CR-2025-001323 - [2025] EWHC 2297 (Ch)

Pursuant to section 12(1) of the AJA, a leapfrog certificate may be granted where the judge is satisfied:

“(a)

that the relevant conditions are fulfilled in relation to his decision in those proceedings or that the conditions in subsection (3A) (“the alternative conditions”) are satisfied in relation to those proceedings, and

(b)

that a sufficient case for an appeal to the Supreme Court under this Part of this Act has been made out to justify an application for leave to bring such an appeal…”

The “relevant conditions” are specified in section 12(3) of the AJA, which provides that:

“…for the purposes of this section the relevant conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in that decision and that point of law either –

(a)

relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or

(b)

is one in respect of which the judge is bound by a decision of the Court of Appeal or of the Supreme Court in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the Supreme Court (as the case may be) in those previous decisions.” (Footnote: ³)

Section 12 is qualified by section 15 of the AJA. Relevantly, section 15(3) provides as follows:

“Where by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or of the Court of Appeal, no certificate shall be granted under section 12 of this Act in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave.”

In A v B [2022] EWHC 2786 (Comm), HHJ Pelling KC summarised the approach to be taken on an application for a leapfrog certificate as follows (at [15]):

“As will be apparent, therefore, the test which has to be satisfied is, first of all, a requirement that what are described as the relevant conditions must be satisfied, and secondly, that a sufficient case for an appeal to the Supreme Court must be made out. Once those conditions are satisfied then the court has a discretion, but not an obligation, to grant such a certificate as is apparent by the use of the word “may” in the concluding part of the section.”

As to the requirement for a sufficient case for an appeal to the Supreme Court, in A v B it was also explained (at [18]) that it must be shown that:

“there is a realistically arguable prospect of the Supreme Court taking the view that those decisions should be qualified or overturned in relation to the issues that arise”.