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Case No: FC2 2000/6135/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(District Judge Ackroyd)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 12th May 2000
B e f o r e :
THE MASTER OF THE ROLLS
LORD JUSTICE PETER GIBSON
LORD JUSTICE BROOKE
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TANFERN
LIMITED
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Appellant/
Claimant
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and -
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GREGOR
CAMERON-MACDONALD
MONA BERIT CAMERON-MACDONALD
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Respondents/
Defendants
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Paul Emmerson (instructed by Marks Miller & Co for the Appellant)
The Respondents were not present or represented.
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE BROOKE:
1. This is an application made by the claimants in curious circumstances. They
brought an action against the defendants for unpaid rent in relation to a lease
of cafe-restaurant premises in Petersfield which the defendants vacated in
August 1996. The arrears of rent amounted to just over £20,000, together
with interest of about £7,000 up to 23rd February 2000, the date of the
hearing in the court below. The claim was originally started in the High Court
before being transferred to the county court. It was allocated to the
multi-track, and with the consent of the parties District Judge Ackroyd heard
the claim and entered judgment for the defendants. His jurisdiction to try a
multi-track claim was founded in paragraph 11.1(d) of Practice Direction 2B,
which supplements CPR Part 2. The district judge then gave permission to
appeal.
2. The claimants sought to lodge their appeal at the county court as an appeal
to the circuit judge. Their solicitors were advised, however, that the
designated civil judge had directed the court office at the Portsmouth County
Court that since this was a multi-track case heard by the district judge by
consent, the appeal must go to the Court of Appeal. They did not believe that
this was correct, and when they sought advice from a lawyer in the Civil
Appeals Office, she advised them to go back to the county court. They were
also told that if they had tried to lodge an appeal at the Court of Appeal
under these circumstances the papers would have been returned to them since the
Court of Appeal did not have jurisdiction to hear the appeal.
3. When they raised the matter of the appeal with the county court again, the
were told that the designated civil judge had commented on their further letter
in these terms:
"I still think that the appeal in this case goes direct to the Court of Appeal.
CCR 37 R6 deals with appeals from District Judges exercising their usual
jurisdiction, and as appears from the notes extends and also covers cases
within the concurrent trial jurisdiction of the County Court Judge and the
District Judge. But this case does not come into either category: it was a
multi-track case being heard by a District Judge with the agreement of the
parties, ie he was in effect sitting as in the capacity of a Circuit Judge, and
consequently an appeal from his decision cannot be entertained by another
Circuit Judge. That is a view shared by other Designated Judges."
4. They therefore returned to the Court of Appeal in search of a home for their
appeal. On this occasion the papers were referred to me, and I directed that
the matter should be listed before a two-judge court as soon as possible so
that there could be an authoritative judicial ruling as to which level of court
the appeal should lie. I also requested the preparation of a bench memorandum
by a lawyer in the Civil Appeals Office (to be shown to the claimants'
solicitors) which would set out dispassionately the arguments for and against
this court having jurisdiction to hear the appeal, since the matter, although
important, did not appear to warrant the instruction of an amicus. We
are very grateful for the assistance we received, both from this source, and
from Mr Emmerson, who appeared for the claimants before us. Although we
understand that the county court is now willing to list the matter as a
substantive appeal, it appeared to us to be very desirable to give an
authoritative ruling on the point.
5. This was a county court matter, and at the relevant time appeals from orders
of district judges in the county court were governed by CCR Order 37 Rule 6 (as
scheduled to the CPR). This provides that:
"(1) Any person affected by a judgment or final order of the District Judge
may, except where he has consented to the terms of the order, appeal from the
judgment or order to the Judge."
6. This rule was made under powers created by Section 77(1A) of the County
Courts Act 1984 which was inserted by Schedule 17 to the Courts and Legal
Services Act 1990. This sub-section enables rules of court to make
provision:
"for any appeal from the exercise by a district judge, assistant district judge
or deputy district judge of any power given to him by virtue of any enactment
to be to a judge of a county court."
