Most appeal cases submitted to the Court of Appeal require permission. The lower Court may grant permission, but this is unusual. It is a way of saying that the Judge accepts their decision may not be right. More often permission is refused and one has to apply for permission from the Court of Appeal itself.
It is vital to initiate this process quickly. One has to lodge an “Appellant’s Notice” within two weeks of the decision to be appealed. This is relatively easy to do as the information required is not great. Nevertheless, full documentation and a skeleton argument explaining why the appeal is sound have to be provided within two weeks after that.
A decision is made on paper by a Lord Justice of Appeal. If the decision is to refuse permission, one can renew the application in an oral hearing. This is usually before one or two Lord Justices. The other party (or parties) are not normally invited but, in practice, they will often turn up to the hearing. They may still not be allowed to make representations – the point is that the prospective appellant must show that the proposed appeal stands a realistic prospect of success.
If permission to appeal is refused at this stage it is the end of the matter. One cannot then take it further to the House of Lords (on the basis that you have been refused twice – by the High Court and Court of Appeal). In this sense the Court of Appeal is, therefore, a Court of last instance and, as a matter of law, must refer points of European law that are not ‘acte clair’ to the European Court of Justice. In practice in such cases, the Lord Justice(s) hearing the application for permission will usually adjourn the matter to a full three-person Court for further consideration.
If permission is granted the appeal will proceed, any time up to a year later, before a three-person court. Usually, no new evidence is allowed as the facts have been decided at the High Court stage. In theory, therefore, the appeal stage is quicker and cheaper than the High Court stage. Although this is usually true, in practice, an argumentative permission stage can be time consuming, as we have found in some particularly vexed cases.
As in the High Court, judgment may be given on the spot, although usually it is handed down. Increasingly the Court of Appeal will either give one judgment on behalf of all the Lord Justices or two will simply agree with one lead judgment.
There is again the argument as to costs. Permission is sought to appeal to the Supreme Court, which is almost invariably refused.