Permission to appealRe [2008] 1 FLR 198Re [2007] Ch 150Times 29 JanuaryTimes 15 OctoberTimes 25 Februarysub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688Re [2009] 2 FLR 1370sub nom Secretary of State for the Home Department v Makke [2005] EWCA Civ 176, (2005) Times 5 Aprilsub nom Secretary of State for the Home Department v Makke [2005] EWCA Civ 176, (2005) Times 5 AprilTimes 19 FebruaryTimes 14 December, [2005] Imm AR 84Times 25 JulyRe [2009] 2 FLR 632Re [2010] 2 FLR 1605sub nom Secretary of State for the Home Department v Makke [2005] EWCA Civ 176, (2005) Times 5 AprilTimes 19 AugustRe [2009] 2 FLR 46Re [1892] 1 QB 609Times 1 MarchRe [1892] 1 QB 609Times 20 MarchTimes 30 JuneTimes 3 February
4.137Permission to appeal is one possible element of initiating proceedings; it justifies a separate section.
4.138An application for permission is a separate proceeding.
1Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 and 736. This is relevant to the scope of a decision to strike out or bar participation in proceedings.
2SL v Secretary of State for Work and Pensions and KL-D [2014] UKUT 0128 (AAC) at [21]–[22]. It may also be of relevance for transitional provisions governing the transfer of proceedings to the First-tier Tribunal or Upper Tribunal.
Terminology
4.139‘Permission’ and ‘leave’ are synonymous. The former is the more modern term, although the latter is still used in Northern Ireland. This book uses permission, which is frequently used in practice even when a statute refers to leave, unless it is historically necessary to refer to leave.
4.140The legislation will distinguish between someone who applies for permission to appeal and someone to whom permission has been given. They may be distinguished by title: an ‘applicant’ may describe someone who applies for permission; an ‘appellant’ may describe an applicant to whom permission has been given. The distinction is relevant under UTR, but without using distinguishing terminology. Under those Rules, ‘applicant’ is reserved for someone who initiates judicial review proceedings. ‘Appellant’ is used to designate both someone who applies for permission to appeal and someone to whom permission has been given. However, in this section, ‘applicant’ is used to refer to a person who has applied for permission to appeal.
4.141Any party other than the person applying for permission is called the respondent.
4.142The legislation may distinguish between an application that is unsuccessful on procedural grounds and an application that is unsuccessful on the merits. This distinction may be reflected in terminology. An application may be ‘rejected’ for procedural reasons, such as lateness, and ‘refused’ on the substantive merits. Under UTR, rejection is not used and the process is described as not admitting the appeal.
Admitting an application and extending time
4.143It may be necessary to consider whether to admit an application that was not admitted by the First-tier Tribunal or to extend the time for making the application.
4.144An application may only be admitted if it is in the interests of justice to do so. UTR r21(7) provides:
3See also Lands Rules r21(6).(7)If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant’s application for permission to appeal because the application for permission or for a written statement of reasons was not made in time–
(a)the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and
(b)the Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do so.
4.145Extending time depends on the tribunal’s discretion under UTR r5(3)(a). This is discussed in chapter 7.
4.146If permission is given out of time without time being extended, the grant is of no effect.
4Kennedy LJ in Lloyd Jones v T Mobile (United Kingdom) Ltd [2003] EWCA Civ 1162 at [3].4.147It is permissible to shorten time for applying for permission to appeal to a higher tribunal or court and this may be desirable in order to bring finality to proceedings.
5Thorpe LJ in Re P (Residence: Appeal) [2008] 1 FLR 198 at [7].Applying too soon
4.148A party may be aware of a decision before it is actually made or promulgated and apply for permission to appeal immediately. In
R(U) 3/85, a Tribunal of Commissioners decided that an appeal lodged in these circumstances ‘… was a continuing one to take effect as and when the relevant concrete decision was actually made’.
6R(U) 3/85 at [8].4.149The same reasoning applies to applications for permission. However, it may be safer for a party to apply again when the decision has been made or promulgated rather than assume that the tribunal will take this approach.
The need for permission to appeal
4.150If an appeal does not lie as of right, permission is required before the case can proceed. If permission is required, it is a condition precedent to jurisdiction.
7Re Taylor (a bankrupt) [2007] Ch 150 at [56]. The grant or refusal of permission will always be discretionary.
4.151The higher the case moves up the judicial hierarchy, the more likely it is that permission will be required. However, it is not essential in principle.
4.152There may be no limit on the power to grant permission. It may be limited to specific issues, typically issues of law rather than fact. And it may be limited to specific circumstances; this is likely in the case of second appeals, which are discussed below.
4.153If an appeal lies only on a point of law, permission will generally be required. Otherwise, it can be difficult to exclude appeals that relate only to issues of fact. However, it is possible to have an appeal on limited grounds without the need for permission.
8As in Banga (t/a Banga Travel) v Secretary of State for the Department of Transport [2008] EWCA Civ 188; (2008) Times 29 January.Under TCEA
4.154Permission is always required for an appeal to or from the Upper Tribunal (ss11(3) and 13(3)). It is discretionary.
9Short v Birmingham City Council [2005] HLR 6 at [26].The function of permission
10See the 1997 Bowman Committee Report on the Review of the Court of Appeal (Civil Division), chapter 3 paras 4–20.4.155The function of permission is to deter or filter out cases that are frivolous, unnecessary or unmeritorious,
11Lord Halsbury LC in Lane v Esdaile [1891] AC 210 at 212; Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 at 14. by scrutinising the grounds of dissatisfaction to see if they have sufficient merit.
12Hale LJ in R v Secretary of State for the Home Department ex p Saleem [2001] 1 WLR 443 at 459. It also operates as a protection for applicants who make ill-informed attempts at bringing an appeal. As Sedley LJ explained in the Court of Appeal in
Such v Secretary of State for the Home Department:
13[2006] EWCA Civ 711 at [10].… the preliminary application, which this is, is a valuable protection for a litigant against the risk of getting in too deep; getting, in other words, into this court without a real prospect of success on a point of law and finding herself liable for a very large sum of costs for the other side’s representation.
14See also the comments of Sullivan J in R (Davies) v Secretary of State for the Communities and Local Government (2008) Times 15 October.Finally, the permission filter allows the appellate court to use its time efficiently by devoting it to the most meritorious cases.
4.156The Bowman Committee considered that the permission stage provided an opportunity for case management if permission were granted.
15Report on the Review of the Court of Appeal (Civil Division), chapter 3 para 7. However, tribunals have power to give directions whether or not a case requires permission.
16See chapter 7.Who may apply?
Definition
4.157The persons who have the right of appeal are always limited. The personal scope of the right may be defined in a number of ways.
4.158The person who was the subject of a decision by a decision-maker or a party to the proceedings before a tribunal will almost certainly have the benefit of any right of appeal that exists.
4.159The personal scope of the right may also be defined by the effect that the decision has on a person or by the person’s attitude to the decision.
4.160An example of the effect of a decision is where an appeal lies at the instance of a ‘person aggrieved’. This is interpreted broadly. In
Arsenal Football Club Ltd v Ende,17[1977] QB 100. Lord Denning MR said:
In former times those words were construed in a very restricted sense. But in modern times they have been extended to include any one who has a genuine grievance, relevant to the matter in hand, which is worthy of serious consideration. The only limitation that I would put upon them is that the complaint must not be frivolous or vexatious or irrelevant.
18[1977] QB 100 at 116.4.161An example of the person’s attitude to a decision is where an appeal lies at the instance of a party who is ‘dissatisfied with’ a decision.
19For example: Tribunals and Inquiries Act 1992 s11(1). In
Esso Petroleum Co Ltd v Ministry of Labour,20[1969] 1 QB 98. the Court of Appeal decided that this did not allow an appeal in respect of an issue that was not covered by a decision.
