to appeal, the appellant must provide with the notice of appeal a copy of—
(a) any written record of the decision being challenged;
(b) any separate written statement of reasons for that decision; and
(c) the notice of permission to appeal." (SI 2008/2698, 23(3))
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UT to send copy of notice and documents to respondent
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"(6) When the Upper Tribunal receives the notice of appeal it must send a copy of the notice and any accompanying documents—
(a) to each respondent;" (SI 2008/2698, 23(6))
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Appealing to Court of Appeal
"Permission to appeal to the Court of Appeal in England and Wales or leave to appeal to the Court of Appeal in Northern Ireland shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that—
(a)the proposed appeal would raise some important point of principle or practice; or
(b)there is some other compelling reason for the relevant appellate court to hear the appeal." (SI 2008/2834, r.2)
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Grounds of appeal v. skeleton argument
Grounds identify in what way the court below was wrong, skeleton gives the reasons why the court was wrong
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"[113] ...we wish to take this opportunity to emphasise again how important the drafting of the grounds of appeal is to the proper determination of applications for PTA. This court is far too often presented with grounds which are over-lengthy and ill-focused, and where the distinct roles of the grounds and the skeleton argument are not respected. The correct approach has been spelt out in a number of recent cases. We confine ourselves to three examples:
i) In Rasheed v. Secretary of State for the Home Department [2014] EWCA Civ 1493 Moore-Bick LJ said, at [12]:
"Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below … erred. If drafted as the rules intend and require, they provide the court and the parties with a clear and concise statement of the issues that will arise on the appeal and to which argument will be directed. They are not intended to be a vehicle for describing in general terms the circumstances giving rise to the appeal; nor are they intended to serve as a vehicle for setting out the appellant's arguments or submissions. That is the function of the skeleton argument. To include material of that kind in the grounds of appeal renders them unhelpful both to the parties and to the court."
(2) In Goring, the Court of Appeal said at [36]:
"… [A]dvocates settling grounds of appeal ought to take care to draft each ground crisply and clearly as a properly formulated ground of appeal. Discursive, repetitive or prolix grounds are unhelpful and add unnecessarily to the burdens of a judge dealing with an application for permission to appeal. Each main issue in the proposed appeal should be succinctly identified in a separate ground. Where this has not been done, it is likely to be more difficult for an applicant to complain that a particular point has not been addressed by the judge."
(3) In Harverye v. Secretary of State for the Home Department [2018] EWCA Civ 2848, Hickinbottom LJ said at [56]-[57]:
"56. … [I]t is incumbent upon the Appellant to set out in his grounds of appeal, clearly and 'as concisely as practicable', the relevant part of the decision and the way(s) in which it is said to be wrong or unjust (paragraph 5(1) of CPR PD 52C). No more is required of grounds of appeal. Indeed, no more may be incorporated in them.
57. The grounds of appeal are the well from which the argument must flow. The reasons why it is said the decision is wrong or unjust must not be included in the grounds, and must be confined to the skeleton argument (paragraph 5(2) of CPR PD 52C). …"
[114] In addition, we would add the following:
i) The grounds of appeal are an essential analytical tool for the court, to enable it to identify the issues which it is being asked to decide: they are not a vehicle for advocacy, which is the role of the skeleton argument.
ii) The starting point in every case must be for the appellant to think through carefully what specific errors the court below is alleged to have made. Once these errors have been identified, they need to be clearly and concisely articulated. In the unlikely event that the grounds are numerous, they must be presented in a structure which makes clear how they inter-relate.
iii) Each ground of appeal must be separately numbered, and the particular passages in which the judge appealed is said to have gone wrong must be specifically identified.
iv) The purpose of the grounds of appeal is to identify the points on which permission to appeal is sought, not to argue those points. Supporting submissions belong in the skeleton argument.
