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R6: Court of Appeal

PROCEDURE FOR APPLYING

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PROCEDURE FOR APPLYING

Apply to the UT first

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"(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal, subject to subsection (14).

(3) That right may be exercised only with permission (or, in Northern Ireland, leave).

(4) Permission (or leave) may be given by—

(a) the Upper Tribunal, or

(b) the relevant appellate court,

on an application by the party.

(5) An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal." (TCEA s.13)

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Apply to the UT first

Applications to set aside UT decision (1 month)

 

"(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a)the Upper Tribunal considers that it is in the interests of justice to do so; and

(b)one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;

(b)a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;

(c)a party, or a party's representative, was not present at a hearing related to the proceedings; or

(d)there has been some other procedural irregularity in the proceedings.

(3) Except where paragraph (4) applies, a party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 1 month after the date on which the Upper Tribunal sent notice of the decision to the party." (UT Rules r.43)

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See further: P6: Setting decision aside

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Applications to set aside UT decision (1 month)

Power to treat applications as of a different kind

 

"The Upper 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." (UT Rules r.48)

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Application to UT

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Application to UT
Power to treat applications as of a different kind

- Written application identifying alleged errors of law

 

"(1) Subject to paragraphs (4A) and (4B), a person seeking permission to appeal must make a written application to the Upper Tribunal for permission to appeal.

...

(7) An application under paragraph (1) ... must—

(a) identify the decision of the Upper Tribunal to which it relates;

(b) identify the alleged error or errors of law in the decision; and

(c) state the result the party making the application is seeking." (UT Rules, r.44)

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- Written application identifying alleged errors of law

- Time limit: 1 month

 

"(4) Where paragraph (3), (3A), (3D) or (4C) does not apply, an application under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received within 1 month after the latest of the dates on which the Upper Tribunal sent to the person making the application—

(a) 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.

...

(5) The date in paragraph (3)(c) or (4)(c) applies only if the application for the decision to be set aside was made within the time stipulated in rule 43 (setting aside a decision which disposes of proceedings) or any extension of that time granted by the Upper Tribunal." (UT Rules, r.44)

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- Time limit: 1 month

- Late application must include request for extension

 

(6) If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required by paragraph ... (4), 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 Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application." (UT Rules, r.44)

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- Late application must include request for extension

Consideration by UT

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Consideration by UT

- Power to review decision (overlooked legislative provision or binding authority)

 

"(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if—

(a) when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or

(b) since the Upper Tribunal's decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal's decision, could have had a material effect on the decision." (UT Rules r.45)

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Procedure for review

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"(1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an application for permission to appeal).

(2) The Upper Tribunal must notify the parties in writing of the outcome of any review and of any rights of review or appeal in relation to the outcome.

(3) If the Upper Tribunal decides to take any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again." (UT Rules r.46)

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- Power to review decision (overlooked legislative provision or binding authority)

- Notify outcome of permission decision

 

"(2) If the Upper Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision or part of it, the Upper Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Upper Tribunal must provide a record of its decision to the parties as soon as practicable.

(4) If the Upper Tribunal refuses permission to appeal it must provide with the record of its decision—

(a)a statement of its reasons for such refusal; and

(b)notification of the right to make an application to the relevant appellate court for permission to appeal and the time within which, and the method by which, such application must be made.

(5) The Upper Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission." (UT Rules r.45)

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- Notify outcome of permission decision

APPLICATION TO CoA

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APPLICATION TO CoA

Time limit: 28 days from UT decision on permission

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"3.3 Subject to rule 52.9—

Where the appellant wishes to appeal against a decision of the Upper Tribunal, the appellant’s notice must be filed within 28 days of the date on which notice of the Upper Tribunal’s decision on permission to appeal to the Court of Appeal is sent to the appellant.

3.3A Where a statement of reasons for a decision is given later than the notice of that decision, the period for filing the appellant’s notice is calculated from the date on which the statement is sent to the appellant." (CPR PD52D)

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Time limit: 28 days from UT decision on permission

- Late filing: request for extension of time ​in appellant's notice

 

"(1) Where the time for filing an appellant’s notice has expired, the appellant must –

(a) file the appellant’s notice; and

(b) include in that appellant’s notice an application for an extension of time.

(2) The appellant’s notice must state the reason for the delay and the steps taken prior to the application being made.