21[1969] 1 QB 98 per Lord Denning MR at 109–110. Nowadays, this omission might be considered as an error of law, provided that it was within the scope of the decision before the First-tier Tribunal.
4.162Language such as ‘dissatisfied with’ is indicative that the decision must have been notified to the persons affected by it. In
R v Secretary of State for the Home Department ex p Saleem,
22[2000] 4 All ER 814. Mummery LJ said of this wording:
That expression is a clear and powerful indication that Parliament contemplated that the aggrieved party would, in the ordinary course of events, actually receive notification of the determination of his appeal by the adjudicator.
23[2000] 4 All ER 814 at 823.4.163The personal scope may also be defined by reference to a person’s status
24For example: a parent of a child may appeal under Education Act 1996 ss325 and 326. or by the interest that a person has in the case.
4.164The right of appeal may be conferred personally or on behalf of someone else.
25For example: Social Security and Child Support (Decisions and Appeals) Regulations 1999 reg 25. The fact that someone has the right to appeal does not mean that that person will necessarily become a party to the proceedings on the appeal, as it may be conferred not in their own capacity, but only as representative of someone who is unable to act. If the latter, the issue arises whether the right is conferred in that person’s own right or only as representative of the other person.
Under TCEA
26For tribunals that are outside TCEA structure, a right of appeal lies on a point of law under the Tribunals and Inquiries Act 1992 s11.4.165The TCEA does not deal with the right of appeal on entry into the system. Usually, this appeal will lie to the First-tier Tribunal, but in some cases the appeal will lie to the Upper Tribunal. This right of appeal is left to the creating legislation.
4.166The TCEA deals with the right of appeal from the First-tier Tribunal to the Upper Tribunal and from the Upper Tribunal to the Court of Appeal. The basic rule is that only a ‘party to a case’ may appeal (ss11(2) and 13(2)).
27This basic rule does not apply under the legislation governing appeals to the Employment Appeal Tribunal. Under that legislation, persons other than parties to the decision of the employment tribunal have a right of appeal, subject to control for abuse of process: Martineau v Ministry of Justice [2015] ICR 1122. However, the Lord Chancellor may by order make provision for a person to be treated as being, or not being, a party for this purpose (ss11(8) and 13(14)).
28Presumably, these provisions displace the Court of Appeal’s power to give permission to someone who had not been a party to the case below, as recognised in R (George Wimpey UK Ltd) v Tewkesbury Borough Council (2008) Times 25 February. No order has been made under these provisions. In addition, other primary legislation may confer a right of appeal on someone who was not a party to the case.
29For example: in a housing benefit or council tax benefit case the Child Support, Pensions and Social Security Act 2000 Sch 7 para 8(2)(a) confers a right of appeal to Upper Tribunal on the Secretary of State and anyone affected by the decision-maker’s decision; and in a child support case the Child Support Act 1991 s24(1) confers a right of appeal on the Secretary of State.Appeals by a successful party
4.167A successful party may not appeal in order to obtain confirmation or clarification of a favourable decision from a higher court.
30R(I) 68/53 at [5].4.168Nor, as an appeal only lies against a decision or order, may a successful party appeal in order to challenge particular findings or aspects of the reasoning.
31Lake v Lake [1955] P 336. This is subject to the possibility that the legislation may extend the right of appeal to something other than the decision or order, as in
Jones v Attorney-General.
32[1974] Ch 148 at 161. See below. It is also subject to the qualification that the tribunal’s reasons, which provide the logical underpinning of its decision, may indicate an error of law.
33Secretary of State for Work and Pensions v Robertson [2015] CSIH 82 at [44]–[45].4.169However, there are circumstances in which a successful party may appeal, provided that the statutory requirement of a point of law arising from a decision can be identified.
34Secretary of State for Work and Pensions v Robertson [2015] CSIH 82 at [42] and [45].4.170First, a public body which has been successful before a First-tier Tribunal may appeal the favourable decision if it would be in the interests of the claimant to do so.
35R(U) 6/88 at [5]–[6].4.171Second, it may be possible to separate the tribunal’s decision into decisions on separate issues to allow a successful party (exceptionally) to challenge one aspect of the tribunal’s reasoning. In
Secretary of State for Work and Pensions v Morina,
36[2007] 1 WLR 3033. the Court of Appeal allowed the Secretary of State to appeal against the decision of a Commissioner. The Commissioner had decided that he had jurisdiction over a particular class of decision, but had then dismissed the claimant’s appeal. The Commissioner’s decision could be analysed into two: (i) a decision that he had jurisdiction; and (ii) that the appeal failed on the merits. This allowed the Secretary of State to challenge decision (i). Maurice Kay LJ emphasised that the case raised ‘a fundamental legal issue of jurisdiction’ and that the approach would not be taken in the case of an attempt to challenge ‘an immaterial finding of no general significance’.
37[2007] 1 WLR 3033 at [10].4.172Third, a public body (and perhaps others affected) may be able to appeal in the public interest against a favourable decision if it contains unnecessary rulings that create uncertainty and are damaging to the body’s functioning.
38Office of Communications v Floe Telecom Ltd (in liquidation) [2009] EWCA Civ 47; (2009) Times 23 February.4.173In
Bell v Information Commissioner and the Ministry of Justice,
39[2012] UKUT 433 (AAC). the Upper Tribunal decided that these were specific examples of a more general principle that a party who has an interest in doing so may pursue an appeal against a favourable decision. In that case, Mr Bell had obtained a favourable decision from the Commissioner, but the Ministry had exercised its right of appeal. The judge decided that Mr Bell had an interest in appealing in order to preserve the decision in his favour.
40[2012] UKUT 433 (AAC) at [20]. He also said that the First-tier Tribunal was under a duty to ensure that people in Mr Bell’s position at least were properly informed of their options and might have to do more.
41[2012] UKUT 433 (AAC) at [21].Against what decisions?
4.174Unless the legislation provides otherwise, an appeal must be against a decision. Even when an appeal lies on an issue or question of law, and not on an error of law, it must still be an appeal against a decision. This is why, as a general principle, a successful party cannot bring an appeal; the party may have an issue or question on which to appeal, but there is nothing to appeal against.
4.175The legislation will specify the decisions that are subject to appeal. It may simply refer to ‘decision’. In that case, it will be a matter of interpretation whether particular types of decision fall within that description. For example: in
Secretary of State for Work and Pensions v Morina,
42[2007] 1 WLR 3033. disposals of purported appeals that were outside the absolute time limit for appealing or were otherwise outside the tribunal’s jurisdiction were not decisions for the purposes of an appeal to a Commissioner. In
CHR/3855/2005, a Tribunal of Commissioners decided that this decision applied also to discretionary decisions to extend the time for appealing.
4.176And it is a matter of statutory interpretation whether particular matters are covered by the decision that is appealable. For example: in
Jones v Attorney-General,43[1974] Ch 148 at 161. an appeal against an order of the Charity Commissioners was held to include an appeal against a report that was an essential step in the statutory process of making the order.
4.177It is a matter of analysis whether the decision made falls within the statutory description. For example: in
R(H) 3/05, a Tribunal of Commissioners interpreted a particular form of decision so as to bring it within the statutory description, thereby avoiding a violation of article 6. And in
Secretary of State for Work and Pensions v Morina,44[2007] 1 WLR 3033. the Court of Appeal analysed a Commissioner’s decision as including a decision on jurisdiction in order to allow the successful party to appeal in respect of that issue.
Under TCEA – excluded decisions
4.178Under TCEA, an appeal lies against all decisions, except excluded decisions.
