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Practice Directions and Standing Orders Applicable to Civil Appeals Contents


HOUSE OF LORDS

PRACTICE DIRECTIONS APPLICABLE TO CIVIL APPEALS

PART I - DIRECTIONS ON PETITIONS FOR LEAVE TO APPEAL

1.  PERMISSION TO APPEAL

Introduction

1.1  Subject to certain conditions, appeals in civil matters may be brought to the House of Lords from the Court of Appeal in England and Wales and in Northern Ireland, from the High Court in England and Wales and in Northern Ireland under the "leapfrog" procedure, and from the Court of Session in Scotland[1]. The judicial procedures of the House are regulated by statute, by standing orders of the House and by practice directions[2]. Copies of these and other documents may be obtained free of charge from the Judicial Office of the House of Lords or downloaded from the Internet.

Terminology

1.2  The Appellate Jurisdiction Act 1876 is the basic Act governing the judicial function of the House of Lords. This booklet uses the terminology of that Act. The term "leave to appeal" means permission to appeal. A "petition for leave to appeal" is an application for permission to appeal.

Right of appeal

1.3  The right of appeal to the House of Lords is regulated by statute and subject to statutory restrictions. The relevant statutes for civil appeals are: the Administration of Justice (Appeals) Act 1934; the Administration of Justice Act 1960; the Administration of Justice Act 1969; the Judicature (Northern Ireland) Act 1978; the Court of Session Act 1988; and the Access to Justice Act 1999. Every applicant for leave to appeal must comply with the statutory requirements before the application can be considered by the House. The Human Rights Act 1998 applies to the House in its judicial capacity. But that Act does not confer any general right of appeal to the House, or any right of appeal in addition to or superseding any right of appeal provided for in Acts passed before the coming into force of the Human Rights Act 1998.

Stay of execution

1.4  See direction 43.

Appeals from (i) the Court of Appeal in England & Wales; and (ii) the Court of Appeal in Northern Ireland

1.5  An appeal to the House of Lords from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland may only be brought with the leave of the Court of Appeal or of the House of Lords[3].

1.6  An application for leave to appeal must be made first to the Court of Appeal and only after that Court refuses leave may application be made to the House of Lords itself. Application is made by presenting a petition for leave to appeal[4].

Appeals from the Court of Session in Scotland

1.7  Leave to appeal is not required in appeals to which directions 1.8 and 1.9 apply. Leave to appeal is required for appeals to which directions 1.10 and 1.11 apply.

1.8  As a general rule, leave to appeal is not required from an interlocutor of the Inner House of the Court of Session on the whole merits of the cause[5]. Standing Orders I and IV govern such appeals. The petition of appeal must be lodged within 3 months of the date of the interlocutor appealed from; and the petition of appeal must be signed by two Scottish counsel who must also certify that the appeal is reasonable[6].

1.9   As a general rule, leave to appeal is not required from an interlocutory judgment of the Court of Session where there is a difference of opinion among the judges or where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action[7]. Standing Orders I and IV apply: the petition of appeal must be lodged within 3 months of the date of the interlocutor appealed from; and the petition of appeal must be signed by two Scottish counsel who must also certify that the appeal is reasonable.

1.10  Leave to appeal is required for an appeal to the House of Lords against any interlocutory judgment of the Court of Session that does not fall within direction 1.9, and only the Inner House of the Court of Session may grant such leave to appeal[8]. In all such cases a refusal of the Court of Session to grant leave to appeal is final and no petition for leave to appeal may then be presented to the House of Lords.

1.11  Leave to appeal from the Court of Session is also required for an appeal to the House of Lords under the provisions of certain Acts of Parliament, and such leave may be granted either by the Court of Session or, if refused by the Court of Session, by the House of Lords[9]. When leave to appeal is granted pursuant to direction 1.10 or this direction, a certificate of reasonableness is not required[10].

Appeals from (i) High Court of Justice in England & Wales; and (ii) High Court of Justice in Northern Ireland

1.12  In certain cases, and subject to certain conditions, an appeal lies direct from the High Court in England and Wales or in Northern Ireland to the House of Lords. A certificate of the High Court must first be obtained and the leave of the House of Lords then sought and given before the appeal may proceed (see direction 6)[11]. No application may be made to the House of Lords without the certificate of the High Court.

Civil contempt of court cases

1.13  In cases involving civil contempt of court, an appeal may be brought under s 13 of the Administration of Justice Act 1960[12]. Leave to appeal is required and an application for such leave must first be made to the court below. If that application is refused, a petition for leave to appeal may then be presented to the House of Lords. Where the decision of the court below is a decision on appeal under the same section of the same Act, leave to appeal to the House of Lords is only granted if the court below certifies that a point of law of general public importance is involved in that decision and if it appears to that court or to the House, as the case may be, that the point is one that ought to be considered by the House. Where the court below refuses to grant the certificate required, a petition for leave to appeal is not accepted for presentation to the House.

Admissibility of petitions

1.14  Leave to appeal to the House of Lords is subject to conditions imposed by Parliament in statute. The following types of petition are excluded by statute from the House's jurisdiction:

(a)  petitions for leave to appeal from a refusal by the Court of Appeal to grant leave to appeal to that court from a judgment or order of a lower court, or from any other preliminary decision of the Court of Appeal in respect of a case in which leave to appeal to the Court of Appeal was not granted[13];

(b)  petitions for leave to appeal brought by a petitioner in respect of whom the High Court has made an order under s 42 of the Supreme Court Act 1981 (restriction of vexatious legal proceedings), except a petition for leave to appeal against the s 42 order itself;

(c)  petitions for leave to appeal from a decision of the Court of Appeal on any appeal from a county court in any probate proceedings[14];

(d)  petitions for leave to appeal from a decision of the Court of Appeal on an appeal from a decision of the High Court on a question of law under Part III of the Representation of the People Act 1983 (legal proceedings)[15].

