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Proposal 46
Leave to appeal from a decision itself given on appeal should generally not be granted
unless the case raises an important point of principle or practice or some other compelling
reason exists for the grant of leave.
Interim Report paras 535-539
22.5
Tiers of appeals
The intention of Proposal 46 is to exclude second appeals to a third-tier of court
unless the case raises important points of principle. The substantial impact of such a
rule (introduced in England and Wales by section 55(1) of the Access to Justice Act
1999) was described by Brooke LJ in Tanfern Ltd v Cameron-MacDonald (Practice
Note) [2000] 1 WLR 1311 at 1319 §42, as follows :-
"This reform introduces a major change to our appeal procedures. It will no longer be
possible to pursue a second appeal to the Court of Appeal merely because the appeal is
"properly arguable" or "because it has a real prospect of success." The tougher rules
introduced by a recent Court of Appeal practice direction for "second tier appeals" related
only to cases where a would-be appellant had already lost twice in the courts below: see
Practice Direction (Court of Appeal (Civil Division)) [1999] 1 WLR 1027, 1036, para 2.19.1.
The new statutory provision is even tougher - the relevant point of principle or practice must
be an important one - and it has effect even if the would-be appellant won in the lower court
before losing in the appeal court. The decision of the first appeal court is now to be given
primacy unless the Court of Appeal itself considers that the appeal would raise an important
point of principle or practice, or that there is some other compelling reason for it to hear this
second appeal."
In Hong Kong, where the third tier of court is the Court of Final Appeal, the principle
already operates in respect of appeals requiring leave, both from interlocutory and
final judgments of the Court of Appeal.
Proposal 46 therefore does not need to
concern itself with the Court of Final Appeal.
The Court of Appeal is potentially a third-tier tribunal on a second appeal if a matter
was first decided on the merits by the master, then appealed to the judge and then
taken on further appeal to the Court of Appeal. The effect of Proposal 46 would
therefore be to restrict the right of appeal from the judge to the Court of Appeal in
cases where the application had first been decided by a master.
Notes
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