Practice Direction (Court of Appeal, Civil Division: Leave to appeal and skeleton arguments)

JurisdictionEngland & Wales
Judgment Date23 November 1998
Date23 November 1998
CourtCourt of Appeal (Criminal Division)
[COURT OF APPEAL] PRACTICE DIRECTION (COURT OF APPEAL: LEAVE TO APPEAL AND SKELETON ARGUMENTS)

Court of Appeal (Civil Division) - Practice - Leave to appeal - Skeleton arguments - Procedure to be followed

Introduction

1. This practice direction sets out the practice and procedure for dealing with applications for leave to appeal to the Court of Appeal (Civil Division) and for providing skeleton arguments. It has been the subject of consultation with the members of the Court of Appeal, and sets out the collective views of the court.

2. The provisions of Practice Direction (Court of Appeal: Procedure) [1995] 1 W.L.R. 1191; [1995] 3 All E.R. 850 dated 26 July 1995 (“the 1995 practice direction”) must be read subject to this practice direction.

3. Paragraphs 2 and 3 of the 1995 practice direction apply (with any necessary modifications) to this practice direction.

4. In this practice direction: (a) unless otherwise specified, “the court of first instance” means the court or tribunal which made the decision which is challenged; and (b) references to the trial judge include, where appropriate, members of tribunals.

Part 1: Leave to appeal

5. Part 1 of this practice direction comes into force forthwith.

6. Many appeals require leave; that is, the permission of the court of first instance (the court which made the decision which is challenged) or of the Court of Appeal to bring an appeal.

7. The experience of the Court of Appeal is that many appeals and applications for leave to appeal are made which are quite hopeless. They demonstrate basic misconceptions as to the purpose of the civil appeal system and the different roles played by appellate courts and courts of first instance. Courts of first instance have a crucial role in determining applications for leave to appeal. The guidance in this practice direction is designed to ensure that this crucial role is exercised as constructively as possible, and to assist parties, their legal advisers, trial judges and the Court of Appeal to deal justly and effectively with applications for leave to appeal.

From which court should leave to appeal be sought?

8. The court which has just reached a decision is often in the best position to judge whether the case is or is not one where there should be an appeal. It should not leave the decision to the Court of Appeal. Courts of first instance can help to minimise the delay and expense which an appeal involves. Where the parties are present for delivery of the judgment, it should be routine for the judge below to ask whether either party wants leave to appeal and to deal with the matter then and there. However, if the court of first instance is in doubt whether an appeal would have a real prospect of success or involves a point of general principle, the safe course is to refuse leave to appeal. It is always open to the Court of Appeal to grant leave.

9. The advantages which flow from leave being considered by the court of first instance are lost if the application cannot be listed before the judge who made the decision which is the subject of the application. Where it is not possible for the application for leave to be listed before the same judge, or where undue delay would be caused by so listing it, the Court of Appeal will be sympathetic to applicants who claim that it was impracticable for them to make their applications to the court below and will not require such an application to be made.

The general test for leave

10. There is no limit on the number of appeals the Court of Appeal is prepared to hear. It is therefore not relevant to consider whether the Court of Appeal might prefer to select for itself which appeals it would like to hear. The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success. A fanciful prospect is insufficient. Leave may also be given in exceptional circumstances even though the case has no real prospect of success if there is an issue which, in the public interest, should be examined by the Court of Appeal. Examples are where a case raises questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration.

11. The approach will differ depending on the category and subject matter of the decision and the reason for seeking leave to appeal, as will be indicated below. However, if the issue to be raised on the appeal is of general importance that will be a factor in favour of granting leave. On the other hand, if the issues are not generally important and the costs of...

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63 cases
  • Algosaibi Bros v Saad Invs
    • Cayman Islands
    • Grand Court (Cayman Islands)
    • 22 February 2013
    ...(31) Powell v. Thompson, [1991] 1 N.Z.L.R. 579, referred to. (32) Practice Direction (C.A.: Leave to Appeal and Skeleton Arguments), [1999] 1 W.L.R. 2; [1999] 1 All E.R. 186, applied. (33) Shalson v. Russo, [2005] Ch. 281; [2005] 2 W.L.R. 1213; [2003] WTLR 1165; [2003] EWHC 1637 (Ch), refer......
  • Yorkshire Bank Plc v Hall
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 December 1999
    ...paragraphs 18 and 19 of Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments)TLRWLR (The Times November 23, 1998; ((1999) 1 WLR 2). Nevertheless, the power should be sparingly exercised, for the reasons stated in the practice direction. Where, as in the instant case, ......
  • Crehan v Courage Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 May 1999
    ...with the practice of this court as explained in para. 20 of Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [1999] 1 WLR 2 Mr Smith is required to demonstrate that his appeal would involve an important point of principle or practice or that for some other reaso......
  • M.a. (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
    • United Kingdom
    • Court of Session
    • 19 January 2011
    ...inevitable that this meaning should be assigned. For example Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [1999] 1 WLR 2 states: "The general test for leave 10. ...The general rule applied by the Court of Appeal, and thus the relevant basis for first instance......
  • Request a trial to view additional results

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