v) It follows that grounds of appeal should be short; in many cases, a few sentences will suffice. In a complex case, grounds of appeal may be longer, but clarity and concision should never be compromised." (Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156, Sir Geoffrey Vos, MR)
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Explain how grounds interrelate
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"[114(ii)] The starting point in every case must be for the appellant to think through carefully what specific errors the court below is alleged to have made. Once these errors have been identified, they need to be clearly and concisely articulated. In the unlikely event that the grounds are numerous, they must be presented in a structure which makes clear how they inter-relate." (Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156, Sir Geoffrey Vos, MR)
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Grounds should identify specific passage containing the error
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"[114(iii)] Each ground of appeal must be separately numbered, and the particular passages in which the judge appealed is said to have gone wrong must be specifically identified." (Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156, Sir Geoffrey Vos, MR)
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Important point of principle requirement applies to each ground
"[21]...The Court has express power under CPR r 52.6(2)(a) when granting permission either under this rule, which is the rule for first appeals, or under CPR r 52.7, which is the rule for second appeals, to limit the issues to be heard. It is standard practice when considering an application for permission to appeal in a first appeal to consider whether each of the grounds has a real prospect of success, even though under CPR r.52.6 the rule is phrased by reference to whether the appeal has such a prospect. Similarly, it is standard practice when considering permission to appeal for a second appeal under CPR r 52.7 or under Article 2 of the Appeals Order to consider whether the grounds put forward should all be permitted to go forward to a full appeal. I see nothing wrong in the familiar practice of permitting some grounds to go forward on the basis they do raise an important point of principle or practice but refusing permission to appeal on other grounds on the basis that they do not. Of course, if the issues are all truly bound up together the Court may well allow grounds to go further even if, had they been viewed in isolation, it would have been difficult to say that they raised any important point of principle. But the Court is certainly not in my judgment obliged to permit all arguable grounds to go forward just because one of them, and hence the appeal as a whole, raises some important point of principle and practice." ​(Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
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Reopening a refusal of permission (exceptional circumstances)
"(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.
(3) This rule does not apply to appeals to the County Court.
(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in Practice Direction 52A." (CPR 52.30)
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Exceptional circumstances required
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"[8(1)] But CPR r 52.30 is not to be interpreted as conferring a wide-ranging discretion on the Court to decide whether it is appropriate to reopen an appeal in the light of all the circumstances. The CPR do not expand the Court's jurisdiction but regulate it. That was laid down by this Court in Jaffray v The Society of Lloyd's [2007] EWCA Civ 586; see the judgment of Buxton LJ at [7]-[9], where inter alia he says:
"The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. ... And quite apart from that general rule, it is apparent from the wording of CPR r 52.17(1) [the equivalent to what is now r 52.30(1)] (which speaks of a jurisdiction not being exercised unless various conditions, including avoidance of real injustice, are fulfilled) that, as the helpful commentary in Civil Procedure 2007, vol 1, para 52.17.1 explains, it was passed to limit, and not to extend, the operation of the supposed jurisdiction under Taylor v Lawrence."
In other words, it is not any circumstances which can be characterised as exceptional that engage the rule. It is only those circumstances which are exceptional and make it appropriate to reopen the appeal as exemplified by Taylor v Lawrence and the subsequent cases, that do so." (Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
Integrity of earlier litigation process has been critically undermined
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"[8(2)] All the cases proceed on the basis that what needs to be shown is something that demonstrates that the impugned decision was not a proper judicial decision at all: see for example Re Uddin (a Child) [2005] EWCA Civ 52 at [18] in the judgment of the Court delivered by Dame Elizabeth Butler-Sloss P. Among other things she says:
"But the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result (which must be the whole scope of a fresh evidence case) but rather, at least primarily, with special circumstances where the process itself has been corrupted. The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud (where relied on to reopen a concluded appeal rather than found a fresh cause of action: Wood v Gahlings The Times 29 November 1996); bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process. Such instances are so far from the norm that they will inevitably be exceptional. And it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of the finality in litigation to second place."" (Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
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Failure to grapple with the issue raised or to understand it
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"[8(2)] ... To that can now be added the recent jurisprudence exemplified by the decision of this Court in Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156: see at [63]-[64] in the judgment of the Court delivered by Sir Geoffrey Vos MR, in which he refers to a failure by the Lord or Lady Justice in question to grapple with the issues raised by the application for permission, or of them wholly failing to understand the issues raised. But these are again failures of process. We were not shown any case where a successful application under CPR r 52.30 had been based on anything other than a failure of process of these types." (Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
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[63] At [66] in Wingfield, the court said this:
"In our view, an application for reconsideration of a refusal of permission to appeal involves a two-stage process. First, the court should ask whether the Lord or Lady Justice of Appeal who refused permission to appeal grappled with the issues raised by the application for permission, or whether they wholly failed so to do. Secondly, if the Lord or Lady Justice of Appeal did grapple with the issues when refusing permission to appeal, the court should ask whether, in so doing, a mistake was made that was so exceptional, such as wholly failing to understand a point that was clearly articulated, which corrupted the whole process and where, but for that error, there would probably have been a different result."
[64] The claimants submitted that a judge considering an application for PTA must "grapple with" (or "engage with")[2] the issues raised. This means, in our view, that the appellate judge should address the essential points raised by the grounds and identify why in their view the point in question does not satisfy the test for the grant of PTA: cf. Wasif at [20]. The concept of "grappling with" the issue does not connote any particular degree of detail: what is required depends on the case.
