When a party wishes to appeal a decision, it will usually need permission to appeal before the appeal court can hear the appeal in accordance with the Civil Procedure Rules (“CPR”) Part 52.3. Despite the distinction between the two stages – permission to appeal and the appeal itself – courts often order that the appeal itself should immediately follow the application for permission so that effectively the parties need to prepare for the full appeal hearing even though permission may not be granted. There is a practical reason for this. Having two separate hearing can be both expensive and lead to delay. Equally, however, the parties end up having to prepare for a full appeal hearing even though permission may not be granted.
In this case, the appeal itself related to an order for disclosure and an injunction prohibiting the use of document in Canadian proceedings. The Judge ordered that the appeal be “adjourned into court with appeal to follow if permission granted” on the basis that it would not be a good use of time to argue about permission when an appeal itself would take less than half a day. On considering a separate application for security for costs, the Master of the Rolls held that this sort of practice is “undesirable”; each application for permission to appeal has to be disposed of on its merits. There may be good reasons for making such an order, but before making such an order a judge should think long and hard about it. If both the permission to appeal and the appeal hearing itself are ordered to take place at the same, the parties will have to brace themselves for a reinvestigation of the whole case. If they are acting in person, this can be especially stressful and if not, it can be especially expensive.
In the absence of special circumstances, the correct order in a case such as this, would be to either give permission to appeal (so that the parties know where they stand and there is an appeal on foot) or direct a brief hearing, at which the respondent can make oral submissions or send brief written submissions to decide whether permission to appeal should be granted.
This decision will be welcomed by some practitioners. After all, what is the point of having a rule that permission needs to be granted before the appeal is considered, if the rule is ignored? If this practice is adopted the courts will now consider the issue of permission to appeal separately rather than lumping it in with the appeal itself. Although this will add another stage in the process with potential costs consequences, ultimately it will ensure that the courts think more carefully about whether to grant permission or not.
Shlaimoun & Anor v Mining Technologies International Inc [2012] EWCA Civ 772 Court of Appeal