7. The situation was different so far as high court proceedings were concerned.
RSC Order 58 Rule 2 (as scheduled to the CPR) provided for an appeal from
certain decisions of masters or district judges to go to the Court of Appeal.
These included a judgment, order or decision of a master given or made at trial
on the hearing or determination of any cause, matter, question or issue tried
before him (RSC O 58 r 2(1)(a)). RSC Order 58 Rule 3 was concerned with
appeals from District Judges in the High Court:
(1) An appeal shall lie from any judgment, order or decision of a District
Judge in any proceeding in any Division in the same circumstances and ...
subject to the same conditions as if the judgment, order or decision were given
or made by a Master or Registrar in those proceedings in that Division, and the
provisions of these rules with respect to appeals shall apply accordingly."
8. When the Civil Procedure Rules were introduced on 26th April 1999, the
Practice Direction which supplements RSC Order 58 Rule 2 provides in paragraph
1.1 that the provision was "not intended to alter the route of appeal from a
decision of a Master or District Judge". Paragraph 1.2 states that where,
before 26th April 1999, an appeal would have lain from a decision of a Master
or District Judge to a Judge under RSC Order 58 Rule 1, "it shall continue to
do so under the Civil Procedure Rules". Paragraph 1.3 of the Practice
Direction states that:
"RSC Order 58 r 2(1)(a) provides that an appeal lies to the Court of Appeal
from a decision of a Master or District Judge made `at trial ... on the hearing
or determination of any cause, matter, question or issue tried before him'.
This provision only applies where the parties have given their consent for the
Master of District Judge to try a case which has been allocated to the
multi-track under Part 26 (see para 4.1 of the Practice Direction on Allocation
of Cases to Level of Judiciary - Part 2B)."
9. If this action had been proceeding in a district registry of the high court,
the designated civil judge at Portsmouth would have been correct to decline
jurisdiction in these circumstances. These, however, were county court
proceedings, and there is nothing in the county court rules to indicate a
direct route of appeal from a district judge of the county court to the Court
of Appeal in circumstances like these.
10. So far as county court procedure is concerned, the judgment of this court
in Director-General of Fair Trading v Stuart [1991] 1 All ER 129
elucidates the position helpfully. In that case the registrar of the Salford
County Court (who would now be described as a district judge) granted an
injunction, to which the appellant raised no objection, restraining him from
conducting any unfair trade practices. The appellant appealed to the Court of
Appeal, relying on Section 42(2) of the Fair Trading Act 1973 which appeared to
prescribe that route of appeal.
11. In his judgment, with which the two other members of the court agreed, Lord
Donaldson of Lymington MR mentioned this submission, and said at p 130d-e:
"We have, of course, given due weight to that submission, but the error lies in
failing to appreciate that an appeal to the judge of the county court is in the
nature of an internal appeal, and it is only if the litigant wishes to appeal
outside the county court, an appeal from the county court to another court,
that s 42 comes into play and specifies that the court shall be the Court of
Appeal rather than a Divisional Court or the Restrictive Trade Practices Court
or any other court."
12. He added at p 130f-g:
"So, in summary, the appeal does lie to the judge under Ord 37 because that
internal form of appeal within the county court is not the type of appeal to
which s 42(2) of the Fair Trading Act 1973 applies. It applies to appeals from
the county court to another court and such an appeal can only be brought after
the internal remedies have been exhausted by an appeal from the registrar to
the judge. I would so declare."
