This Practice Note contains guidance to the provisions contained within CPR 52 and CPR PD 52B. These provisions apply to appeals to the County Court and the High Court only. They do not apply to appeals in detailed assessment proceedings against a decision of an authorised court officer, appeals to the civil division of the Court of Appeal or the Supreme Court, appeals where the appeal notice was filed or permission to appeal granted before 1 October 2012 (unless the court has ordered otherwise) or where permission is sought to appeal a decision refusing to grant an interim injunction under s 41 of the Policing and Crime Act 2009.
- general provisions on appeals are contained within CPR PD 52A. As such, this Practice Note should be read in conjunction with our other Practice Notes giving general guidance on appeals being conducted under CPR 52 and its accompanying practice directions
- in addition to all and any relevant CPR provisions, practitioners should also comply with any provisions in any court guide applicable to the division in which the case is proceeding
- ‘appeal court’ means the court to which the appeal is made and ‘appellant’ means a person who brings or seeks to bring an appeal. Therefore, where the ‘respondent’ brings or seeks to bring an appeal, he may be subject to the some of the same requirements as the appellant
- the CPR rules and practice directions referred to in this guidance are those effective from 1 October 2012. The pre-October provisions are in the attached pdf documents.
CPR 52 (old) PDF Format
CPR PD 52 (old) PDF Format
Case managing the appeal
The appeal court may make orders for the case management of an appeal (CPR PD 52B, para 5.1). Note: when making a case management order, the court may dispense with any requirements of or directions made in CPR PD 52B (CPR PD 52B, para 5.2).
Determination of applications within the appeal
The parties may wish to make applications in the appeal. The sorts of applications that a party may wish to make might include applications:
- for permission to appeal
- for an extension of time in which to file an appeal notice
- staying execution of the order under appeal. This could be particularly important where, eg, the order under appeal requires the payment of money. Note: a stay of the order under appeal is not automatic and will need to be applied for
- for permission to introduce and rely on new evidence (ie evidence which was not before the lower court). In this case you will need to explain to the appeal court why this evidence was not before the lower court
- for permission to adduce oral evidence. In this case, you will need to explain why you consider oral evidence to be necessary.
- for security for costs
- to set aside or vary orders made in the appeal without the respondent having been heard
- for an order dispensing with service
- that a transcript of the lower court should be obtained at public expense.
Any application to be made in the appeal should be made in the appellant’s or respondent’s notice (CPR PD 52B, para 4.3). Note: we are seeking clarification of whether this means that the parties will not be allowed to make any applications unless they are made within the appellant’s or respondent’s notice or whether later applications are not precluded but the applicant may face difficulties in making an application at a later stage if the appeal court considers that it could have been made in the party’s appeal notice.
Although there is no specific requirement that any evidence in support of any application made in the appellant’s notice must be filed and served with the appellant’s notice, practitioners may wish to adopt the Court of Appeal provisions at CPR PD 52C, para 7.2 and do so in any event.
You should consider at an early stage whether there are any applications you may wish to make in the appeal. By including these within the appellant’s notice, you not only reduce the risk that the court may consider that the application should have been made earlier but you should also avoid having to pay a separate issuing fee. However, you should also consider whether there may be some tactical or other reason for making the application ay a later stage.
Applications made in the appeal may be determined with or without a hearing. This also applies to any applications for permission to appeal made by the appellant or the respondent (CPR PD 52B, para 7.1).
Where an application for permission to appeal is refused without a hearing, the appellant (or respondent, where appropriate) can request that the application be reconsidered at a hearing (CPR PD 52B, para 7.2).
Where the court determines any other application without hearing the respondent, any party affected by the determination can apply to have the order set aside or varied. This is also the case for applications for permission to bring the appeal out of time (CPR PD 52B, para 7.3).
Where a party wishes to request a hearing to reconsider a permission application or wishes to apply to set aside or vary an order made without the respondent having been heard:
- that request or application must be made within seven days of the ‘requesting’ party being served with notification of the determination
- a copy of the request or application must be served on all other parties at the same time as it is made
- the court will give directions for the determination of the application
The appellant prepares the appeal bundle containing the documents relevant to the appeal. The appellant must serve this on the respondent within the time limits set out in CPR PD 52B, para 6.5. These time limits are by reference to the determination of any application for permission to appeal.
If the respondent considers that relevant documents are missing from the appeal bundle, he may prepare a supplemental appeal bundle containing copies of other relevant documents. This should be filed and served on all the parties as soon after service of the appeal bundle as practicable but, in any event, not less than seven days before the hearing (CPR PD 52B, para 8.2). Note: while the respondent should include any documents it considers would ‘assist the appeal court’, it should be careful to ensure that they only include documents which are ‘relevant to the appeal’ (CPR PD 52B, para 6.4(2)(g)).
When is a skeleton argument required?
Subject to any court order, parties to the appeal should only file and serve skeleton arguments where:
- •the complexity of the issues of fact or the law in the appeal justify them
- •they would assist the court in respects not readily apparent from the papers in the appeal
CPR PD 52A and CPR PD 52B are silent on the timing of filing and serving any such skeleton argument. We are seeking clarification of this, not least in the light of the appeal court’s powers to disallow the costs of preparing the skeleton argument where it is not filed within the prescribed time.
Dismissing applications or appeals by consent
Where an appellant no longer wishes to pursue an application or an appeal, he may request that the court dismiss it. Note: such a request, if granted, will usually be subject to an order that the appellant pays the costs of the application or appeal as appropriate (CPR PD 52A, para 6.1). If the appellant wishes to have the application or appeal dismissed without costs, his request must be accompanied by a letter signed by the respondent confirming his consent (CPR PD 52A, para 6.2).
Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted, the application or appeal will be dismissed (CPR PD 52A, para 6.3).
Note: where one of the parties is a child or protected party, any disposal of an application or the appeal requires the court’s approval. In such cases the appeal court should be sent:
- •a draft order signed by the parties’ solicitors
- •an opinion from the advocate acting on behalf of the child or protected party
- •any relevant documents prepared for the Court of Protection (in the case of a protected party)
Order of appeal court
Note: where the appeal is from the County Court to the High Court, the party entitled to the benefit of the order of the High Court must deposit the order or an office copy entry of it in the office of the relevant hearing centre of the County Court from whose decision the appeal as made (CPR 40.14B in force as from 6 April 2014).
*LexisPSL customers can find further guidance below:
- appealing to the UKSC, see: Appeals to the Supreme Court—overview
- appeals proceeding under the pre-October 2012 provisions, see Practice Notes: Permission to appeal—pre October 2012, Appellant’s notice—pre October 2012, Respondent’s notice—pre October 2012 , Specialist appeals—pre October 2012, Disposing of appeals and appeals by consent—pre October 2012, Appeals: reopening a final determination—pre October 2012, Appeals hearings—pre October 2012 and Conducting an appeal in the Court of Appeal—pre October 2012
- For information on adducing fresh evidence in an appeal see: Grounds for appealing and preliminary considerations — When will the court allow new evidence?
- For further guidance on when and how an application of obtaining a transcript of the lower court public expense should be made, see Grounds for appealing and preliminary considerations — Transcript of the lower court’s judgment
- For general information on skeleton arguments, including when they are required, their content and the costs provisions in relation to them, see Practice Note: Skeleton Arguments in an appeal—general provisions.