Second appealsAppeals:secondAppealsAppeals:secondAppealsAppeals:secondAppeals
18.52A decision which was, itself, made on appeal, can only be appealed to the Court of Appeal.
1COPR r17A(1)(b) and COPR r171B(3). Permission must be sought from the Court of Appeal for such an appeal, and the test (contained in the Civil Procedure Rules (CPR) 1998, not the COPR is stricter; the Court of Appeal will only grant permission where:
•the appeal would raise an important point of principle or practice; or
•there is some other compelling reason for the Court of Appeal to hear it.
2CPR r52.13(2). On a strict reading of the CPR, this provision does not apply to second appeals from the Court of Protection, as this court is not mentioned there, but it is suggested that it is overwhelmingly likely that the Court of Appeal would apply this test in the exercise of its inherent case management jurisdiction. 18.53This rule does
not apply if the appeal is against a decision of a tier 3 judge sitting in the Court of Protection as a first instance judge; in that case, permission can be sought either from that tier 3 judge or from the Court of Appeal.
3COPR r171B(2).18.54It is important to note that a decision from an appeal court refusing permission to appeal to that court from a lower court is not a ‘decision’ for these purposes: it is not possible to appeal such a refusal.
4TA v AA and another [2013] EWCA Civ 1661 (concerning refusal of permission to appeal by a judge of the High Court sitting as a judge of the Court of Protection; the same would also apply by analogy, it is suggested, with a refusal of permission to appeal by a circuit judge (now tier 2 judge)).