13. In my judgment, this accurately reflects the status of the appellate regime
within the county courts up to 2nd May 2000, and there is nothing in any rule
or practice direction to suggest that the regime would be any different because
on a particular occasion a district judge was exercising the jurisdiction of a
circuit judge (see Practice Direction 2B para 11.1(d)). This may seem to be an
anomalous result, because if the district judge had been exercising similar
jurisdiction as a district judge of the high court the appeal would indeed have
lain to this court. It was always likely, however, that there would be some
anomalies during the interim period of 12 months between the introduction of a
modern, integrated set of civil procedure rules for first instance hearings and
the introduction of a similar set of procedures in respect of appeals. This
interim period is now at an end, and as will be seen from the second part of
this judgment, appeal from the final decision of a district judge exercising
jurisdiction in the multi-track in a case of this kind will in future lie
direct to this court, whether the action assigned to the multi-track is
proceeding in the county court or in the high court.
14. This is sufficient to dispose of the present matter, which must therefore
proceed as an appeal to a circuit judge in the county court, with the costs of
this application being costs in the appeal. On 2nd May 2000, however, a number
of major changes were made to the arrangements for appeals in civil courts, and
this judgment provides the opportunity to explain their effect. For the many
points of detail, courts and practitioners will of course have to consult the
instruments which introduced these changes. These are the Access to Justice
Act 1999 ("the 1999 Act"), the Civil Procedure Rules ("CPR") Part 52 (together
with CPR 27.12 - 27.13 and Section VIII of CPR Part 47), the Practice Direction
supplementing CPR Part 52 ("PD 52") and the Access to Justice Act 1999
(Destination of Appeals) Order 2000 ("DO"). I have incorporated the effect of
the Civil Procedure (Amendment No 2) Rules 2000 (SI 2000/940) and the latest
version of PD 52 into this judgment. The general rules relating to appeals in
CPR Part 52 are expressly made subject to any rule, enactment or practice
direction which sets out special provisions with regard to any particular
category of appeal (CPR 52.1(4)). In this judgment I am concerned only with
appeals in civil proceedings in private law matters. I am not concerned with
appeals in public law cases or with appeals in family proceedings.
Appeal to next level in judicial hierarchy: The general rule
15. As a general rule, appeal lies to the next level of judge in the court
hierarchy. Thus in the county court appeal lies from a district judge to a
circuit judge, and from a circuit judge to a high court judge; and in the high
court appeals lie from a master or district judge of the high court to a high
court judge and from a high court judge to the Court of Appeal. The court
hearing a first appeal is described in CPR Part 52 as "the appeal court" (CPR
52.1(3)(b)), and the court from whose decision an appeal is brought is
described as "the lower court" (CPR 52.1(3)(c)). A high court judge hearing an
appeal must have attained the status of a high court judge or a judge of the
Court of Appeal. Although retired judges of this status may hear such appeals,
they may not be heard by deputies of lesser status (PD 52, para 8.9(1)).
Appeal to next level in judicial hierarchy: The exceptions
16. The normal route of appeal will not be followed where a district judge or a
circuit judge in the county court, or a master or district judge of the high
court gives the final decision in a multi-track claim allocated by a court to
the multi-track under CPR 12.7, 14.8 or 26.5 (DO, Article 4(1)). This
exception does not apply to a decision made in a Part 8 claim (which is treated
as allocated to the multi-track pursuant to CPR 8.9(c)) or a decision in a
claim allocated to the multi-track under some other provision, where the normal
route of appeal will apply.
17. For this purpose a final decision is one that would finally determine the
entire proceedings, subject to any possible appeal or detailed assessment of
costs, whichever way the court decided the issues before it (DO, Article
1(2)(c)). A final decision includes the assessment of damages or any other
final decision where it is "made at the conclusion of part of a hearing or
trial which has been split up into parts and would, if made at the conclusion
of that hearing or trial, be a final decision" (DO, Article 1(3)); it does not
include a decision only on costs. This means that if a judge makes a final
decision on any aspect of a claim, such as limitation, or on part of a claim
which has been directed to be heard separately, this is a final decision within
the meaning of this provision. Mr Emmerson told us that there was concern in
some quarters that parts of a final decision might be subjected to one avenue
of appeal and other parts might have a different avenue of appeal, but the
language of DO Article 1(3) appears to preclude this possibility.
18. Orders striking out the proceedings or a statement of case, and orders
giving summary judgment under CPR Part 24 are not final decisions because they
are not decisions that would finally determine the entire proceedings whichever
way the court decided the issues before it.
19. The Court of Appeal is the appeal court for appeals against final
decisions of the type described above (DO, Article 4(a)). It is also the
appeal court where a final decision is taken in specialist proceedings to which
CPR 49(2) applies, whatever level of judge made this final decision (DO,
Article 4(b)). These proceedings are admiralty proceedings, arbitration
proceedings, commercial and mercantile actions, patents court business,
technology and construction court business, proceedings under the Companies
Acts 1985 and 1989 and contentious probate proceedings.
Permission to appeal: The general rule
20. As a general rule permission is required for an appeal (CPR 52.3(1)).
Permission may be granted either by the lower court at the hearing at which the
decision to be appealed was made, or by the appeal court (CPR 52.3(2)). If an
appeal court refuses permission without a hearing, a request may be made for
the reconsideration of that decision at an oral hearing (CPR 52.3(4)). If at
that oral hearing the appeal court refuses permission to appeal, then no
further right of appeal exists, and that is the end of the matter (Access to
Justice Act 1999 s 54(4); PD 52 para 4.8). One further new provision needs to
be noted: if an appellant is in receipt of services funded by the Legal
Services Commission (or legally aided) and permission to appeal has been
refused by the appeal court without a hearing, the appellant must send a copy
of the reasons the appeal court gave for refusing permission to the relevant
office of the Legal Services Commission as soon as it has been received from
the court (PD 52, para 4.17).
21. Permission to appeal will only be given where the court considers that an
appeal would have a real prospect of success or that there is some other
compelling reason why the appeal should be heard (CPR 52.3(6)). Lord Woolf MR
has explained that the use of the word "real" means that the prospect of
success must be realistic rather than fanciful (Swain v Hillman CAT 21
October 1999, para 10).
22. An order giving permission to appeal may limit the issues to be heard. It
may also be made subject to conditions (CPR 52.3(7)). If a court confines its
permission to some issues only, it should expressly refuse permission on any
remaining issues. Those other issues may then only be raised at the hearing of
the appeal with the appeal court's permission. That court and the respondent
should be informed of any intention to raise such an issue as soon as
practicable after notification of the court's order giving permission to appeal
(PD 52 para 4.18).
Permission to appeal: Exceptions
23. Permission to appeal will not be required where the appeal is against a
committal order, a refusal of habeas corpus or a secure accommodation order
made under Section 25 of the Children Act 1989 (CPR 52.3(1)(a)). In these
cases, where the liberty of the subject is in issue, appeal lies as of
right.
24. Permission to appeal is not required for an appeal from a district judge to
a circuit judge in relation to a decision made in the small claims track. (By
CPR 52.1(2)(a) CPR Part 52 does not at present apply to an appeal against an
order in the small claims track, although I understand that the position
relating to such appeals is currently under review). If a circuit judge
dismisses such an appeal without a hearing because no sufficient ground is
shown in the notice of appeal (see PD 27, para 8.6), an appeal against that
ruling lies to a high court judge (DO, Article 3(1): it is not a decision on an
appeal falling within Article 5). No permission is required for this further
appeal.
25. Similarly, permission to appeal is not required for an appeal from a
decision made (exceptionally) by a circuit judge on hearing a claim allocated
to the small claims track, for which a high court judge is the appeal court
(DO, Article 5 does not apply in these circumstances).
26. Permission to appeal is not required for an appeal from a decision made by
an authorised court officer in detailed assessment proceedings to a costs judge
or a district judge of the high court (CPR 47.21 as substituted by SI
2000/940). On the other hand, permission to appeal is required from a decision
made by a costs judge or a district judge of the high court in such proceedings
to a high court judge (DO, Article 2), because the exception mentioned in CPR
52.1(2)(b) applies only to appeals in detailed assessment proceedings against
the decision of an authorised court officer, and not to this higher level of
appeal in such proceedings. Where costs are summarily assessed by a judge as
part of a final decision in a multi-track claim, then the principles relating
to appeals against final decisions in multi-track claims will be applied (see
paragraphs 17 and 19 above).
First Appeals diverted from the normal route so as to be heard by the Court
of Appeal
27. If the normal route of a first appeal would be to a circuit judge or to a
high court judge, either the lower court or the appeal court may order the
appeal to be transferred to the Court of Appeal if they consider that it would
raise an important point of principle or practice or there is some other
compelling reason for the Court of Appeal to hear it (CPR 52.14(1)). This rule
refers to first appeals, because what is in question is whether the appeal in
question should be heard in the county court or the high court on the one hand
or in the Court of Appeal on the other. By DO Article 5, all second appeals
lie to the Court of Appeal and nowhere else, so that this question could not
arise in that context.
28. The Master of the Rolls also has the power to direct that an appeal which
would normally be heard by a circuit judge or a high court judge should be
heard instead by the Court of Appeal (1999 Act s 57(1)).
29. In such cases the Master of the Rolls and the Court of Appeal also have the
power to remit an appeal to the court in which the original appeal was or would
have been brought (CPR 52.14(2)).
The appellate approach: The general rule
30. As a general rule, every appeal will be limited to a review of the decision
of the lower court. This general rule will be applied unless a practice
direction makes different provision for a particular category of appeal, or the
court considers that in the circumstances of an individual appeal it would be
in the interests of justice to hold a re-hearing (CPR 52.11(1)). The appeal
court will only allow an appeal where the decision of the lower court was
wrong, or where it was unjust because of a serious procedural or other
irregularity in the proceedings in the lower court (CPR 52.11(3)).
31. This marks a significant change in practice, in relation to what used to be
called "interlocutory appeals" from district judges or masters. Under the old
practice, the appeal to a judge was a rehearing in the fullest sense of the
word, and the judge exercised his/her discretion afresh, while giving
appropriate weight to the way the lower court had exercised its discretion in
the matter. Under the new practice, the decision of the lower court will
attract much greater significance. The appeal court's duty is now limited to a
review of that decision, and it may only interfere in the quite limited
circumstances set out in CPR 52.11(3).
32. The first ground for interference speaks for itself. The epithet "wrong"
is to be applied to the substance of the decision made by the lower court. If
the appeal is against the exercise of a discretion by the lower court, the
decision of the House of Lords in G v G [1985] 1 WLR 647 warrants
attention. In that case Lord Fraser of Tullybelton said at p 652C:
"Certainly it would not be useful to inquire whether different shades of
meaning are intended to be conveyed by words such as "blatant error" used by
the President in the present case, and words such as "clearly wrong", "plainly
wrong", or simply "wrong" used by other judges in other cases. All these
various expressions were used in order to emphasise the point that the
appellate court should only interfere when they consider that the judge of the
first instance has not merely preferred an imperfect solution which is
different from an alternative imperfect solution which the Court of Appeal
might or would have adopted, but has exceeded the generous ambit within which a
reasonable disagreement is possible."
33. So far as the second ground for interference is concerned, it must be noted
that the appeal court only has power to interfere if the procedural or other
irregularity which it has detected in the proceedings in the lower court was a
serious one, and that this irregularity caused the decision of the lower court
to be an unjust decision.
The need for a suitable record of all judgments
34. This new emphasis on the importance of the decision made at first instance
gives added weight to the need for all such decisions to be recorded
accurately, so that the appeal court will be able to read a reliable version of
the judgment which it is concerned to review. If it is a short judgment, the
judge or master may of course dictate it to the parties at dictation speed, to
save the cost and delay involved in obtaining a transcript. CPR PD 39
(Miscellaneous provisions relating to hearings), paragraph 6.1, requires a
judgment to be recorded unless the judge directs otherwise, and if a judge or
master is anxious to spare a party of limited means the cost of obtaining an
approved transcript, he or she must take steps to ensure that by some other
means there is an incontrovertibly accurate record of the judgment.
35. There is a section of the new Practice Direction headed "Suitable record of
the judgment" (PD 52 paras 5.12 - 5.13) which brings conveniently into one
place a number of rules and other principles which were previously not always
easy to find. Because it is still the case that no reliable record is often
produced to an appeal court of a judgment by a master or district judge, and
sometimes of a judgment by a circuit judge, I am setting out in this judgment
the parts of that Practice Direction which apply to civil proceedings. Careful
attention must be paid in the future to these matters by all who sit or
practise in civil courts, because it will be likely to lead to injustice if an
appeal court is expected to review a decision when there is no reliable record
of what was said in the lower court. The Practice Direction reads, so far as
is material:
"5.12 Where the judgment to be appealed has been officially recorded by the
court, an approved transcript of that record should accompany the appellant's
notice. Photocopies will not be accepted for this purpose. However, where
there is no officially recorded judgment, the following documents will be
acceptable:
(1) Where the judgment was made in writing a copy of that judgment endorsed
with the judge's signature.
(2) When judgment was not officially recorded or made in writing a note of the
judgment (agreed between the appellant's and respondent's advocates) should be
submitted for approval to the judge whose decision is being appealed. If the
parties cannot agree on a single note of the judgment, both versions should be
provided to that judge with an explanatory letter. For the purpose of an
application for permission to appeal the note need not be approved by the
respondent or the lower court judge.
(3) When the appellant was unrepresented in the lower court it is the duty of
any advocate for the respondent to make his/her note of judgment promptly
available, free of charge to the appellant where there is no officially
recorded judgment or if the court so directs. Where the appellant was
represented in the lower court it is the duty of his/her own former advocate to
make his/her note available in these circumstances. The appellant should
submit the note of judgment to the appeal court.
...
5.13 An appellant may not be able to obtain an official transcript or other
suitable record of the lower court's decision within the time within which the
appellant's notice must be filed. In such cases the appellant's notice must
still be completed to the best of the appellant's ability on the basis of the
documentation available. However it may be amended subsequently with the
permission of the appeal court."
The appellate approach: The exceptions
36. The general rule is set out in CPR 52.11(1) which starts with the words
"every appeal will be limited to a review of the decision of the lower court
unless ...". I have already set out the exceptions contained in that rule, and
I have also mentioned the fact that CPR Part 52 does not apply to two
categories of appeal: appeals against orders under Part 27 (the small claims
track) and appeals against a decision of an authorised court officer in
detailed assessment proceedings.
37. So far as the former is concerned, the only permissible grounds of appeal
are that there was a serious irregularity affecting the proceedings or that the
court made a mistake of law (CPR 27.12). As to the latter, on an appeal
against a decision of an authorised court officer in detailed assessment
proceedings, the court will rehear the proceedings which gave rise to the
decision appealed against (CPR 47.23(a) as substituted by SI 2000/940). In
other words, in such a case the court hearing the appeal will exercise its
discretion afresh.
Powers of the appeal court: the general rule
38. The general rule set out in CPR Part 52 provides that every appeal court
has all the powers of the lower court (CPR 52.10(1)). It also has power to
affirm, set aside or vary any order or judgment made or given by the lower
court; to refer any claim or issue for determination by the lower court; to
order a new trial or hearing and to make a costs order (CPR 52.10(2)). It may
exercise its powers in relation to the whole or part of an order of the lower
court (CPR 52.10(4)). In other words every appeal court, whether a circuit
judge or a high court judge or the Court of Appeal, has been expressly given
the same powers in relation to appeals governed by CPR Part 52. The Court of
Appeal also has special powers in an appeal from a claim tried by a jury (CPR
52.10(3)).
Powers of the appeal court: the exceptions
39. The court hearing an appeal against a decision made in the small claims
track may make "any order it considers appropriate" if it is satisfied that
there was a serious irregularity affecting the proceedings or that the lower
court made a mistake of law. It also has the power to dismiss an appeal
without a hearing (CPR 27.12). I have already mentioned the fact that a review
of the appeal procedures in the small claims track is currently being
undertaken, so that courts and practitioners must be alert to any future change
to this rule.
40. In an appeal from an authorised court officer in detailed assessment
proceedings, the court hearing the appeal may "make any order and give such
directions as it considers appropriate" (CPR 47.23(b) as substituted by SI
2000/940).
Second Appeals
41. Parliament is responsible for controlling the expenditure of public
resources on the administration of justice (whether in relation to the direct
costs of the courts, including the cost of the judiciary, or in relation to
expenditure on what used to be called legal aid). It has now made it clear
that it is only in an exceptional case that a second appeal may be sanctioned.
Section 55(1) of the Access to Justice Act 1999 provides that:
"Where an appeal is made to a county court or the High Court in relation to any
matter, and on hearing the appeal the court makes a decision in relation to
that matter, no appeal may be made to the Court of Appeal from that decision
unless the Court of Appeal considers that -
(a) the appeal would raise an important point of principle or practice,
or
(b) there is some other compelling reason for the Court of Appeal to
hear it." (Emphasis added).
42. This reform introduces a major change to our appeal procedures. It will no
longer be possible to pursue a second appeal to the Court of Appeal merely
because the appeal is "properly arguable" or "because it has a real prospect of
success". The tougher rules introduced by a recent Court of Appeal Practice
Direction for "second tier appeals" related only to cases where a would-be
appellant had already lost twice in the courts below (see Practice Direction
(Court of Appeal) (Civil Division) [1999] 1 WLR 1027, para 2.19.1). The new
statutory provision is even tougher - the relevant point of principle or
practice must be an important one - and it has effect even if the would-be
appellant won in the lower court before losing in the appeal court. The
decision of the first appeal court is now to be given primacy unless the Court
of Appeal itself considers that the appeal would raise an important point of
principle or practice, or that there is some other compelling reason for it to
hear this second appeal.
43. All courts are familiar with the litigant, often an unrepresented litigant,
who will never take "no" for an answer, however unpromising his/her cause.
Under the new appeals regime, however, such litigants must appreciate that the
general rule will be that the decision of the appeal court on the first appeal
will be the final decision. If they wish to pursue the matter further, and to
incur the often quite heavy costs involved in paying the court fee and
preparing the appeal papers, the Court of Appeal may dismiss their application
quite shortly, saying that the appeal raises no important point of principle or
practice, and that there is no other compelling reason for the court to hear
the appeal.
44. The reason for this significant change of appellate policy can be found in
the 1997 Review of the Business of the Court of Appeal (Civil Division). This
Review reported that over the previous decade there had been a substantial
increase in the number of cases coming to the Court of Appeal. Its authors
believed that if there had to be an appeal in a civil case this should normally
be the end of the matter. This principle reflected the need for certainty,
reasonable expense and proportionality, and they said that there must be
special circumstances if there was to be more than one level of appeal.
Elsewhere in their report they had said that judges of the quality of Lords
Justices of Appeal were a scarce and valuable resource, and that it was
important that they were used effectively and only on work which was
appropriate to them (Review of the Court of Appeal (Civil Division), pp 10, 26
and 22).
45. It is clear that in the Access to Justice Act 1999 Parliament not only
accepted the report's analysis of the problems confronting the Court of Appeal
but that it also adopted even tougher measures than those recommended by the
Review to ensure that second appeals would in future become a rarity and that
the judges of this court would be freed to devote more of their time and energy
in hearing first appeals in more substantive matters which either their court
or a lower court had assessed as having a realistic prospect of success.
46. These new arrangements are likely to impose great burdens on the staff and
lawyers in the Court of Appeal, unless the status of the order being appealed
against is completely clear on its face. Every order made on appeal must
therefore record the name and status of the judge against whom the appeal was
brought. Orders relating to final decisions of a lower court must also make it
clear whether the order was made in the small claims track, the fast track or
the multi-track, and if it was made in the multi-track, it must state whether
it was made in a claim allocated to the multi-track or whether the Part 8
procedure was followed. If these steps are taken, it will be possible for the
Civil Appeals Office to ascertain without undue difficulty whether the Court of
Appeal possesses jurisdiction, and whether this is a first appeal or a second
appeal, simply by reading the order under challenge.
Transitional arrangements
47. The new rules (and the new destination arrangements) will apply in all
cases in which an appeal notice has been filed or an application for permission
to appeal has been made on or after 2nd May 2000. If an application for
permission to appeal has been made to the appeal court before 2nd May, and that
court gives permission to appeal (whether before or after 2nd May) the appeal
will be brought and will continue its progress under the old rules (see SI
2000/221, rule 39, as amended by SI 2000/940, rule 2, and DO, Article 6). Rule
2 of SI 2000/940, which came into effect on 2nd May 2000, reads:
"In the Civil Procedure (Amendment) Rules 2000, rule 39 (transitional
provisions) is amended to read -
`39. Where a person has filed a notice of appeal or applied for permission to
appeal before 2nd May 2000 -
(a) rule 19 of these Rules shall not apply to the appeal to which that notice
or application relates; and
b) the rules of court relating to appeals in force immediately before 2nd May
2000 shall apply to that appeal as if they had not been revoked'".
48. Mr Emmerson suggested to us that the language of these transitional
arrangements also appeared to embrace an application for permission to appeal
to the lower court which had either been granted before 2nd May, although no
notice of appeal had been filed at the appeal court before that date, or which
had been made before, but granted after, that date. Although the language of
these provisions might appear to allow for that interpretation of the rule, I
am satisfied that on its proper construction, when viewed in the context of a
rule which begins with a reference to the filing of the notice of appeal, the
words "applied for permission to appeal" must be taken to refer to an
application for permission made to the appeal court before 2nd May. In other
words, if the lower court granted permission, the notice of appeal must have
been filed at the appeal court before 2nd May for the old rules to continue to
apply to the appeal. If it did not grant permission, or refused permission,
before 2nd May, an application for permission must have been made to the appeal
court before 2nd May if the old rules are to be applied to the appeal.
49. In a judgment on security of costs delivered three days ago, on 9th May
2000, in AT Poeton (Gloucester) Plating Ltd v Horton (CAT 9th May 2000)
Morritt LJ was clearly not made aware of SI 2000/940. If he had been told
about this rule, he would no doubt have held that because Mr Horton had filed a
notice of appeal before 2nd May 2000 the provisions of RSC Order 59 applied to
that appeal as if they had not been revoked. This judgment should therefore
not be followed.
Conclusion
50. I have explained these changes, and their effect, in some detail because in
many ways they mark the most significant changes in the arrangements for
appeals in civil proceedings in this country for over 125 years. In future the
decision of the "first instance" judge in what used to be called an
"interlocutory appeal" will assume a much greater importance than it ever did
in the days when the "judge in chambers" conducted a complete rehearing, with
an entirely fresh discretion to exercise. And the decision of the "appeal
court", whether a circuit judge or a high court judge, is in most cases now
likely to be final. These changes will compel litigants and their advisers to
pay even greater attention to the need to prepare their cases with appropriate
care, because they may find it much more difficult to extricate themselves from
the consequences of an ill-prepared case before a judge at first instance in a
lower court.
LORD JUSTICE PETER GIBSON:
51. I agree.
THE MASTER OF THE ROLLS:
52. I also agree.
Order: As above costs to be costs in the appeal.
(Order does not form part of the approved judgment)
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