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K18.2. The test for granting leave to appeal
| 535. | The primary test for granting permission to appeal under the CPR is the "real prospect of success" test, ie, the same test as that used in several different contexts in the CPR. Thus CPR 52.3(6) provides :- |
| "Permission to appeal will only be given where - |
| (a) | the court considers that the appeal would have a real prospect of success; or | ||
| (b) | there is some other compelling reason why the appeal should be heard." |
| 536. | While this appears a useful test, it will be recalled, that in the summary judgment context, it has received a narrow interpretation by the English Court of Appeal so that a party's case should be considered to have real prospect of success if it was not "fanciful". (Note 471) Such a construction may not serve as a sufficient filter since the threshold may prove too low. Accordingly, if a "real prospect of success" test or something similar (eg, "a substantial prospect of success") is adopted, it ought to convey a standard requiring appeals to have more substance than merely being "not fanciful" to justify the grant of leave. |
| 537. | The reluctance to interfere with first instance case management decisions is stressed in the Practice Direction on Appeals which permits costs and procedural economy to be put into the balance when considering whether to grant leave :- |
| "Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether: | ||
| (1) | the issue is of sufficient significance to justify the costs of an appeal; | ||
| (2) | the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; | ||
| (3) | it would be more convenient to determine the issue at or after trial." (Note 472) |
| 538. | The CPR also make it clear that leave is more difficult to obtain in relation to a second appeal, eg, from the High Court judge to the Court of Appeal where the original decision was by the master. In such cases, the Court of Appeal will refuse permission unless it considers that the appeal would raise an important point of principle or practice; or there is some other compelling reason to hear it. (Note 473) |
| 539. | Readers are consulted on whether similar tests for the grant of leave to appeal should be adopted: Proposals 44 to 46. |
Notes
| 471 | Swain v Hillman, The Times, 4 November 1999; Court of Appeal (Civil Division) Transcript No 1732 of 1999. It has also been pointed out that Lord Hoffmann, on the other hand, plainly views the test as importing a significantly lower threshold than the strict tests presently applicable for the summary disposal of proceedings: Arthur J S Hall & Co v Simons [2000] 3 WLR 543 at 562-3. <back> |
| 472 | 52PD ยง4.5. <back> |
| 473 | CPR 52.13. <back> |
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