1.15  All petitions for leave to appeal, including those that are prima facie inadmissible under direction 1.14, are accepted by the Judicial Office for presentation to the House and are referred to an Appeal Committee, provided direction 1.16 is complied with.

1.16  No petition for leave to appeal may be considered by an Appeal Committee unless:

(a)   the petition is properly served on the respondents (see direction 3.12);

(b)   all the required documents are supplied to the Judicial Office (see directions 3.13 and 4.2); and

(c)   the prescribed fee is paid or a form of waiver lodged (see directions 3.16-3.17).

1.17  If the Appeal Committee finds a petition to be inadmissible, the Judicial Office informs the petitioner in writing of the Committee's decision. The European Court of Human Rights accepts this letter (accompanied by the Committee's report and the House of Lords Business[16] in which the report is recorded) as setting out the jurisdiction of the House of Lords in the litigation, for the purpose of determining whether the petitioner has satisfied the requirement, laid down by Article 35 of the European Convention on Human Rights, that all domestic remedies must be exhausted before an appeal can be made to the Strasbourg Court.

1.18  Under the rule in Taylor v Lawrence[17] the Court of Appeal can in exceptional circumstances reopen an appeal or application for permission to appeal after it has given a final judgment. If the Court of Appeal refuses an application to reopen a previously concluded appeal or application for permission to appeal, no application may be made to the House of Lords for permission to appeal against that refusal[18].       

Judicial review: civil matters

1.19  An application for permission to apply for judicial review is made to the Administrative Court (part of the Queen's Bench Division of the High Court). If the judge of the Administrative Court refuses the application without a hearing, an application can be made for the decision to be reconsidered at a hearing. Where permission to apply for judicial review has been refused by the Administrative Court after consideration of the papers and after reconsideration at an oral hearing, the applicant may appeal against the refusal of permission. Such an appeal must be lodged in the Court of Appeal within 7 days. For such an appeal to be successful, the applicant needs to be granted both i) permission to appeal against the Administrative Court's determination; and ii) permission to apply for judicial review.

1.20   If the Court of Appeal refuses permission to appeal to it against the decision of the Administrative Court refusing permission to apply for judicial review, there is no appeal to the House of Lords. The House of Lords has no jurisdiction to receive such an appeal[19]. However, if the Court of Appeal (a) grants permission to appeal to it against the Administrative Court's refusal of permission to apply for judicial review, but then (b) itself refuses permission to apply for judicial review, the House of Lords does have jurisdiction to hear an appeal against that refusal[20].

Cross-appeals

1.21  See direction 30.

Public funding/legal aid

1.22  See direction 41.

Counsel

1.23  Petitioners and respondents to a petition for leave to appeal may instruct leading or junior counsel, but on taxation (assessment of costs) the House allows only junior counsel's fees for any stage of a petition for leave to appeal, even if a public funding or legal aid certificate provides for leading counsel. The only exception to this practice is where leading counsel who conducted the case in the court below are instructed by the Legal Services Commission or legal aid authorities to advise on the merits of an appeal.


1   For appeals "in a criminal cause or matter", see the Red Book of Practice directions applicable to criminal appeals (January 2007 edition) available from the Judicial Office and on www.parliament.uk. Back

2   The orders are made pursuant to the Appellate Jurisdiction Act 1876 s 11. Back

3   Administration of Justice (Appeals) Act 1934 s 1(1); Judicature (Northern Ireland) Act 1978 s 42. Back

4   For form of petition, see Appendix A, Form 1. Back

5   Court of Session Act 1988 s 40(1)(a). The right of appeal may however be restricted or excluded by statute e.g. Transport Act 1985 s 117, Sch 4, para 14(1).  Back

6   For the purposes of Standing Order IV the word "counsel" includes any enrolled solicitor having a right of audience in the House of Lords. Back

7   Court of Session Act 1988 s 40(1)(a). Back

8   Court of Session Act 1988 s 40(1)(b). Back

9   e.g. Aircraft and Shipbuilding Act 1977 s 9; Tribunals and Inquiries Act 1992 s 11. Back

10   Standing Order IV. Back

11   Administration of Justice Act 1969 ss 12-15. Back

12   Or, in Northern Ireland, under Judicature (Northern Ireland) Act 1978 s 44. Appeals involving criminal contempt of court are subject to the Practice directions applicable to Criminal Appeals (January 2006 ed). Back

13   See the decisions of the House in Lane v. Esdaile [1891] AC 10; also R v. Secretary of State for Trade and Industry ex parte Eastaway [2000] 1WLR 2222; Access to Justice Act 1999 s 54, and Part 52 Civil Procedure Rules (as amended). No appeal lies to the House from incidental decisions of the Court of Appeal which may be called into question by rules of court: Supreme Court Act 1981 s 58 (as amended by Access to Justice Act 1999 s 60). Back

14   County Courts Act 1934 s 82. Back

15   Representation of the People Act 1983 s 157(1). Back

16   The record of the House's proceedings. Back

17   [2002] EWCA Civ 90. Back

18   Civil Procedure Rules, r 52.17.  Back

19   The House's decision in R v Secretary of State for Trade and Industry, ex parte Eastaway [2000] 1 WLR 2222 applying the principle in Lane v Esdaile [1891] AC 10. Back

20   The House's decision in R v Hammersmith and Fulham LBC, ex parte Burkett [2002] 1WLR 1593. Back


 
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