(3) Where the appellant’s notice includes an application for an extension of time and permission to appeal has been given or is not required, the respondent has the right to oppose that application and to be heard at any hearing of that application. In respect of any application to extend time –

(a) The respondent must–

(i) be served with a copy of any evidence filed in support of the application; and

(ii) inform the court in writing of any objections to the grant of the extension of time within 7 days of being served with the appellant’s notice.

(b) A respondent who unreasonably opposes an application for an extension of time may be ordered to pay the costs of the application.

(c) An application for an extension of time will normally be determined without a hearing unless the court directs otherwise." (CPR PD52C, para 4)

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File appellant's notice requesting permission​

 

"(1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice." (CPR 52.12)

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"(1) An appellant’s notice (Form N161), including grounds of appeal on a separate sheet, must be filed and served in all cases. The appellant’s notice must be accompanied by the appropriate fee or, if appropriate, a fee remission certificate." (CPR PD52C, para 3)

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File appellant's notice requesting permission​

- Method of filing (legally represented appellants must use e-filing)

 

"(2) If the appellant is legally represented, the appellant’s notice and accompanying documents must be filed using the HMCTS e-filing service.

(3) If the appellant is not legally represented, the appellant’s notice and accompanying documents must be filed using the HMCTS e-filing service by e-mail, or by post to the Civil Appeals Office Registry, Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL." (CPR PD52C, para 3)

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- Method of filing (legally represented appellants must use e-filing)

Additional documents to file at same time (including skeleton argument)

 

"(4) At the same time as filing an appellant’s notice, the appellant must provide for the use of the court one copy of each of the following –

(a) the sealed order or other determination being appealed;

(b) any order granting or refusing permission to appeal, together with a copy of the judge’s or tribunal’s reasons for granting or refusing permission to appeal;

(c) any witness statements or affidavits relied on in support of any application included in the appellant’s notice;

(d) in cases where the decision of the lower court was itself made on appeal, the first order, the reasons given by the judge who made it, and the appellant’s notice of appeal against that order;

(e) in a claim for judicial review or a statutory appeal, the original decision which was the subject of the application to the lower court;

(f) omitted;

(g) the appellant’s skeleton argument in support of the appeal;

(h) the approved transcript of the judgment.

(5) Where the appellant applies for permission to appeal, additional documents are required: see Section 4 of this Practice Direction.

(6) Provisions in relation to the skeleton argument are set out in paragraph 31." (CPR PD52C, para 3)

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Grounds of appeal v. skeleton argument

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- Grounds identify in what way the court below was wrong, skeleton gives the reasons why the court was wrong

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"(1) The grounds of appeal must identify as concisely as possible the respects in which the judgment of the court below is –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity,

as required by rule 52.21(3).

(2) The reasons why the decision under appeal is wrong or unjust must not be included in the grounds of appeal and must be confined to the skeleton argument." (CPR PD52C, para 5)

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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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Additional documents to file at same time (including skeleton argument)
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

- 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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- Explain how grounds interrelate

- 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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- Grounds should identify specific passage containing the error

- Grounds should identify important of principle or other compelling reason

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"An application to make a second appeal must identify in the grounds of appeal –

(1) the important point of principle or practice, or

(2) the compelling reason

which is said to justify the grant of permission to appeal." (CPR PD52C, para 5A)

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- Grounds should identify important of principle or other compelling reason

- Skeleton should be concise and not normally exceed 25 pages

 

"(1) Any skeleton argument must comply with the provisions of Section 5 of Practice Direction 52A (and in particular must be concise) and must in any event–

(a) not normally exceed 25 pages (excluding front sheets and back sheets);

(b) be printed on A4 paper in not less than 12 point font and 1.5 line spacing (including footnotes);

(c) be labelled as applicable (e.g. appellant’s PTA skeleton, appellant’s replacement skeleton, respondent’s supplementary skeleton), and be dated on its front sheet.

(2)

(a) Any skeleton argument that does not comply with the requirements of paragraph 31.1(a), (b) and (c)—

(i) will be returned to its author by the Civil Appeals Office; and

(ii) may not be re-filed unless and until it complies with those requirements; and

(b) if the skeleton argument is re-filed out of time—

(i) it must be served on all other parties to the appeal; but

(ii) the party re-filing it must make an application under Part 23 to obtain the permission of the court in advance of the hearing in order to rely on it.

(3) Where an appellant has filed a skeleton argument in support of an application for permission to appeal, the same skeleton argument may be relied upon in the appeal or the appellant may file an appeal skeleton argument (Timetable Section 5, Part 1).

(4) At the hearing the court may refuse to hear argument on a point not included in a skeleton argument filed within the prescribed time.

(5) The court may disallow the cost of preparing an appeal skeleton argument which does not comply with these requirements or was not filed within the prescribed time." (CPR PD52C, para 31)

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- Skeleton should be concise and not normally exceed 25 pages

Service on the respondent at the same time as filing​

 

"7.1 The Civil Appeals Office will not serve documents. Where service is required by the Rules or this Practice Direction, it must be effected by the parties.

7.1A The appellant’s skeleton argument in respect of an application for permission to appeal must be served on each respondent at the same time as service of the appellant’s notice,or at the same time as it is filed with the Court, if later.

7.2 The evidence in support of any application made in an appellant’s notice must be filed and served with the appellant’s notice." (CPR PD52C, para 7)

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Service on the respondent at the same time as filing​

- Respondent encouraged to submit 3 page objection within 14 days of service

 

"(a) If the appellant seeks permission to appeal a respondent is permitted, and is encouraged, within 14 days of service of the appellant’s notice or skeleton argument if later to file and serve upon the appellant and any other respondent a brief statement of any reasons why permission should be refused, in whole or in part.

(b) The statement should be not more than 3 pages long, and should be directed to the relevant threshold test for the grant of permission to appeal. The statement must also comply with paragraph 31(1)(b).

(c) The statement should identify issues to which the appeal should be limited, and any conditions to which the appeal should be subject (see Rule 52.6(2))." (CPR PD52C, para 19)

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- Respondent encouraged to submit 3 page objection within 14 days of service

- Normally no costs order if permission refused

 

"(1) There will normally be no order for the recovery of the costs of a respondent’s written statement. In most cases an application for permission to appeal will be determined without the need for the respondent to attend a hearing. In such circumstances an order for costs will not normally be made in favour of a respondent who voluntarily attends a hearing.

(2) If the court directs the respondent to file submissions or attend a hearing, it will normally award costs to the respondent if permission is refused." (CPR PD52C, para 20)

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- Normally no costs order if permission refused

Appellant must lodge PTA bundle within 14 days of appeal notice being sealed

 

"Within 14 days of  the appeal notice being sealed by the court, the appellant must lodge a core bundle (and, if necessary, a supplementary bundle) for the application for permission to appeal, prepared in accordance with paragraph 27." (CPR PD52C, para 14)

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TEST FOR PERMISSION​

TEST FOR PERMISSION​
Appellant must lodge PTA bundle within 14 days of appeal notice being sealed

- Point of law arising from a decision of the UT

 

"(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).
(4) Permission (or leave) may be given by—
(a) the Upper Tribunal, or
(b) the relevant appellate court,on an application by the party.
(5) An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal." (TCEA 2007, s.13)

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- Point of law arising from a decision of the UT

Important point of principle or some other compelling reason

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"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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"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal, or a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.

(2) The Court of Appeal will not give permission unless it considers that—

(a) the appeal would—

(i) have a real prospect of success; and

(ii) raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it." (CPR 52.7)

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Important point of principle or some other compelling reason

- Not every ground must raise an important point of principle/have a compelling reason

 

"[82] However, neither section 55 of the Access to Justice Act 1999 nor CPR 52.7 stipulates that every ground of appeal for which permission to appeal is given must (absent another compelling reason for this Court to hear it) raise an important point of principle or practice, and in my view that is not the law. The appeal as a whole must raise such a point, but, if one ground of appeal with a real prospect of success does so, permission to appeal can be given in respect of one or more other grounds of appeal which have real prospects of success but are of no wider significance. As Brooke LJ explained in Tanfern Ltd v Cameron-Macdonald [2000] EWCA Civ 3023[2000] 1 WLR 1311, at paragraph 42, the enactment of section 55 of the Access to Justice Act 1999 introduced a "major change to our appeal procedures" such that it would "no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is 'properly arguable' or 'because it has a real prospect of success'". If, though, "the appeal", overall, gives rise to an important point of principle or practice, permission to appeal can be granted for grounds which do not themselves do so but have "a real prospect of success" even in the case of a second appeal. It cannot therefore assist Mr Calzavara to say that the new ground of appeal does not raise an important point of principle or practice." (Zaman v. London Borough of Waltham Forest [2023] EWCA Civ 322, Newey, Asplin, Nicola Davies LJJJ)

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- Not every ground must raise an important point of principle/have a compelling reason

- Perhaps only relevant where grounds are bound up together

 

"[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." â€‹(Ingenious Games LLP v. HMRC [2022] EWCA Civ 1015, Nugee LJ)

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- Perhaps only relevant where grounds are bound up together

Starting point is prospects of success 

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“The starting point for this limb of the test is a consideration of the prospects of success; see PR (Sri Lanka) [2011] EWCA Civ 988.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §5).