4.179An appeal lies to the Upper Tribunal against decisions of the First-tier Tribunal (s11(1)) and to the Court of Appeal against decisions of the Upper Tribunal (s13(1)), except excluded decisions. Section 11(5) provides:
(5)For the purposes of subsection (1), an ‘excluded decision’ is–
(a)any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews);
(b)any decision of the First-tier Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (appeals against national security certificate);
(c)any decision of the First-tier Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (appeals against national security certificate);
(d)a decision of the First-tier Tribunal under section 9–
(i)to review, or not to review, an earlier decision of the tribunal;
(ii)to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal;
(iii)to set aside an earlier decision of the tribunal;
45A decision refusing to set aside another decision is not an excluded decision. However, that other decision is subject to the right of appeal, so an appeal against the refusal to set aside would be of no value. or
(iv)to refer, or not to refer, a matter to the Upper Tribunal;
(e)a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun); or
(f)any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.
4.180Section 11(5)(f) is subject to section 11(6)–(7). Those decisions are prescribed by the Appeals (Excluded Decisions) Order 2009:
Excluded decisions
(2)For the purposes of section 11(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal are excluded decisions–
(a)a decision under section 103 of the Immigration and Asylum Act 1999 (appeals); and
(b)a decision under paragraphs 22, 23, 24, 29, 30, 31, 32 and 33 of Schedule 2 to the Immigration Act 1971.
(3)For the purposes of sections 11(1) and 13(1) of the Tribunals, Courts and Enforcement Act 2007, the following decisions of the First-tier Tribunal or the Upper Tribunal are excluded decisions–
(a)any decision under section 20(7), (8B) or (8G)(b) (power to call for documents of taxpayer and others), 20B(1B) or (6) (restrictions on powers under sections 20 and 20A) or 20BB(2)(a) (falsification etc. of documents) of the Taxes Management Act 1970;
(b)any decision under section 35A(2) (variation of undertakings), 79A(2) (variation of undertakings) or 219(1A) (power to require information) of the Inheritance Tax Act 1984;
(c)any decision under section 152(5) (notification of taxable amount of certain benefits) or 215(7) (advance clearance by Board of distributions and payments) of the Income and Corporation Taxes Act 1988;
(d)any decision under section 138(4) of the Taxation of Chargeable Gains Act 1992 (procedure for clearance in advance);
(e)any decision under section 187(5) or (6) (returns and information) of, or paragraph 3(2) or 6(2) of Schedule 21 (restrictions on powers under section 187) to, the Finance Act 1993;
(f)any decision under paragraph 91(5) of Schedule 15 to the Finance Act 2000 (corporate venturing scheme: advance clearance);
(g)any decision under paragraph 88(5) of Schedule 29 to the Finance Act 2002 (gains and losses from intangible fixed assets: transfer of business or trade);
(h)any decision under paragraph 2, 4, 7, 9, 10, 11 or 24 of Schedule 13 to the Finance Act 2003 (stamp duty land tax: information powers);
(i)any decision under section 306A (doubt as to notifiability), 308A (supplemental information), 313B (reasons for non-disclosure: supporting information) or 314A (order to disclose) of the Finance Act 2004;
(j)any decision under section 697(4) of the Income Tax Act 2007 (opposed notifications: determinations by tribunal);
(k)any decision under regulation 10(3) of the Venture Capital Trust (Winding up and Mergers) (Tax) Regulations 2004 (procedure for Board’s approval);
(l)any decision under regulation 5A (doubt as to notifiability), 7A (supplemental information), 12B (reasons for non-disclosure: supporting information) or 12C (order to disclose) of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2007.
(m)any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82 of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006.
Under TCEA – decisions
4.181There is no inherent power to bypass the prohibition on appealing against excluded decisions.
46Riniker v University College London [2001] 1 WLR 13.4.182In
LS v London Borough of Lambeth,
47[2010] UKUT 461 (AAC). a three-judge panel of the Upper Tribunal decided that an appeal lay against any decision of the First-tier Tribunal that was not an excluded decision.
48[2010] UKUT 461 (AAC) at [79]–[97].4.183
LS did not give a positive definition of decision. The Court of Appeal has considered the matter twice. Both involved judge-made rules and both approached the issue as depending on statutory interpretation of the relevant legislation. In one case the judge-made rule applied under TCEA; in the other case it did not. In
Sarfraz v Disclosure and Barring Service,
49[2015] 1 WLR 4441. the Court decided that although a decision refusing permission to appeal was a decision as a matter of ordinary language, it had to be read subject to the long-standing principle that an appeal did not lie from a decision on permission.
50[2015] 1 WLR 4441 at [24]-[26]. In
Patel v Secretary of State for the Home Department,
51[2015] EWCA Civ 1175. the Court decided that decision bore its natural meaning of a determination or resolution with regard to any point or a resolution or conclusion arrived at, and that this had to take precedence over any judge-made rule unless it was saved by the statute.
52[2015] EWCA Civ 1175 at [51]. Accordingly, a permission decision announced orally could not be reconsidered under TCEA.
4.184The Inner House of the Court of Session has also considered the meaning of decision. In
Secretary of State for Work and Pensions v Robertson,
53[2015] CSIH 82 at [43–45]. the House decided that the issue depended on the statutory interpretation of the relevant legislation. It relied on case-law to distinguish between a tribunal’s decision and its reasons. A decision is a disposal of an issue. The reasons explain why the particular disposal has been adopted. They provide its rational underpinning. It is necessary to take account of them in order to decide if a point of law arises from a decision for the purposes of an appeal to the Upper Tribunal.
4.185Although a decision may be appealable, it will not generally be appropriate to give permission to appeal in respect of case management decisions. They should be respected unless they are plainly wrong.
54Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] 1 WLR 4495. As the judge explained in
RM v St Andrew’s Hospital:
55[2010] UKUT 119 (AAC).… Appellate courts are supportive of these decisions and discourage appeals against them. They often have to be made with little time for analysis or reflection. Appeals can disrupt the proceedings, produce inefficiency and increase costs. They are capable of being used for tactical purposes. Ultimately, the judge dealing with the case is probably best placed to make a judgment on how best to proceed in the context of the proceedings. Challenges are best considered at the end of the proceedings, when it is possible to judge whether the decision adversely affected the outcome.
56[2010] UKUT 119 (AAC) at [7].4.186Permission to appeal should be given if the decision involves a point of substance that requires an urgent challenge and speedy resolution.
57Re P and P (Care Proceedings: Appointment of Experts) [2009] 2 FLR 1370 at [17]. RM v St Andrew’s Hospital58[2010] UKUT 119 (AAC). was an example. It concerned the disclosure of information that was central to the patient’s understanding of his condition and to his case before the First-tier Tribunal.
On the spectrum of case management decisions, the non-disclosure order is more susceptible to scrutiny than most. The judge held a hearing and took time before issuing her reasons. The issue is severable from the routine management of the case. It is important and its effects can be anticipated: the patient’s solicitors argue that they are unable to obtain his instructions on the real case for his continued detention. There is no question of tactical advantage being sought and it has been possible to deal with the appeal quickly.
59[2010] UKUT 119 (AAC) at [9].To whom is the application made?
4.187An application is always needed. A tribunal has no power to give permission on its own initiative. However, it may indicate to a party that it will give permission or even invite a party to apply.
4.188It is unlikely that the power to grant permission will be given exclusively to the person or body from whom the appeal lies. It will either be given exclusively to the tribunal or court to whom the appeal lies or to both.
Under TCEA
4.189For an appeal to the Upper Tribunal, section 11(4) provides for permission to be given either by the First-tier Tribunal or the Upper Tribunal. There is no requirement in TCEA that an application must first be made to the First-tier Tribunal. However, this is required by UTR r21(2). As this is a requirement of the rules, it can be waived under rule 7(2)(a).
60ZN, BB and JHS v London Borough of Redbridge [2013] UKUT 0503 (AAC) at [14]–[17]. Doing so is in line with the avoidance of circuity of action by doing directly what can be achieved indirectly.
61Re Collard’s Will Trusts [1961] Ch 293, approved by the House of Lords in Pilkington v Inland Revenue Commissioners [1964] AC 612.4.190For an appeal from the Upper Tribunal, section 13(4) provides for permission to be given by that tribunal or by the Court of Appeal. However, section 13(5) prohibits the making of an application to that court unless an application has first been made to the Upper Tribunal.
