Permission to Appeal: The Gatekeeping Test That Decides Who Gets a Second Hearing
Most appeals in England and Wales never get off the ground because a judge has to grant permission first, and understanding that filter matters as much as understanding the appeal itself.
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Why permission exists
An appeal is not an automatic right in most cases. Before a case can be reheard by a higher court, someone usually has to persuade a judge that it deserves a second look. This is the permission stage, sometimes called “leave to appeal”, and it exists to stop the court system being clogged with people who are simply unhappy with the outcome rather than able to point to something legally wrong with it.
The permission filter applies across civil, family and, in a different form, criminal proceedings. It sits apart from the general question of how the appeal itself is structured or which court hears it. The focus here is on what the gatekeeping test actually asks, who decides it, and why so many applications fail at this first hurdle.
The basic test in civil cases
In civil litigation, a judge considering whether to grant permission to appeal generally asks one of two things: does the appeal have a real prospect of success, or is there some other compelling reason why it should be heard, such as a point of wide public importance or inconsistency in how lower courts have treated a similar issue. “Real prospect of success” is a deliberately modest threshold. It does not mean the appeal is likely to win, only that it is more than fanciful. Even so, a large proportion of applications are refused because the judge concludes the original decision was a legitimate exercise of judgement that fell within the range of reasonable outcomes, even if another judge might have decided it differently.
Permission can be sought from the judge who made the original decision immediately after judgment, or from the appeal court itself if the first request is refused or not made in time. Asking the original judge is often quicker but some practitioners prefer to go straight to the appeal court, particularly if the complaint is about that judge’s own reasoning.
Why appeals are not a rerun of the trial
A common misunderstanding is that an appeal gives a dissatisfied party a chance to put their case again, perhaps with better evidence or a different emphasis. It does not. Appeal courts generally review whether the lower court made an error of law, applied the wrong legal test, reached a conclusion no reasonable court could have reached on the evidence, or acted outside its powers. They are usually reluctant to interfere with findings of fact made by a judge who heard the witnesses directly, because that judge was in the best position to assess credibility. New evidence is admitted only in limited circumstances, broadly where it could not have been obtained with reasonable diligence for the original hearing, would probably have had an important influence on the result, and is credible.
This distinction explains why permission is refused so often. Many applicants are really asking for a second opinion on the facts rather than identifying a genuine legal flaw.
Second appeals and the higher bar
Where a case has already been through one level of appeal and a party wants to go further, for example from a lower appeal court towards the Court of Appeal, the test tightens. A second appeal typically needs to raise an important point of principle or practice, or there needs to be some other compelling reason for the higher court to hear it. This reflects a policy of finality: litigation has to end somewhere, and the system is designed to discourage cases being pushed upward indefinitely on the chance that a different panel might see it differently.
Criminal appeals work differently
In criminal cases the structure diverges. A defendant appealing a conviction or sentence from the Crown Court generally needs permission from the Court of Appeal (Criminal Division), usually after a single judge has considered the papers. Appeals from the magistrates’ court can sometimes go to the Crown Court as a full rehearing, which is a different mechanism, or by way of case stated or judicial review on points of law to the High Court. The language and tests vary, but the underlying principle is the same: someone has to screen out appeals with no realistic merit before scarce court time is committed to them.
Time limits and formal requirements
Permission applications are time-limited, and the time limit usually runs from the date of the original decision rather than from when a party decides to challenge it. Courts can extend time in limited circumstances but will weigh the length of the delay, the reason for it, and whether the other side would be prejudiced. Anyone considering an appeal should treat the deadline as the first and most urgent practical question, often before fully developing the legal grounds, because missing it can be fatal regardless of how strong the underlying argument is.
What this means in practice
For anyone involved in litigation, the permission stage is where realistic expectations should be set. A strong sense of grievance about a result is not the same as a viable ground of appeal. Solicitors and barristers advising on prospects will usually focus first on whether an identifiable error of law or process can be articulated, because that is what a permission judge is looking for, not a general sense that the decision was wrong.
Where to check current detail
Procedural rules, forms and time limits change periodically, so always check the current position before acting.