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Starting point is prospects of success 

A reason to subject the appeal to a third judicial process

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"[26] This test has recently been considered by the Northern Ireland Court of Appeal in Martin v HMRC [2006] NICA 56 when Weir LJ endorsed the approach of Girvan LJ in McMahon t/a Irish Cottage Trading v Commissioners for Her Majesty’s Revenue and Customs GIR8657 when he said:

 “On an application for permission to appeal from the rejection by the Upper Tribunal … of an appeal the question is … whether there is a compelling reason why the issue in which the claimant has failed twice at the two tiers of the tribunal system, which are competent to determine matters of that kind, should be subjected to a third judicial process.”

 [27] Similarly, in Tanfern v Cameron-MacDonald and Anor [2000] 1 WLR 1311 the English Court of Appeal considered the identical provisions of section 55(1) of the Access to Justice Act 1991 when Brooke LJ said at paragraph 42:

 “… It will no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal is `properly arguable’ or because it has a `real prospect of success’ … the decision of the first appeal court is now to be given primacy unless the Court of Appeal itself considers that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for it to hear this second appeal.”

 [28] Further, in MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 at paragraph 43 Sir John Dyson said:

 “Courts should approach appeals from (expert tribunals) with an appropriate degree of caution … they and they alone are the judges of the facts … Their decision should be respected unless it is quite clear that they have misdirected themselves in law.  Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently”." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)

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A reason to subject the appeal to a third judicial process

- General point of principle and practice not previously considered​

 

"[29] This application raises the question whether a tribunal can make a finding on the basis of a “third man theory” that is, one which the judge suggests to the parties, but which has not been pleaded by the claimant.  Secondly it raises the question whether, in the event that a tribunal is entitled to raise “a third man theory”, what procedure it ought to follow in those circumstances.  The UT itself acknowledged this was an “unusual case” because the FTT found fraud on a factual basis not pleaded or advanced by HMRC.  We are satisfied this case raises important points of principle and practice which have not previously been adjudicated upon by the UT.  For this reason we are persuaded that the appeal raises important points of principle and practice." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)
 

- General point of principle and practice not previously considered​

- Wholly exceptional collapse of fair procedure

 

"[30]      We are further satisfied that the UT erred in its reconstruction of the procedural context. In particular it erred in finding that UMR did not dispute the case made by HMRC until 8 weeks before trial and erred in finding that UMR in some way had kept HMRC ‘in the dark’ about the correct supply chain. The UT therefore viewed the complaints of procedural unfairness through a prism which was fundamentally flawed. As a result, as appears from the judgment, it completely failed to address the question whether it was open to the FTT to raise a ‘third man theory’. Further its analysis of the exchanges between Judge Cannan and UMR’s counsel, to ascertain whether UMR were put on notice of the ‘third man theory’ and given a sufficient opportunity to meet it, was flawed as these exchanges were viewed through a prism of a procedural context which was fundamentally flawed.

[31]      As a consequence we are satisfied the appellant has suffered “a wholly exceptional collapse of fair procedure” as referred to by Lord Dyson in R (Cart) v UT [2012] 1 AC 613.  In addition this is a case where it is strongly arguable that there has been an error of law which has had truly drastic consequences. In particular UMR has sustained a loss of almost £500,000.  For these reasons we consider there are also compelling reasons why permission to appeal ought to be granted.  Accordingly we find that the high hurdle has been met and we grant permission to appeal." (Ulster Metal Refiners Ltd v. HMRC [2017] NICA 26, McBride J)

- Wholly exceptional collapse of fair procedure

- Procedural irregularity rendering first appeal unfair 

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“It is, however, recognised, even where the prospects of success are not high, a procedural irregularity which has rendered the first appeal unfair may constitute a compelling reason for granting permission. There was no such irregularity in the proceedings before the FTT. It is contended that the delay before the UT hearing produced a sufficiently fundamental irregularity. I do not consider that that delay qualifies unless its effect is to produce an unfair position or a detrimental change in the position of the person affected. Here there has been no suggestion that this is the case.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §6).

