The definitive ruling on Permission to Appeal to the Lower Court
Tuesday, April 30, 2019
Once your case has been officially decided or handed down, knowing when and how to file an application for permission to appeal in the Lower Court was a complicated matter until recently.
Once your case has been officially decided or handed down, knowing when and how to file an application for permission to appeal in the Lower Court was a complicated matter until recently. In the Civil Procedure Rules (CPR), Rule 52.3 (2) simply states that:
An application for permission to appeal may be made -
(a) to the Lower Court at the hearing at which the decision to be appealed was made.
In addition the case of Sayers v Clarke Walker  EWCA Civ 645 states that:
“the date of the decision of the Lower Court which the appellant wishes to appeal for the purpose of CPR 52.12 (2) (b) is the date that the decision is formally announced in Court”
These definitions help us when a judgment is given and all parties are attending a hearing, as it is clear you have to apply for permission to appeal at that hearing. But what happens when a judgment is being handed down by a judge and all the parties are excused?
There was no definitive authority in either the CPR or case law as to what was required, only common practice. However the case of McDonald v Rose & Ors  EWCA Civ 4 has changed the game with a decision on 15 January 2019.
This case defines what solicitors should do when making an appeal to the Lower Court when judgment is being handed down without attendance of parties. Indeed, the judgment itself acknowledges in paragraph 21 that:
“We think there is value in our summarising in this judgment…the procedure that ought to be followed in consequence by parties wishing to seek permission to appeal from the Lower Court”
The judgment goes on to give the definitive guide on how to make an application for permission to appeal in the Lower Court. Paragraph 21 of the judgment explains step by step what parties should do when applying for permission to appeal in the Lower Court. These are summarised as follows:
- The date of the decision is the date of the hearing at which the decision is given, which may be ex tempore, ie at the time, or by the formal hand-down of a reserved (later) judgment.
- A party should normally apply at the decision hearing itself. In the case of a formal hand-down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing.
- If a party is not ready to apply it is necessary to ask for the hearing to be formally adjourned.
- If no permission application is made at the original decision hearing and there has been no adjournment, the Lower Court is no longer seized of the matter (i.e. no longer has any control over the matter) and cannot consider any retrospective application for permission to appeal.
- Whenever a party seeks an adjournment of the decision hearing as per point 3 above, they should also seek an extension of time for filing the appellant's notice, otherwise they risk running out of time before the permission decision is made.
These steps make it very clear that if a party wishes to make any sort of application to the Court, whether it be for permission to appeal or for an extension of time, then it must be made to the Court before any judgment is handed down. Should you fail to do so, you lose the chance to make such an application.
In conclusion, where a judgment is to be decided at a later date and without the parties in attendance, be well prepared to make an application for permission to appeal between the time when a draft judgment is received and when the judgment is formally handed down.
This publication is for general information only and is not intended to provide legal advice.