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[106] It does not follow from what we have said thus far that the stringent test imposed by CPR 52.30 is satisfied. We have, however, concluded that in this case it is, for the following reasons:
i) The essential points that the judge failed to address go to the heart of the claimants' challenge to the judge's decision on abuse of process. It was wrong for the appellate judge to have failed to grapple with the contentions that neither unmanageability nor the ability to bring proceedings elsewhere are grounds, in law, for striking out proceedings, properly brought and served.
ii) These failures, in our judgment, can properly be regarded as critically undermining the integrity of the process for granting PTA, in the sense in which that phrase is used in the authorities.
iii) In our view, if the appellate judge had grappled with the grounds in question there was a "powerful probability" that the outcome would have been different, and that he would have granted PTA. We have reached the conclusion, as appears below, that PTA should have been granted.
iv) Finality is of fundamental importance in this context, but in the most unusual circumstances of this case, we have no doubt that the integrity of the PTA process has been undermined, and re-opening is justified on a proper application of the authorities we have cited.
v) We have taken into account, but not regarded as determinative, that the claim itself is of exceptional importance, both because of the number of claimants and the importance to them of obtaining such compensation as they may prove to be entitled to. It is also fair to say that the issues raised by BHP's strike-out application are of wide general importance.
vi) Although the appellate judge's failure to appreciate that some of the points which he took from the judge's PTA judgment were no longer being pursued by the claimants is entirely venial given that he was not supplied with the draft grounds, we can understand the claimants' concern that it may have influenced his approach to the grounds that were before him." (Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156, Sir Geoffrey Vos, MR)
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Wrong result not sufficient
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"[8(3)] Mr Peacock said that "something had gone badly wrong" with the decision by Arnold LJ. But it is well established that CPR r 52.30 does not confer a licence on the Court to reopen a decision on the grounds merely that the wrong result was reached. There is a very clear illustration of this in Barclays Bank plc v Guy (No 2) [2010] EWCA Civ 1396, another decision of this Court. There Lloyd LJ, first on paper and then again sitting with Carnwath LJ at an oral hearing, had refused permission to appeal on the ground that the law was clear. On an application to reopen under what was then CPR r 52.17, the Court of Appeal accepted (as indeed had the Respondent's counsel – see at [12]) that it was possible that the law was not as clear as they had thought, Mr Guy's case being put much more strongly on this occasion than it had been before and on at least one new basis (see at [33]). But this was not enough; see at [36] per Lord Neuberger of Abbotsbury MR, where he said that neither of the points relied on:
"can be characterised as "corrupting the judicial process", or even near to doing so."" (Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
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Application to reopen refusal should be made ASAP
"[18]...Where permission to appeal has been granted on some grounds but not others so that an appeal will take place in any event, an application under CPR r 52.30 on the basis that the refusal of permission on the refused grounds should be reopened must in my judgment be brought as soon as possible and (assuming of course that the relevant facts were then known to the applicants) well before the hearing of the substantive appeal so that if the CPR r 52.30 application succeeds there can be a single hearing of the appeal rather than two. This is particularly so if, as here, it is suggested that the refused grounds should have been permitted precisely because they were all bound up with the grounds on which permission to appeal was granted. Here the LLPs knew the terms of the limited permission granted by Arnold LJ in February 2020 and could at that stage have worked out the potential consequences were their appeal on Grounds 1 and 3 to succeed. It was in those circumstances wholly wrong in my judgment to keep the CPR r 52.30 application back until after they saw whether their appeal on Grounds 1 and 3 succeeded or not. I would have been prepared to refuse this application on that ground alone, although, for the reasons I have given, it does not in fact arise.
[19] I add that even if there had been justification for waiting until the outcome of the appeal was known, it is very difficult to see any justification for delaying from 4 August 2021 to 11 March 2022 before bringing the application. It is true that CPR r 52.30 does not contain any specific time limits. That is understandable, as in some cases it may take a long time for matters justifying reopening to come to the attention of the applicant. But that does not mean that where the applicant does know the grounds on which he wishes to make his application he can be as leisurely as he likes about it." ​(Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)
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Multi-party appeals - any party can appeal
"[31] At the beginning of the hearing, we raised with the parties Mr Bell’s entitlement to appeal against the Decision. Mr Bell had not made any application to the FTT for disclosure. Instead, HMRC had applied for a direction to disclose documents to Mr Bell. Neither of the applications that the FTT considered in the Decision was made by Mr Bell. Nevertheless, Mr Bell is entitled to be heard in this appeal since he is a party to the FTT proceedings and s11 of the Tribunals, Courts and Enforcement Act 2007 confers a right of appeal on any party. He clearly has an interest in the outcome of the applications made by HMRC and Mr Mitchell." (Mitchell and Bell v. HMRC [2021] UKUT 250 (TCC), Judge Richards and Judge Cannan)
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