4.191The power is vested in the tribunal or the court. It is not vested in a judge or member of the tribunal or court.
What contribution may a respondent make?
4.192The position of respondents to an application for permission to appeal was explained by the Court of Appeal in
Jolly v Jay:
62[2002] EWCA Civ 277 at [44]–[47].… a respondent should only file submissions at this early stage if they are addressed to the point that the appeal would not meet the relevant threshold test or tests, or if there is some material inaccuracy in the papers placed before the court. By this phrase we mean an inaccuracy which might reasonably be expected to lead the court to grant permission when it would not have done so if it had received correct information on the point.
If, on the other hand, the respondent wishes to advance submissions on the merits of the appeal … the appropriate time for him to do so is at the appeal itself. In general it is not desirable that respondents should make submissions on the merits at the permission stage, because this may well lead to delay in dealing with the permission application and take up the resources of the appeal court unnecessarily.
Respondents will not be prejudiced at the appeal itself by having refrained from filing or making submissions at the permission stage, since this is essentially a ‘without notice’ procedure …
When an application for permission is to be determined on paper, any submission from the respondent must be in writing. Even in the event of an oral hearing a respondent should consider whether he can make his submission equally well in writing, particularly as he may not be allowed the costs of his attendance at the hearing.
4.193This approach may require some modification in the case of tribunals, as the respondent’s views may be relevant to the exercise of the tribunal’s powers to set aside or review. They may also be useful if the application for permission raises a new issue, as they may be able to show that it has no merit.
63R (H) v South London and Maudsley NHS Foundation Trust and Secretary of State for Justice [2010] EWCA Civ 1273 at [37].How is the tribunal constituted?
4.194This is governed by the Senior President’s practice statements on constitution.
Proportionate use of resources
4.195The Upper Tribunal is required to deal with cases proportionately and the parties are required to co-operate with the tribunal in doing so.
64Under UTR r2 and its equivalents. This means that applicants should limit their applications for permission so that they can be dealt with in a reasonable time.
4.196In
CMA CGM SA v Beteiligungs-KG MS ‘Northern Pioneer’ Schiffahrtsgesellschaft mbH & Co, the Court of Appeal gave guidance on the amount of time that should be devoted to an application:
65[2003] 1 WLR 1015 at [23].The statutory requirement that applications for permission to appeal should be paper applications unless the court otherwise directs must surely have been intended to simplify the procedure and to save the court’s time. That requirement reflects the fact that the criteria for the grant of permission to appeal are clear-cut and easy to apply. They do not require the drawing of fine lines, nor will they usually give much scope for the court to require assistance in the form of submissions or advocacy … Any written submissions placed before the court in support of an application for permission to appeal from findings in an arbitral award should normally be capable of being read and digested by the judge within the half-hour that, under the old regime, used to be allotted for such applications.
4.197This guidance assumes that the judge is familiar with the case; an Upper Tribunal Judge who deals with an application for permission to appeal against a decision of the First-tier Tribunal will not have seen the case before. It also assumes that the applicant is represented; that will not be so for many applicants to the Upper Tribunal.
Initial, first and second appeals
4.198Initial appeals are appeals from a decision-maker to a tribunal. First appeals are appeals from the first judicial decision to be made in a case. Second appeals are appeals from a second decision in a case by a higher tribunal. For example: an appeal from a decision-maker to the First-tier Tribunal is, in these terms, an initial appeal; the appeal from the First-tier Tribunal to the Upper Tribunal is a first appeal; and the appeal from the Upper Tribunal to the Court of Appeal is a second appeal.
4.199This distinction is relevant to the criteria that govern the granting of permission. Second appeals are subject to more restrictive criteria than first appeals. An initial appeal may lie as of right without the need for permission.
Criteria for granting permission to appeal
4.200These criteria apply to all appeals. In principle, an application for permission may be determined either by reference to the likely outcome or to the importance of the issue raised. In practice, this means that permission may be granted in three circumstances.
4.201First, permission may be granted if it is clear that the tribunal below went wrong. However, this may not be clear.
4.202So second, permission may be granted if it is arguable that the tribunal below may have gone wrong in law. The threshold is whether there is a realistic, as opposed to a fanciful or unrealistic, prospect that the appeal will succeed.
66Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at 1538 and Swain v Hillman [2001] 1 All ER 91 at 92. ‘No realistic prospect of success’ means the same, for practical purposes, as ‘clearly unfounded’: R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448 at [10]. This means success on the merits of the party’s case, not just some procedural advantage.
67Secretary of State for the Home Department v Makke [2005] EWCA Civ 176 at [23]–[24] (reported as R (Makke) v Secretary of State for the Home Department (2005) Times 5 April, but not on this issue).4.203Third, even if the tribunal did not go wrong, it may be appropriate to give permission. This is a permissible use of the discretion associated with permission. It may be appropriate if the Upper Tribunal is bound by authority and an appeal is needed in order for the issue to be considered by a higher court.
68Beedell v West Ferry Printers Ltd [2001] ICR 962. It may also be appropriate in order to provide a precedent or guidance on an issue of law.
69Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at 1538. This is particularly useful for a tribunal that has the responsibility of ensuring the orderly development of a specific body of law. It may be that this basis for granting permission is only permissible if it is allowed by the wording of the legislation. It is permissible if the legislation allows an appeal on a question, point or issue of law.
70As does TCEA s11(1). This is wider than s12(1), which allows a decision of the First-tier Tribunal to be set aside only if it involved the making of an error on a point of law. But it may not be permissible if the legislation allows an appeal on an error of law.
71As Social Security Act 1998 s14(1) did. The potential significance of the difference in language is greater if both are used in the same statute. Contrast the wording of s14(1), which allowed an appeal to a Commissioner on the ground that the decision of the tribunal was erroneous in point of law, with s15(1), which allowed an appeal to the Court of Appeal on a question of law. The language of error suggests that permission can only be granted if there is at least the possibility of an error.
4.204It is sometimes said that permission cannot be given if there is no error of law.
72R v The Social Security Commissioner and the Social Security Appeal Tribunal ex p Pattni [1993] Fam Law 213. However, these comments must be read as subject to this third possibility.
Limited permission
4.205The First-tier Tribunal may give permission to appeal to the Upper Tribunal,
73See: GRC Rules r43(5); HESC Rules r47(5); IAC Rules r34(5); PC Rules r53(5); SEC Rules r39(5); Tax Rules r40(5); WPAFC Rules r37(5). and the Upper Tribunal may give permission to appeal to the Court of Appeal,
74UTR r45(5); Lands Rules r56(5). on limited grounds. There is no express provision allowing the Upper Tribunal to give permission to appeal to itself on such grounds. However, it would be surprising if it did not have the power that is given to the First-tier Tribunal and the possibility of limited permission is recognised by UTR r22(4)(b). It is surely also permissible under the discretionary exercise of giving permission. In
RC v CMEC and WC,
75[2009] UKUT 62 (AAC). a two-judge panel confirmed a Commissioner’s grant of limited leave, for which there was no express power. The subsequent litigation assumed the validity of that decision.
76It culminated in the Supreme Court in R (Cart) v Upper Tribunal and R (MR (Pakistan)) v Upper Tribunal and Secretary of State for the Home Department [2011] UKSC 28. And in
Sarkar v Secretary of State for the Home Department,
77[2014] EWCA Civ 195 at [17]. the Court of Appeal decided without criticism that an Upper Tribunal judge had limited the grant of permission.
4.206A tribunal may expressly stipulate that permission has been limited. Even if it does not do so, its reasons may operate to limit the scope of the permission.
78Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [16]–[17].4.207It is important for the parties and the tribunal to know whether permission has been limited. The issue may arise in two ways.