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- Procedural irregularity rendering first appeal unfair 

Second appeal criteria should be addressed in succinct and focused manner 

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“Ouseley J stated as long ago 2011 that when seeking permission to have a second appeal the grounds should address the second appeal criteria succinctly and in a focused manner; see [2011] EWHC 2763 (Admin). By nature, as Ouseley J said, an important point of principle or practice has to be capable of being expressed very shortly with supporting references as far as necessary to demonstrate that the issue is a correct formulation of an issue which does arise in practice in the particular case. As to the other compelling reason, that must be one with a high prospect of success in the case and it too should be capable of succinct summary.” (ML (Guinea) v. Secretary of State for the Home Department [2014] EWCA Civ 459, §4).
 

Second appeal criteria should be addressed in succinct and focused manner 

CPR applies once the Court of Appeal is seized of an appeal

 

“Once the High Court is seized of the appeal then in my judgment the provisions relating to the conduct of that appeal set out in CPR 52 and the Practice Direction apply.” (Woodpecker Ltd v. HMRC [2009] EWHC 3442 (Ch), §36 – in relation to the former procedure under which appeals from the General Commissioners were to the High Court by way of case stated).
 

CPR applies once the Court of Appeal is seized of an appeal

PROCEDURE ON APPEAL
 

PROCEDURE ON APPEAL

Focus of second appeal should be the first instance decision 

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“Formally [the intervening appellate judgment] is the judgment from which the appeal is made to this court. Nevertheless, the decision of the tribunal is the one in which an error of law must be found in order to give legal grounds for an appeal to any level…[A] detailed critique of a complex first level appeal judgment is not always the best way of persuading this court that the tribunal ran off (or, as the case may be, stayed on), the legal rails.” (Procter & Gamble UK v. HMRC [2009] STC 1990, §76, Mummery LJ).
 

Focus of second appeal should be the first instance decision 

Particular deference to specialist tribunals 

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"[4]...Further in this highly specialised area of the law the higher courts should give particular weight to the expertise which has been developed by the senior judges and members of the Upper Tribunal (Lands Chamber). That weight is not necessarily diminished by the fact that in this particular appeal, none of the parties before the court has seen it as in their own interests to defend the Upper Tribunal’s decision in its own terms. This of course is not to overlook the expertise in this field of Lindblom LJ, himself a former President of the Lands Chamber." (Cardtronics UK Ltd v. Skyes [2020] UKSC 21, Lord Carnwath)

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“This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. …” (MA (Somalia) v Secretary of State for the Home Department [2007] UKSC 49, §43 per Lord Dyson)

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“Particular deference is to be given to [specialist tribunals] for Parliament has entrusted them, with all their specialist experience to be the primary decision makes” (Procter & Gamble UK v. HMRC [2009] STC 1990, §11, Jacob LJ);

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“The FTT is a specialist tribunal. When considering its decision its expertise in the particular area requires to be borne in mind. As was observed in Procter & Gamble…” (NHS Greater Glasgow and Clyde Health Board v. HMRC [2017] UKUT 19 (TCC), §22).

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Less so in non-specialist areas of law (e.g. dishonesty)

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“In the present case, the Decision is not to my mind full or explicit enough to allow me to assess reliably how the FTT arrived at its decision on the question of dishonesty or quite what factual conclusions led it to that decision. It can perhaps also be observed that the FTT’s specialist expertise is likely to be of less significance when it is determining whether someone such as Mr Brookes was dishonest than in more technical areas.” (Brookes v. HMRC [2016] UKUT 214 (TCC), §22, Newey J).

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See also: Q1a: Errors of evaluation

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Particular deference to specialist tribunals 

Court of Appeal has all the powers of the lower court

 

"(1) Subsection (2) applies if the relevant appellate court, in deciding an appeal under section 13, finds that the making of the decision concerned involved the making of an error on a point of law.

(2) The relevant appellate court—

(a) may (but need not) set aside the decision of the Upper Tribunal, and

(b) if it does, must either—

(i) remit the case to the Upper Tribunal or, where the decision of the Upper Tribunal was on an appeal or reference from another tribunal or some other person, to the Upper Tribunal or that other tribunal or person, with directions for its reconsideration, or

(ii) re-make the decision.

(3) In acting under subsection (2)(b)(i), the relevant appellate court may also—

(a) direct that the persons who are chosen to reconsider the case are not to be the same as those who—

(i) where the case is remitted to the Upper Tribunal, made the decision of the Upper Tribunal that has been set aside, or

(ii) where the case is remitted to another tribunal or person, made the decision in respect of which the appeal or reference to the Upper Tribunal was made;

(b) give procedural directions in connection with the reconsideration of the case by the Upper Tribunal or other tribunal or person.

(4) In acting under subsection (2)(b)(ii), the relevant appellate court—

(a) may make any decision which the Upper Tribunal could make if the Upper Tribunal were re-making the decision or (as the case may be) which the other tribunal or person could make if that other tribunal or person were re-making the decision, and

(b) may make such findings of fact as it considers appropriate.

(5) Where—

(a) under subsection (2)(b)(i) the relevant appellate court remits a case to the Upper Tribunal, and

(b) the decision set aside under subsection (2)(a) was made by the Upper Tribunal on an appeal or reference from another tribunal or some other person,

the Upper Tribunal may (instead of reconsidering the case itself) remit the case to that other tribunal or person, with the directions given by the relevant appellate court for its reconsideration.
(6) In acting under subsection (5), the Upper Tribunal may also—

(a) direct that the persons who are chosen to reconsider the case are not to be the same as those who made the decision in respect of which the appeal or reference to the Upper Tribunal was made;

(b) give procedural directions in connection with the reconsideration of the case by the other tribunal or person.

(7) In this section “the relevant appellate court”, as respects an appeal under section 13, means the court specified as respects that appeal by the Upper Tribunal under section 13(11)." (TCEA 2007, s.14)

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"(1) In relation to an appeal the appeal court has all the powers of the lower court...

(2) The appeal court has power to—

(a) affirm, set aside or vary any order or judgment made or given by the lower court;

(b) refer any claim or issue for determination by the lower court;

(c) order a new trial or hearing;

(d) make orders for the payment of interest;

(e) make a costs order." (CPR 52.20)

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"[79] Turning to this case and the nature of our jurisdiction, this is a statutory appeal against the UT's decision. Having determined that the UT made an error of law, this court has power to set aside that decision. If it does so it must either remake the decision or remit the case: s.14(2)(b) Tribunal, Courts and Enforcement Act 2007. If a decision is re-made, this court has power to make any decision which the UT or FTT could make if it were re-making the decision: s.14(4)(a). Neither party suggested that we had any broader jurisdiction, for example to make a declaration of invalidity." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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Court of Appeal has all the powers of the lower court

Academic appeals

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Academic appeals

- Must be good reason in public interest, respondent is protected, and both sides of argument will be fully ventilated

 

"[28] In R v Secretary of State for the Home Department Ex p. Salem [1999] 1 AC 450, 456-7 Lord Slynn recognised the existence of a discretion to hear an appeal on an issue of public law involving a public authority, even if by the time the appeal is heard its outcome will not directly affect the rights and obligations of the parties inter se, but added:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

[29] The conditions that will generally need to be met before this court may exercise its discretion to entertain an academic appeal were summarised by Lord Neuberger MR in Hutcheson v Popdog Ltd (News Group Newspapers Ltd, third party) [2011] EWCA Civ 1580, [2012] 1 WLR 782 at [15]:

"(i) the court is satisfied that the appeal would raise a point of some general importance;

(ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced;

(iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

More recently, the principles have been considered by this court in R (L) v Devon County Council [2021] EWCA Civ 358, [2021] ELR 420 and R (on the application of SB) v Kensington and Chelsea RLBC [2023] EWCA Civ 924.

[30] HMRC's position is that the appeal raises a point of law that has implications for other cases, such that if it is not resolved now it is likely that they would seek to raise it in another case. Further, Mr Arrbab's legal team were content on his behalf for the appeal to proceed, subject to an undertaking as to costs which was provided following a brief adjournment for that purpose. We were also satisfied that both sides of the argument would be (and indeed were) fully ventilated. In the circumstances, we concluded that this is a case where the court should exercise its exceptional discretion to hear an academic appeal." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Must be good reason in public interest, respondent is protected, and both sides of argument will be fully ventilated

 © 2025 by Michael Firth KC, Gray's Inn Tax Chambers

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