Appeals process

We have several tiers to our legal system. Most of our cases start off in the Administrative Court, which is a branch of the High Court. The appeal route from there is to the Court of Appeal and thence to the Supreme Court.

Court of Appeal

In most cases permission to appeal to the Court of Appeal is required. The lower court may grant permission, but this is unusual as it is a way of saying that the judge accepts the 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 21 days of the decision to be appealed along with grounds of appeal. This is relatively easy to do, as the information required is not great. Nevertheless, full documentation and a skeleton argument in support have to be provided shortly after that.

In cases where permission for judicial review is refused by the High Court, the Appellant's Notice must be lodged within one week (7 days).

Refused permission

A decision is made on paper by a Lord/Lady Justice of Appeal.  If the decision is to refuse permission, one can renew the application to an oral hearing within 7 days of the order refusing permission.  That will usually be before one, but sometimes two, Lord/Lady 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 or claim costs - 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 that stage, that is the end of the matter.  One cannot take it further to the Supreme Court because you will have been refused twice - in 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 Court of Justice of the European Union.  In practice in such cases the Lord/Lady Justice(s) hearing the application for permission will usually adjourn the matter to a full three person court for further consideration.

Granted permission

If permission is granted, the appeal will be heard, usually before a three-person court. Usually, no new evidence is allowed as the facts have been available at the High Court stage, but sometimes it is possible to file fresh evidence. The appeal stage therefore tends to be quicker and cheaper than the High Court stage.

As in the High Court, judgment may be given on the spot, though usually it is handed down. Increasingly, the Court of Appeal will either give one judgment on behalf of the Lord/Lady Justices, or two will simply agree with one lead judgment. This unanimity is less interesting than previous practice where the judges had different perspectives. There is also again argument about costs and permission to appeal to the Supreme Court (which is almost invariably refused).  This may be done in Court or, frequently, on paper.

Supreme Court of the United Kingdom ('Supreme Court')

A dissenting judgment in the Court of Appeal could be a good route to getting permission to appeal to the Supreme Court from the Court of Appeal direct. We have successfully obtained such permission once (and went on to win - the Lappel Bank case).

Usually it is necessary to apply to the Supreme Court for permission to appeal. An "Appeals Committee" of three Supreme Court Justices will decide whether to grant permission to appeal or not.  Permission is given extremely sparingly, usually in relation to cases involving important points of principle.

However, the Supreme Court is obliged to take a case where it involves a European Community law point that is not acte clair, so we often approach appeals to the Supreme Court with more hope than many prospective appellants because many of our cases involve such points.

The other parties may be asked to provide observations before the Appeals Committee makes up its mind. If still undecided, it can order a short oral hearing. If permission is granted, the procedure in the Supreme Court is elaborate and relatively expensive.  But - if you are the appellant - you are lucky to be there.

We have had several cases go to the Supreme Court (or its predecessor, the House of Lords). The Lappel Bank case was referred by the House of Lords to the CJEU which found in our favour. Similarly the Barker case, concerning the old Crystal Palace site which, together with Wells, is of great importance to the application of environmental impact assessment (EIA) rules in the planning system.  Another case Mellor has been important for clarifying the reasoning required when public authorities do not require EIA (and by extension it is good for reasoning and accountability generally).

We successfully defended a decision of the Court of Appeal in relation to EIA of old minerals permissions in the Preston under Scar case.

We successfully appealed Berkeley which has proved crucial to effective implementation of the EIA directive.

We successfully defended an attempt by the Secretary of State to obtain leave to appeal Huddleston to the House of Lords.

We won Burkett, clarifying when time starts to run for making judicial review applications which has made a huge improvement to the fairness of public law work in our view.

We did lose in Edwards, a case relating to the major cement works at Rugby, where it was claimed that there should be EIA in relation to a major change of operations.  The House of Lords found against us, but a sequel to the case which went to the CJEU is important in relation to the current approach to costs of judicial review proceedings in environmental cases.

References to the European Court of Justice

See the comment at the end of the Judicial Review process section.