4.208First, a party may wish to raise an issue that was not identified at the permission stage. This is what happened in R(I) 12/62. A medical appeal tribunal granted permission to the claimant to appeal on a specified ground. The Secretary of State supported the appeal on this ground and argued that it had also gone wrong in respect of the burden of proof. The Commissioner gave permission to raise this other issue in case it was necessary but without deciding between two competing views:
The view is attractive that, once the case is before the Commissioner on one ground, it is for him to decide whether the decision of the tribunal is erroneous in point of law on any ground. On the other hand the only right of appeal is that created by the statute, which itself imposes the necessity of obtaining leave to appeal … The regulations make no provision for anything in the nature of a cross-notice, and it is well arguable that in the absence of express provision the obtaining of leave in this case by the Minister, followed by appealing, is necessary.
79[2009] UKUT 62 (AAC) at [10].In practice, the Commissioners allowed any party to raise any issue once permission had been given.
4.209Second, an application may contain a number of grounds. The tribunal may give permission and refer to some of those grounds or give permission on a ground of its own. This is open to three interpretations. The tribunal may have given permission only on the ground mentioned. If so, it should have given reasons for refusing permission on the other grounds.
80See UTR r22(1). Or it may have given permission on the ground mentioned and on the other grounds in the application for which it has not expressly refused permission. Or it may have given permission generally so that any issue can be raised on the appeal, whether previously identified or not. Ideally, the tribunal should make expressly clear what form of permission has been given.
4.210If the First-tier Tribunal gave permission on limited grounds, the appellant may apply to the Upper Tribunal to give permission on the other grounds. There is nothing to prevent this being done at any stage of the proceedings.
4.211The rules on limited permission provide that the tribunal must give reasons for ‘any’ grounds on which it refuses permission.
81UTR r45(5); GRC Rules r43(5); HESC Rules r47(5); IAC Rules r34(5); Lands Rules r56(5); PC Rules r53(5); SEC Rules r39(5); Tax Rules r40(5); WPAFC Rules r37(5). That envisages that there may not be any grounds on which permission was refused. In other words, the tribunal may give permission on all the grounds in the application but limit the permission to those grounds.
4.212Under CPR, a party who has been given conditional permission may prefer not to accept the permission but rather to challenge the conditions. The party has three choices: (i) not pursue the appeal; (ii) rely on the permission and accept the conditions; or (iii) not rely on the permission, but apply to the Court of Appeal for permission afresh.
82R (Medical Justice) v Secretary of State for the Home Department [2011] 4 All ER 425. The position is different before the Upper Tribunal, because UTR r21(2) prevents an application for permission in those circumstances.
4.213In practice, the power to give permission on limited grounds may not be of practical significance. In
DL-H v Devon Partnership NHS Trust,
83[2010] UKUT 102 (AAC) at [3], approved by the Court of Appeal in Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [17]. the Upper Tribunal decided that an appeal was not limited to issues covered by the grant of permission:
I reject the argument that an appeal is necessarily limited to the grounds in the application on which permission was given and that further permission is required to raise other grounds. The right of appeal is conferred by section 11 of the Tribunals, Courts and Enforcement Act 2007. It is discretionary and subject to the grant of permission. Permission is governed by the rules of procedure. The rules contain three provisions for restricting the scope of an appeal: (i) limited permission; (ii) the control of the issues on which the tribunal requires submissions; and (iii) the power to strike out a party’s case. The rules confer power on the First-tier Tribunal to give permission only on limited grounds: rule 47(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). The Upper Tribunal has equivalent power in respect of an appeal to the Court of Appeal on limited grounds: rule 45(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). There is no express power for the Upper Tribunal to give limited permission to appeal to itself. However, the rules envisage this possibility: rule 22(4)(b). This is, presumably, permissible without express authority and in the exercise of the tribunal’s discretion. The rules must be interpreted and applied to give effect to the overriding objective under rule 2. As a matter of interpretation, it would not be fair and just to restrict the scope of an appeal to the grounds in the application on which permission was given. The rules apply to the whole of the work of the Upper Tribunal, not just mental health. The Secretary of State for Work and Pensions is the respondent to the vast majority of appeals before the Administrative Appeals Chamber and takes a neutral and objective approach to appeals, often identifying issues favourable to a claimant. It would not be desirable to hinder that approach, as many appellants are either not represented at all or not professionally represented. Mental health cases are different in that the patient is usually professionally represented. But it is not possible, as a matter of interpretation, to draw a distinction on that ground. That is a matter, if it is relevant at all, for the application of the rules. My interpretation does not allow a party complete freedom to raise additional grounds at will. The Upper Tribunal has ample power to control the issues that will be considered on an appeal. As well as the possibility of giving limited permission, rule 15(1)(a) authorises the tribunal to give directions as to the issues on which it requires submissions. In an extreme case, the tribunal may even strike out all or part of a party’s case under rule 8(3). Those provisions should be sufficient to ensure that additional grounds are only considered if that would be fair and just.
Conditional permission
4.214There is no express power authorising either the First-tier Tribunal or the Upper Tribunal to give permission to appeal subject to conditions. However, this possibility is recognised by UTR r22(4)(b). In principle, this should be possible as part of the discretionary exercise of giving permission, at least by the tribunal to whom the appeal lies. The most likely condition will relate to costs.
84For example: the Court of Appeal may impose the condition that a Secretary of State pay the costs of an appeal that raises issues of general importance, such as the interpretation of legislation.4.215In principle, conditions should only be attached by the court or tribunal to whom the appeal lies. If the tribunal below were to attach conditions, it would have no power to enforce them.
4.216See above under Limited permission for a discussion of the options available to a party on whom conditions are imposed in a grant of permission.
On grounds identified by the applicant
4.217It is always good practice for an applicant to identify the grounds on which permission could be given. It is not sufficient for the person applying for permission to identify the part of the decision that is challenged. The person should identify the issues raised and the reasons supporting the challenge to the decision. If the appeal would be a second appeal, the application should show how the additional criteria are satisfied.
85Re N (A Child) [2010] 1 FLR 454 at [69]–[72]. Legislation may specify the particulars that the applicant must include in the grounds for appeal.
86As it was in Secretary of State for the Home Department v Makke [2005] EWCA Civ 176, reported as R (Makke) v Secretary of State for the Home Department (2005) Times 5 April. However, this may be applied loosely for the benefit of parties who are unfamiliar with the procedures.
87R(I)15/53 at [4].4.218It is irrational for a rule of procedure to prevent a party from amending grounds of appeal to include an arguable and potentially meritorious point.
88AM (Serbia) v Secretary of State for the Home Department (2007) Times 19 February.On grounds not identified by the applicant
4.219This issue is related to the scope of the tribunal’s inquisitorial approach.
89See chapter 1.4.220In asylum cases, the courts have limited the tribunal’s inquisitorial duty on an application for permission to obvious points. In
R v Secretary of State for the Home Department ex p Robinson,90[1998] QB 929. the Court of Appeal was concerned with an application for judicial review of a refusal by the Immigration Appeal Tribunal of permission to appeal against the decision of a special adjudicator. The Court said:
Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should be under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely ‘arguable’ as opposed to ‘obvious’. Similarly, if when the tribunal reads the special adjudicator’s decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted.
91[1998] QB 929 at 945–946. The position may be different on an appeal: see Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495 at [44]–[45], [59] and [61], reported as R(IB) 4/07, discussed above at para 4.95.4.221
P v Secretary of State for the Home Department92[2004] EWCA Civ 1640; (2004) Times 14 December. is to similar effect. The case concerned an asylum seeker who had been subject to domestic violence. One issue was whether she would have been sufficiently protected by internal relocation in her home country. The Court of Appeal rejected an argument that the adjudicator should have raised and determined this issue on her own initiative. Lord Woolf CJ said:
In our view this is to place an unnecessary and inappropriate burden upon the Adjudicator and the Appellant who appears before her. In the absence of evidence that suggests that there is an alternative location to which the Appellant could go where she would not be at risk from her husband, adjudicators cannot be expected to investigate such issues for themselves of their own initiative when they have not been raised by the Secretary of State.
93[2004] EWCA Civ 1640 at [33].4.222The approach in the asylum cases was applied to all tribunals by Scott Baker J in
R (Begum) v Social Security Commissioners94[2002] EWHC 401 (Admin) at [19]. on the ground that it would be confusing and without logic to apply different tests. As to what was obvious:
The position is that mere arguability is not the test, a higher hurdle must be surmounted. The point must be obvious; that is one which would have a strong prospect of success were leave to be granted. An obvious point, it seems to me, is one that stands out and not one that can only be gleaned by a paper chase through various documents which may underlie the decision maker’s decision. Accordingly, it will, in my judgment, ordinarily be difficult to bring a reasons challenge within such a category, unless the reasons are obviously deficient on their face.
[The Commissioner] … is not obliged to look and see whether every finding unchallenged in the grounds of appeal is supported by the evidence. He is not obliged to embark on a paper chase or do a detailed analysis of conflicting evidence where, for example, one witness’s evidence was preferred to that of another.
95[2002] EWHC 401 (Admin) at [20] and [31].4.223However, this restrictive approach does not apply if the issue involves a point of general importance, such as one that concerns the State’s compliance with its international obligations.
96Bulale v Secretary of State for the Home Department (2008) Times 25 July.On error of fact
4.224Appeals that cover issues of fact usually lie as of right and do not require permission. The principles that apply when permission is required were set out by the Upper Tribunal in
JP v Standards Committee of Surrey County Council.
97[2011] UKUT 316 (AAC) at [11]–[22]. Permission must not be given so freely as to subvert the filter function that permission serves. If the appeal is from a tribunal, the principles in
Subesh v Secretary of State for the Home Department98[2004] EWCA Civ 56, discussed under the Scope of an appeal above. apply. If the appeal is from a decision-maker, a more lenient approach is appropriate, as the evidence has not yet been considered judicially. There is a discretion to give permission to appeal even if there is little or no prospect of success on factual grounds, provided that the circumstances justify a judicial consideration of the decision.
Criteria for granting permission for second appeals
4.225In principle, once a judicial decision has been the subject of an appeal, access to a further appeal should be permissible only on restricted grounds. This is especially so if the first appeal was to a specialist tribunal. The criteria consider above must be satisfied, but subject to further conditions.
Under TCEA
4.226The TCEA s13(6) authorises restrictive conditions to be imposed for appeals from the Upper Tribunal. This power is exercised by article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, under which the Upper Tribunal may not grant permission to appeal to the Court of Appeal unless it:
… considers that–
(a)the proposed appeal would raise some important point of principle or practice; or
(b)there is some other compelling reason for the relevant appellate court to hear the appeal.
This is equivalent to section 55(1) of the Access to Justice Act 1999, which applies to the court system. It applies in England, Wales and Northern Ireland. Section 13(6A) makes equivalent provision for Scotland.
4.227The effect of this provision is that permission will only be given in exceptional cases and not merely because there is a real prospect of success.
99Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311 at [41]–[42]. It sets out threshold criteria, which apply at the permission stage only and does not limit the scope of the appeal if permission is given.
100R (HS) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department [2012] EWHC 3126 (Admin) at [31]. This is now the position under CPR r 54.7A(7). The Supreme Court takes the same approach: Jackson v Murray [2015] 2 All ER 805 at [30].4.228The ‘important point of principle or practice’ was discussed in
Uphill v BRB (Residuary) Ltd.101[2005] 1 WLR 2070. It must be one that has not been decided; the correct application of an established principle is not within article 2.
102[2005] 1 WLR 2070 at [18]. And, however theoretically important, it must be one that will affect the outcome of the particular case.
103R (H) v South London and Maudsley NHS Foundation Trust and Secretary of State for Justice [2010] EWCA Civ 1273 at [41]. If the case does raise an important point of principle or practice, it may be appropriate to give permission limited to that issue alone.
104R (H) v South London and Maudsley NHS Foundation Trust and Secretary of State for Justice [2010] EWCA Civ 1273 at [36]. Care should be taken in giving permission on an issue that was not raised below; it may be appropriate to obtain the views of the other parties before doing so.
105R (H) v South London and Maudsley NHS Foundation Trust and Secretary of State for Justice [2010] EWCA Civ 1273 at [37]. The point of principle or practice must not merely be important, but must be one that calls for the attention of the Court of Appeal and cannot be left to the specialist tribunal.
106PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 at [37].4.229The ‘other compelling reason’ was also discussed in
Uphill v BRB (Residuary) Ltd.
107[2005] 1 WLR 2070. It must involve something other than an important point of principle or practice.
108[2005] 1 WLR 2070 at [19]. The Court of Appeal went on to analyse when it would be satisfied:
(1)A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.
109[2005] 1 WLR 2070 at [24]. (2)Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant’s fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court’s mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3)There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.
4.230The meaning of ‘other compelling reason’ was also considered by the Court of Appeal in
Re B (Residence: Second Appeal).110[2009] 2 FLR 632 at [10]–[12] and [14]. The court held that the fact that the decision was arguably plainly wrong was not of itself a compelling reason for giving permission. Nor was the fact that the decisions given at different levels below were in conflict. The court did, though, consider that it was possible that the impact of a decision on the welfare of a child could provide a compelling reason. And in
Hall v Hall111[2008] 2 FLR 575. Thorpe LJ said that ‘the correction of manifest injustice must be a compelling reason’.
112[2008] 2 FLR 575 at [7].4.231In
R (Cart) v Upper Tribunal,
113[2012] 1 AC 663. Lord Dyson cautiously suggested two possible examples of compelling reasons that combine an error that is serious in its nature or impact with a high degree of certainty that the error can be established: ‘(i) a case where it is strongly arguable that the individual has suffered … “a wholly exceptional collapse of fair procedure” or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences.’
114[2012] 1 AC 663 at [131]. In
Eba v Advocate General for Scotland,
115[2012] 1 AC 710. Lord Hope (giving the judgment of the Court) gave two examples that set slightly stricter criteria than the criteria for a first appeal: ‘where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all.’
116[2012] 1 AC 710 at [48].4.232The Court of Appeal reacted to these decisions in
PR (Sri Lanka) v Secretary of State for the Home Department.
117[2011] EWCA Civ 988. It decided that the scope of ‘compelling reason’ was a matter of judicial policy in the deployment of scare judicial resources at the higher levels. It was for the Court of Appeal to set the limits of the concept as the final arbiter of whether cases should progress as far as that Court. The views of the Supreme Court were persuasive, but no more. The Court adopted the approach in
Uphill. It decided that the principles set out above applied regardless of the subject matter, with no special approach for cases involving international obligations, such as asylum and human rights. Compelling meant legally compelling, not emotionally or politically. The provenance of the case might be relevant to the application of these principles. Applying this approach to the Upper Tribunal, the Court noted that it was a specialist body, and that judges of the High Court and the Court of Appeal contributed to its standards by sitting as members as well as through judicial oversight in the senior courts. Cases involving international obligations did not form a special category as there was no international right to a second appeal. By the time the case was considered by the Court of Appeal, it would already have been decided twice, by the First-tier Tribunal and the Upper Tribunal. The issue was whether there was something that made a third consideration compelling.
4.233The Administrative Court in turned reacted to the Court of Appeal’s decision. In the cases of
R (Khan, Jassi, Olawoyin and R) v Secretary of State for the Home Department and the Upper Tribunal (Immigration and Asylum Chamber,
118[2011] EWHC 2763 (Admin). The judge authorised his judgment to be cited as an authority. Ouseley J laid down the principles that that Court would follow in applying
Cart and
PR. He began by emphasising that
PR was binding in the Administrative Court and applied to all applications for permission to apply for judicial review of non-appealable decisions of the Upper Tribunal, not just refusals of permission to appeal. In future, there would be no excuse for applications to be framed in terms of the previous law. They should be made promptly, be short and focused, and be supported by only the minimum documentation necessary. The judge concluded by reminding parties of the Court’s cost powers.
