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Section 22: Leave to appeal
Proposal 42
A requirement that interlocutory appeals to the Court of Appeal be brought only with leave
of the Court of First Instance or the Court of Appeal should be introduced.
An appeal should lie as of right from the master to the judge (whether from a decision on the
papers or after a contested hearing) but with the introduction of fresh evidence for the
purposes of the appeal precluded save in exceptional circumstances.
Interlocutory appeals from the CFI judge to the Court of Appeal should be subject to a
condition of leave to appeal save in relation to (i) defined classes of interlocutory decisions
which are decisive of substantive rights; and (ii) certain other defined categories of decisions,
including those concerning committal, habeas corpus and judicial review.
Where leave to appeal is required, the court should have power to limit the grant of such
leave to particular issues and to grant leave subject to conditions designed to ensure the fair
and efficient disposal of the appeal.
A procedure designed to avoid separate oral hearings of applications for leave to appeal
should be adopted, generally requiring any application before the CFI judge to be made at
the original hearing and, if refused, for any further application for leave to be made in
writing and usually dealt with by the Court of Appeal comprising two Justices of Appeal, on
the papers and without an oral hearing. Where considered necessary, the Court of Appeal
should be able to direct that there be an oral hearing before the original two judges or before
a panel of three judges.
A refusal of leave to appeal by the Court of Appeal in relation to such purely interlocutory
questions should be final. Where, however, the Court of Appeal hears the appeal, it should
be open to the parties to apply for leave to appeal to the Court of Final Appeal in accordance
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