How Do Courts Decide Whether to Grant Leave to Appeal?

When a court makes a decision, the losing party does not automatically have the right to have that decision re‑heard by a higher court. In most situations in England and Wales, you must first ask the court for permission to appeal, often called leave to appeal, before the appeal can proceed. This requirement exists in both civil and criminal legal systems to ensure that courts' limited time and resources focus on cases where review is justified.

This article explains how courts decide whether to grant leave to appeal, the legal tests applied, procedural requirements, time limits, and practical points for anyone considering an appeal. It is written for solicitors, students, and members of the public seeking clear, accessible guidance on this important aspect of UK law.

1. What Is Leave to Appeal?

Leave to appeal is the formal permission a court must give before an appeal can be heard in most cases. It is a filtering mechanism used to:

• prevent trivial or unmeritorious appeals;
• encourage finality in litigation; and
• ensure that appellate courts concentrate on significant issues.

You must usually obtain leave to appeal before your appeal can be considered on its merits. If leave is refused, the appeal process cannot go forward (subject to limited exceptions and further applications to a higher court).

2. When Is Permission Required?

Leave to appeal is generally required for:

• Most civil appeals from the High Court, County Court, Family Court, or tribunal decisions, unless a statute gives an automatic right.
• Criminal appeals from the Crown Court to the Court of Appeal.

However, there are some exceptions where permission is not needed:

• certain procedural orders (for example, refusal of habeas corpus);
• appeals from a magistrates' court to the Crown Court in criminal cases (this is an appeal as of right); and
• specific statutory appeals where the law allows direct appeal without prior permission.

The precise rules are contained in the Civil Procedure Rules (Part 52) for civil matters and specific statutory schemes for criminal appeals.

3. The Legal Tests for Granting Leave to Appeal

When a court considers an application for leave, it applies a legal test. The exact test depends on the stage of the appeal and the type of case.

Civil Cases

In civil appeals (for example, contract, tort, probate, family or administrative decisions), the civil procedure rules set out the general test:

• Real prospect of success - the court must be satisfied that the appeal would have a real chance of succeeding on the merits.
• Other compelling reasons - if there is no real prospect of success, permission may still be granted if there is another compelling reason for the appeal to be heard.

This means that simply disagreeing with the judge is not enough. You must show a plausible legal or factual basis for the appeal.

Criminal Cases

For criminal appeals from the Crown Court to the Court of Appeal, the test is similar in principle: the appellant must show that there is a real possibility that the conviction is unsafe or that the sentence is wrong in law or manifestly excessive. This reflects the seriousness of criminal appeals.

Second Appeals and Higher Courts

If you are seeking to appeal to a higher court (for example, the Court of Appeal after another appeal or the Supreme Court), additional criteria may apply. For example:

• the appeal must raise an important point of principle or practice;
• there must be a real prospect of success and the point has wider public or legal significance.

For the Supreme Court, permission is only granted where there is a point of law of general public importance, and the court considers the appeal should be heard to resolve that point.

4. How Do Courts Assess the Test?

In deciding whether to grant leave, courts will look at the:

• grounds of appeal - the key reasons why the decision is said to be wrong;
• evidence presented to support those grounds;
• legal arguments or errors in the original decision; and
• wider implications (for example, whether the issue affects the application of law beyond the case in question).

Typically, the judge will make the decision on the papers, but the court may sometimes hear oral submissions on the application.

5. Procedural Considerations

Time Limits

Time limits for applying for leave to appeal are strict:

• In many civil matters, you must apply for permission within 21 days of the decision you want to appeal.
• In some appeals, including certain tribunal decisions or appeals involving human rights points, the time limit may be 28 days.
• For Supreme Court permission, an application must usually be made within 28 days of refusal by the court below.

If you miss a deadline, you may ask the court to extend time, but this requires good reasons and is not guaranteed.

Where to Apply

• If the decision was made by a lower court, you normally apply to that court for permission.
• If permission is refused, you can often renew the application to the next higher court (for example, from the High Court to the Court of Appeal).

Documentation Required

Applications usually involve filing an appellant's notice and supporting documents, such as:

• grounds of appeal;
• a copy of the original decision;
• a summary of relevant facts and law.

6. Practical Considerations Before Applying

Before seeking leave to appeal, it is important to:

• Check that you have proper grounds for an appeal - courts will not grant permission for disagreements based on general dissatisfaction.
• Understand the potential consequences - losing an appeal can result in costs orders against you.
• Consider whether legal advice is appropriate - solicitors or barristers can help shape your grounds and prepare the documents correctly.

7. Common Questions

Q: What happens if my application for permission is refused?
A: You can often renew the application to a higher court (for example, if refused by a county court, take it to the Court of Appeal). But if a higher court refuses, in many cases that is final with no further appeal on permission.

Q: Does permission guarantee a full hearing?
A: No. Permission means the appeal can be heard - not that it will succeed. The full appeal hearing considers the substantive merits.

Q: Can new evidence be introduced?
A: Generally not without permission. New evidence must be shown to be necessary and justified.

Summary

Courts in England and Wales decide whether to grant leave to appeal by applying specific legal tests focused on:

• the real prospect of success of the appeal;
• the presence of compelling reasons to hear the case; and
  -, for higher courts, whether the appeal raises important legal questions.

Strict time limits and procedural requirements apply. Permission is a threshold safeguard, ensuring appellate courts devote their time to cases with substantive merit or broader legal significance. It is advisable to carefully evaluate your grounds and the court rules before making an application, and to seek legal advice if needed.