4.234In
JD (Congo) v Secretary of State for the Home Department and the Public Law Project,
119[2012] 1 WLR 3273. the Court of Appeal considered what factors were relevant to the whether there was a compelling reason. It decided that although (i) the fact that the appellant had succeeded before the First-tier Tribunal but lost before the Upper Tribunal, (ii) the fact that the Upper Tribunal had re-made the First-tier Tribunal’s adverse decision to the same effect, and (iii) the impact of the decision on the appellant were not of themselves compelling reasons, they were factors that could be taken into account when deciding whether a sufficiently serious legal basis for challenging the Upper Tribunal’s decision existed.
120[2012] 1 WLR 3273 at [23], [26] and [27].4.235If the Upper Tribunal has correctly applied an authority that is also binding on the Court of Appeal, it may be a compelling reason that a party should have the chance to apply to the Supreme Court for permission to challenge that decision.
121Re D (Leave to Remove: Appeal) [2010] 2 FLR 1605. However, it would have to be appropriate in the circumstances of the particular case to give permission on that ground.
122Re D (Leave to Remove: Appeal) [2010] 2 FLR 1605 at [35].Outside TCEA
4.236The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 and Rules of the Court of Session r41.57 are made under the authority of TCEA s13(6) and (6A). Those subsections only apply, by virtue of subs (7), to applications for permission to appeal against decisions made by the Upper Tribunal on appeal under s11. So the provisions do not apply to: appeals direct from a decision-maker, such as under the Safeguarding Vulnerable Groups Act 2006; judicial review; and references, such as under the Forfeiture Act 1982. An appeal to the Court of Appeal against decisions under these jurisdictions would not be a second appeal, so the restrictive approach does not apply.
4.237In some cases, an appeal from the decision of the Upper Tribunal is a second appeal, but it is outside the scope of s13(6) or (6A) because the tribunal’s jurisdiction is not based in s11.
123Clarise Properties Ltd v Rees [2015] EWCA Civ 1118. So the Order does not apply to: appeals against decisions of two Welsh tribunals (the Mental Health Review Tribunal for Wales and the Special Educational Needs Tribunal for Wales), and the Pensions Appeal Tribunals in Scotland and Northern Ireland. An appeal to the Court of Appeal against decisions under these jurisdictions would be a second appeal. For such cases,
Cooke v Secretary of State for Social Security124[2002] 3 All ER 279. applies. Hale LJ there said that permission should only be given to appeal against a Commissioner’s decision on limited grounds equivalent to those that apply under the Order. This does not apply if the issue does not involve the tribunal’s specialist expertise.
125Clarise Properties Ltd v Rees [2015] EWCA Civ 1118 at [30]–[33].4.238A decision by the Upper Tribunal on a referral under s9(5)(b) is in form not a decision on an appeal, so the Order does not apply, but in substance it is equivalent to an appeal. Presumably, Cooke would apply.
4.239It may be that the
Cooke approach is not as wide as the Order. In
LA v Secretary of State for Work and Pensions and TVI,
126Unreported 25 March 2004. the Inner House of the Court of Session held that it does not include issues of general law, such as habitual residence.
127Unreported 25 March 2004 at [5].Leapfrog appeals
4.240TCEA ss14A-14C provide for the Upper Tribunal to issue a certificate that allows for an application for permission to appeal to be made to the Supreme Court, bypassing the Court of Appeal.
128This only applies to Upper Tribunal decisions made or after August 8, 2016: the Criminal Justice and Courts Act (Commencement No 4 and Transitional Provisions) Order 2016 art 4. It does not apply to cases in which an appeal would lie to the Court of Session in Scotland. The Employment Tribunals Act 1996 ss37A-37C make equivalent provision for the Employment Appeal Tribunal.Refusing permission to appeal
4.241Even if the case is one in which permission to appeal could be given, it may be inappropriate to do so. This is possible on two grounds: materiality and discretion.
As to materiality, the Court of Appeal in
Secretary of State for the Home Department v Makke129[2005] EWCA Civ 176 at [23]–[24], reported as R (Makke) v Secretary of State for the Home Department (2005) Times 5 April, but not on this issue. held that the test of a real prospect of success refers to ultimate success on the merits. Accordingly, permission may be refused if the tribunal’s mistake did not affect the outcome. Likewise, if the ultimate outcome is unlikely to be different even on a rehearing. In
R v Secretary of State for Social Services ex p Connolly,130[1986] 1 WLR 421. the Court of Appeal was concerned with a refusal of permission by a Commissioner. The applicant had been refused judicial review of that refusal and had appealed against that decision to the Court of Appeal. Slade LJ said:
If an applicant presents … an arguable, even substantially arguable point of law, it may still, in some circumstances, be open to the commissioner to refuse leave in the proper exercise of his discretion, for example, if he is satisfied that the point of law will have no effect on the final outcome of the case.
131[1986] 1 WLR 421 at 432.4.242This is consistent with the way that the law defines an error of law taking account of the impact of the error on the outcome of the proceedings. In
R (Iran) v Secretary of State for the Home Department,
132[2005] EWCA Civ 982. Brooke LJ set out the most common ways in which a tribunal may go wrong in law
133[2005] EWCA Civ 982 at [9]. This paragraph is quoted below at para 4.290. and added:
Each of these grounds for detecting an error of law contain the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter …
134[2005] EWCA Civ 982 at [10].4.243In
Holmes-Moorhouse v Richmond upon Thames London Borough Council,
135[2009] 1 WLR 413. Lord Neuberger assembled some of the ways in which a decision could survive an error in its reasoning. He was referring to a decision by a decision-maker rather than by a tribunal, but the examples are equally applicable:
… a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error;
136As in Re C (Care Proceedings: Sexual Abuse) [2009] 2 FLR 46 at [10]. sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.
137[2009] 1 WLR 413 at [51].4.244As to discretion, the permission filter confers a discretion rather than imposes a duty. Accordingly, permission may be refused despite there being an arguable point in the case. This allows permission to be refused if the application identifies a point of law, but it has no merit or substance
138R(I) 3/61. or further litigation would be disproportionate.
139Cook v Plummer [2008] 2 FLR 989 at [13].4.245It will also be appropriate to refuse permission, despite an error, if the proceedings as a whole have become abstract. In
R (Begum) v Social Security Commissioners,140[2002] EWHC 401 (Admin) at [19]. Scott Baker J, after dealing with the circumstances in which the Commissioner had to take a point that had not been raised by the applicant, said:
The fact that the untaken point was an obvious one and had a strong prospect of success is not in itself enough if, assuming the point had been taken, there were other grounds on which the Commissioner would have been entitled to refuse leave, for example, that the proceedings had become academic.
141[2002] EWHC 401 (Admin) at [22].If the outcome was not affected
4.246A tribunal has four possible responses if an application raises an issue that has not affected the outcome of the appeal.
4.247The first is to refuse permission on the ground that, although the tribunal went wrong, the mistake was not material to the decision.
4.248The second is to refuse permission on the ground that the tribunal made a mistake, but it is appropriate to exercise the discretion to refuse permission.
4.249The distinction between these first two possibilities may be very fine. In most cases, one or other will be the appropriate response.
4.250The third is to give permission to appeal in respect of the mistake made by tribunal regardless of the fact that it was not material, but then give a decision confirming the decision under appeal (TCEA s12(2)(a)). This allows the Upper Tribunal to deal with an issue that will benefit later tribunals.
4.251The fourth is to give permission on the ground that, although the mistake did not affect the outcome, the circumstances merit a rehearing. This approach will only be appropriate in rare cases. For example: if racist remarks were made by the tribunal in a case in which the evidence was anyway against the party. A rehearing may be desirable in such a case to give what the party had a right to have, an unbiased consideration of the merits of the case for whatever they were worth.
