Ben Zurawel reviews forthcoming amendments to the rules governing civil appeals
Both civil and family practitioners should take note of the Civil Procedure (Amendment No. 3) Rules 2016 (SI 2016/788), which come into effect on Monday 3rd October 2016. Their major effect is to substitute an entire new Part 52 ("Appeals") - although the new rules only apply to appellant's notices issued after 3rd October 2016. Amendments to the Practice Directions to Part 52 come into effect the same day.
In common with many recent changes, at the heart of the amendments is the drive to save money and increase efficiency. In particular, the amendments seek to reduce the workload of the Court of Appeal (Civil Division). Cuts to Legal Aid - in particular in family law - have led to a dramatic increase in unmeritorious appeals brought by litigants in person, causing an unsustainable workload and unacceptable backlogs.
Perhaps most interesting is what has not changed: an increase to the threshold test for permission, widely consulted upon, which would have seen appellants needing to show a "substantial" rather than a "real" prospect of success has been shelved - for now (see the extensive case law on what constitutes a real prospect of success - it must be more than fanciful, but need not be more likely than not). Watch this space.
The destinations of appeals, set out in Table 1 of PD52A, have been greatly rationalised. In proceedings other than family proceedings, insolvency proceedings or proceedings under the Companies Acts, District Judges will now always appeal to Circuit Judges and Circuit Judges to High Court Judges. Previously, first appeals against final decisions in multi-track cases lay directly to the Court of Appeal, irrespective of the level of judge who had taken the decision.
The new Pt. 52 replicates many of the old rules but with a new structure (7 sections instead of 4), some re-ordering and various linguistic and grammatical tweaks. The clumsily drafted old rule 52.3 (“Permission”) has been broken up and can now be found in new rules 52.3, 52.4, 52.5 and 52.6.
Rule 52.5 contains the two major changes to the practice of the Court of Appeal. The automatic right to renew applications for permission to appeal to the Court of Appeal at oral hearings has gone. PD52.15(1) is amended to provide that oral hearings will be held only if 'the judge considering the application directs that the application be determined at an oral hearing in accordance with rule 52.5(2)' which in turn provides that the judge must direct an oral hearing 'if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing.'
What redress does an appellant have if the lower court refuses permission and then the single judge also refuses permission, considering that the decision can be made fairly without oral hearing? None - that can now be the end of the road.
For appeals in the County Court and the High Court, new rule 52.4(1) makes the default position that 'the appeal court will determine the application on paper without an oral hearing' although that is subject to the right of a person refused permission without a hearing to request the decision to be reconsidered at an oral hearing.
The second major change aimed at limiting access to the Court of Appeal is the addition to the 'important point of principle or practice' test for second appeals of a further limb: such appeals must now also (52.7(2)(a) 'have a real prospect of success'. This may merely make explicit what has previously been implied, but is indicative of a clear intention that the net effect of these amendments is a reduction in the number of cases reaching the Court of Appeal.
As the editors of the Civil Procedure News (Issue 8/2016) note, the old Part 52 was poorly and illogically laid out. With an increasing number of litigants-in-person, it is becoming all the more important that the CPR be simple and straightforward. The rationalisation of Part 52 is a step in this direction. Many civil practitioners will doubtless wonder, as the editors of the Civil Procedure News do, how long it will be until the increasingly labyrinthine Part 36 receives similar treatment!
The updated Rules and Practice Directions can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil