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22.3
Threshold test for granting leave
Assuming that a leave requirement is to be introduced, the threshold test for obtaining
leave must be established. Since the Working Party has recommended that the leave
condition should only apply to interlocutory appeals, the focus is on the test to be met
before an interlocutory appeal from a CFI judge is allowed to go forward to the Court
of Appeal.
The respondents to the consultation were generally agreed that some criterion or
criteria for the grant of leave to appeal ought to be spelt out in the rules. However,
there were varying views as to how high the threshold should be and what words
should be used to express the test.
Proposal 44 canvasses a test requiring the court to be satisfied that the appeal would
have "a real prospect of success."
The Bar Association and the Law Society, and a
number of the other respondents,
expressed support for that formula. However,
given its ambiguity and the uncertainty of how it would operate in practice (previously
discussed in relation to the summary disposal of proceedings
), it is not surprising
that these respondents were not necessarily all attributing the same meaning to the
phrase.
(a)
As previously pointed out, in England and Wales it has been taken to mean the
opposite of "fanciful", which, if adopted in the leave to appeal context, would
import a very low threshold for the grant of leave. An appeal while not
"fanciful" may be little more than just arguable and quite likely to fail.
(b)
On the other hand, some respondents
appear to have thought that "a real
prospect of success" meant something like "a real likelihood of success" and so
suggested that this was too high a threshold.
Notes
The other criterion, namely, that there should be "some other compelling reason why the appeal
should be heard" involves separate considerations not under discussion.
Including, the APAA, the HKMLA, the BCC, one set of barristers' chambers and one firm of
solicitors.
Section 10.2 above.
Possibly the LAD and a firm of solicitors.
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