K18.1. Requiring leave to appeal

530.	The importance of having an appeals procedure is universally recognized. Human frailties and the vicissitudes of litigation contribute to an inevitable risk that justice may miscarry in particular cases. The appellate jurisdiction exists to correct such errors. Appellate courts also perform the essential function of setting precedents, resolving conflicting lower court decisions and developing the law.  (Note 465)
531.	Nonetheless, the appellate process, may be abused, particularly by a party seeking to delay the trial by launching appeals against interlocutory decisions of the CFI judge. This is a very real danger in Hong Kong where, unlike other comparable systems, interlocutory appeals may be lodged as of right and without any requirement for leave. (Note 466)  As mentioned above, the Hong Kong Court of Appeal has accorded primacy to the case management decisions of the first instance judge and repeatedly stated that it will not interfere with his exercise of discretion in the absence of error. (Note 467) However, this has not prevented interlocutory appeals from being brought, often at considerable expense. As Appendix B, Table 30 indicates, of the 13 taxed bills for interlocutory appeals to the Court of Appeal studied, the lowest amount of costs claimed was $127,600, the highest $801,500 and the median $189,500.
532.	A requirement of leave to appeal filters out unmeritorious appeals and protects parties from abusive use of appeals and unnecessary costs. (Note 468) Readers are accordingly consulted as to whether rules importing such a requirement in respect of interlocutory appeals, should be adopted: Proposal 42.
533.	Reforms elsewhere have gone further. In his Final Report, Lord Woolf recommended :-

		"...... that there should be a procedure involving the preliminary consideration of all appeals to the Court of Appeal, with the power to dispose of appeals with no merit summarily. The preliminary consideration could be by a single judge." (Note 469)

534.	As enacted, the CPR have taken the step of requiring permission to appeal in all cases, both in respect of interlocutory and final decisions, subject to a few exceptions.
534.1	CPR 52.3(1) lays down the requirement in the following terms :-

		"An appellant or respondent requires permission to appeal -

		(a)	where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against -

			(i)	a committal order;
			(ii)	a refusal to grant habeas corpus; or
			(iii)	a secure accommodation order made under section 25 of the Children Act 1989; or

		(b)	as provided by the relevant practice direction."

534.2	Where permission is given, it may be limited to specified issues or made subject to conditions. (Note 470)
534.3	Readers are asked whether rules adopting a leave requirement encompassing final as well as interlocutory appeals should be adopted: Proposal 43.

 

Notes

465	See WFR, p 153, §2.   <back>
466	High Court Ordinance, Cap 4, s 14(1): "Subject to subsection (3) an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter." Subsection (3) deals with certain specific cases where appeals are excluded.  <back>
467	Eg, Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48.  <back>
468	As pointed out in the White Book 52.3.1.  <back>
469	WFR, p 158 §24.  <back>
470	CPR 52.3(7).  <back>