Reasons for decision
4.252In order to comply with article 6 reasons must be given. They may be short, but they must be sufficiently clear not to leave the precise reason to conjecture.
142Peter Gibson LJ in Hyams v Plender [2001] 1 WLR 32 at [17]. It may not be appropriate or permissible for a judge who makes forthright comments on the merits when refusing permission to take part in subsequent proceedings.
143Bridle v Bridle [2011] 1 FLR 1213 at [4].4.253It is not permissible to challenge a tribunal’s decision by reference to the reasons it gives for refusing permission to appeal.
144Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67].Directions when permission is given
4.254When permission is given, the Upper Tribunal may give directions to help focus the submissions of the parties on the key issues that arise. These do not necessarily imply that no other grounds may be considered.
145Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at 1538–1539.Reconsideration
4.255There is an express power to apply for reconsideration under UTR r22(3)–(5). It applies to: (a) decisions under GRC, HESC and Tax Rules; (b) decisions of the Mental Health Review Tribunal for Wales; (c) decisions of the Special Educational Needs Tribunal for Wales; and (d) decisions under the Safeguarding Vulnerable Groups Act 2006 s4. This only applies if:
•the Upper Tribunal (i) refuses permission to appeal, (iii) refuses to admit the application, (iii) gives limited permission, or (iv) gives conditional permission; and
•did so without a hearing.
An application must be made within 14 days.
4.256By its terms, UTR r22(4) only provides for an application to be made. It has been taken as giving a right to an oral reconsideration, bringing it in line with the equivalent provision in CPR. If the application is struck out, rather than refused or not admitted, the power to apply does not arise.
146Dransfield v Information Commissioner [2016] UKUT 0273 (AAC).4.257Apart from UTR r22(3)–(5), there may be a general power to reconsider a decision on permission to appeal.
147See chapters 7 and 15. This is more likely to be appropriate in order to grant permission than to revoke a grant already made.
Challenging permission decisions
Appeal
4.258The governing legislation may provide that an appeal does lie against a decision on permission, but it must do so expressly.
148Lord Esher MR in Re Housing of the Working Classes Act, 1890 ex p Stevenson [1892] 1 QB 609 at 611. In the absence of an express provision, any risk of prejudice to the unsuccessful applicant may be alleviated in two ways. First, the application may have a double right to apply for permission both to the body against which the appeal lies and, if that is refused, to the body to whom the appeal lies. Second, the applicant may have a right to renew the application before the same tribunal, usually at an oral hearing following a refusal on a paper consideration.
4.259The governing legislation may expressly provide that an appeal does not lie against a decision on permission. TCEA s11 does not include these decisions in the list of decisions that are excluded from appeal, although TCEA s13(8)(c) does.
149 That paragraph is limited to decisions on permission to appeal against a decision of the First-tier Tribunal. The same exclusion applies on general principle even in the case of a decision on permission to appeal to the Upper Tribunal against a decision of a decision-maker: Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441. In the absence of an express provision, the issue must be decided on the proper interpretation of the legislation.
150Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441. For example: the grant or refusal of permission may not be a ‘decision’ in terms of the appeal provision.
151R (Sinclair Investments (Kensington) Ltd) v Lands Tribunal [2006] 3 All ER 650 at [23]; Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033 at [45] and [50]; and R(I) 14/65 at [6]. This interpretation may be made easier if the grant or refusal of permission is referred to as a determination rather than a decision. In an adjudication context, these words are usually synonymous: Vaisey J in Re 56 Denton Road, Twickenham [1953] Ch 51 at 56. And the legislation may not use the terms consistently: Maurice Kay LJ in Morina at [40]. However, the particular legislative context may be clear. Contrast, for example, the use of ‘determination … on an application for leave to appeal’ in the Child Support Commissioners (Procedure) Regulations 1999 regs 13(1) and 26(1) (revoked) with ‘decision … on an appeal’ in reg 26(2). This has been repeatedly affirmed.
152See Bland v Chief Adjudication Officer [1983] 1 WLR 262; Kuganathan v Chief Adjudication Officer (1995) Times 1 March; R v Secretary of State for Trade and Industry ex p Eastaway [2000] 1 WLR 2222; R (Sinclair Investments (Kensington) Ltd) v Lands Tribunal [2006] 3 All ER 650. Likewise, the context and language used to define the scope of the right of appeal may make it clear that a refusal to extend time for appealing is not appealable.
153As in White v Chief Adjudication Officer [1986] 2 All ER 905 and in Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033 at [37].4.260Apart from express statutory authority, there is generally no right of appeal against a decision to grant or refuse permission.
154Access to Justice Act 1999 s54(4) expressly provides that there is no right of appeal in the court system. This has been derived from the need to prevent the purpose of permission as a filter being subverted.
155Lane v Esdaile [1891] AC 210. It has also been derived from the nature of the decision on permission as being final and conclusive.
156Re Housing of the Working Classes Act, 1890 ex p Stevenson [1892] 1 QB 609.4.261In
Rickards v Rickards,
157[1990] Fam 194. the Court of Appeal held that this reasoning does not apply to decisions whether to extend time for appealing.
4.262It is only the decision on permission that is not appealable. The reasoning that excludes an appeal does not apply to any other order, such as a costs order, that is made at the same time.
158Riniker v University College London [2001] 1 WLR 13 at [13]. However, permission would rarely be given.
159Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 at [20].4.263The Court of Appeal has twice said that a decision on permission might be appealable if no decision had ever been made at all, as a result of bias, whimsy, personal interest or, most likely, mischance.
160Aden Refinery Co Ltd v Ugland Management Co Ltd [1987] QB 650 at 666; Daisystar Ltd v Town & Country Building Society [1992] 1 WLR 390 at 393–394. In practice, such cases would probably be dealt with under a tribunal’s powers of set aside or review and without the need for an appeal.
4.264In
Samuda v Secretary of State for Work and Pensions and Harris,
161[2014] 3 All ER 201. In Grogan v Rochdale Metropolitan Borough Council [2013] EWCA Civ 1347 at [2], Gloster LJ had assumed in Mrs Grogan’s favour that there was a right of appeal, but refused permission in any event. the Court of Appeal decided that there was no right of appeal against a decision by the Upper Tribunal refusing to set aside its refusal of permission to appeal. Unfortunately, the Court based its reasoning on the review power under TCEA s10 rather than on the set aside power under UTR r43, which the tribunal had exercised.
Correction or set aside
4.265The test for granting permission to appeal is necessarily flexible and it is inappropriate to apply to have the order set aside at the substantive hearing of the appeal.
162Tradigrain SA v Intertek Testing Services (ITS) Canada Ltd [2007] EWCA Civ 154 at [12] and [52]; (2007) Times 20 March. If the order is wrongly drawn, it is possible for it to be corrected, but an application to do so should be made at the earliest opportunity and not at the hearing.
163[2007] EWCA Civ 154 per Moore-Bick LJ at [12]. Any other approach would result in ‘satellite litigation, which … is particularly prone to be wasteful of time, money and judicial resources.’
164[2007] EWCA Civ 154 per Laws LJ at [52].Judicial review
4.266If there is no right to appeal or to make another application, a decision on permission to appeal may be challenged by way of judicial review: see chapter 6.
4.267In
R (Cart) v Upper Tribunal165[2012] 1 AC 663. and
Eba v Advocate General for Scotland,
166[2012] 1 AC 710. the Supreme Court decided that an unappealable decision of the Upper Tribunal was susceptible to judicial review if one of the second appeal criteria was satisfied: (i) the case raises an important point of principle or practice; or (ii) there is another compelling reason for the case to be subject to review.
Judges who refuse permission
4.268There is no objection in principle to a judge who has refused permission to appeal sitting on the renewed application at an oral hearing
167Khreino v Khreino [2000] 1 FLR 578. or on the appeal itself if permission is later given.
168Mahomed v Morris (2000) Times 3 February. There may, though, be circumstances in the particular case that make this inappropriate.