CA-2025-001983 - [2025] EWCA Civ 1311

The starting point is the wording and structure of CPR 52. It is divided into seven parts. The material parts, for present purposes are parts 1 to 4. Part 1 is headed “1. Scope and Interpretation”. CPR 52.1(3) defines an appellant and a respondent in the following way:

“(d)

‘appellant’ means a person who brings or seeks to bring an appeal;

(e)

‘respondent’ means –

(i)

a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

(ii)

a person who is permitted by the appeal court to be a party to the appeal;”

CPR 52.1(3) also defines an appeal notice and says it “means an appellant’s notice or respondent’s notice”.

Part 2 of CPR 52 is headed “II. Permission to Appeal – General”. CPR 52.3(1) provides that “An appellant or respondent requires permission to appeal”.

Part 3 of the CPR deals with four specific types of appeal. It is headed “III. Permission to appeal – Judicial Review Appeals, Planning Statutory Review Appeals and Appeals from the Employment Appeal Tribunal.” It includes CPR 52.8 which provides:

“Judicial review appeals from the High Court

52.8

(1)

Where permission to apply for judicial review has been refused at a hearing in the High Court, an application for permission to appeal may be made to the Court of Appeal except where precluded by section 18(1) of the Senior Courts Act 198.

(2)

Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court on the papers or where permission to apply for judicial review has been refused on the papers and recorded as being totally without merit in accordance with rule 23.12, an application for permission to appeal may be made to the Court of Appeal.

(3)

An application under paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review.

(4)

An application under paragraph (2) must be made within 7 days of service of the order of the High Court refusing permission to apply for judicial review.

(5)

On an application under paragraph (1) or (2), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.

(6)

Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (5), the case will proceed in the High Court unless the Court of Appeal orders otherwise.

Part 4 of CPR 52 is headed “IV. Additional Rules”. CPR 52.12 is headed “Appellant’s notice” and provides that:

“52.12

(1)

Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice.

(2)

The appellant must file the appellant’s notice at the appeal court within—

(a)

such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b)

where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.

(3)

Subject to paragraph (4) and unless the appeal court orders otherwise, a sealed copy of the appellant’s notice must be served on each respondent—

a)

as soon as practicable; and

(b)

in any event where it is served by the appellant not later than 14 days,

after it is sealed.”

CPR 52.13 is headed “Respondent’s notice” and provides so far as material:

“52.13

(1)

A respondent may file and serve a respondent’s notice.

(2)

A respondent who—

(a)

is seeking permission to appeal from the appeal court; or

(b)

wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court,

must file a respondent’s notice.

(3)

Where the respondent seeks permission from the appeal court it must be requested in the respondent’s notice.

(4)

A respondent’s notice must be filed within—

(a)

such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or

(b)

where the court makes no such direction, 14 days after the date in paragraph (5).

(5)

The date referred to in paragraph (4) is—

(a)

the date the respondent is served with the appellant’s notice where—

(i)

permission to appeal was given by the lower court; or

(ii)

permission to appeal is not required;

(b)

the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or

(c)

the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.

(6)

Unless the appeal court orders otherwise, a respondent’s notice must be served on the appellant and any other respondent—

(a)

as soon as practicable; and

(b)

in any event not later than 7 days,

after it is filed.

…..”

Ms Ammori wishes to challenge part of the order of the Judge. In particular, she wishes to challenge paragraph 5(a) of the order which refused permission to apply for judicial review on grounds 1, 3, 4, 5 and 6. A decision refusing permission is a decision that can be the subject of an appeal: see R v Secretary of State for Trade and Industry ex p. Eastaway [2000] 2 WLR 2222 at page 2224A-G. That is reflected in the provisions of CPR 52.8 which provide that “where permission to apply for judicial review has been refused at a hearing in the High Court” then “an application for permission may be made to the Court of Appeal”. Although CPR 5.2.8 refers to permission to apply for judicial review, it must also apply when permission to apply is refused on some grounds but granted on others. It is implicit in CPR 54.12 that permission can be granted on certain grounds only. That rule provides that where permission to apply for judicial review is granted “on certain grounds only”, the claimant may not appeal but may request reconsideration of that decision at an oral hearing in the High Court. CPR 52.8(3) also deals with the time within which an application for permission in such cases must be made. It must be made within seven days of the decision of the High Court refusing to give permission to apply for judicial review.

Our analysis is that any application for permission to appeal against a decision of the High Court refusing permission to apply for judicial review on a particular ground or grounds must be brought within the time-limit provided by CPR 52.8. We do not consider that that requirement can be circumvented, or the time limit avoided, by seeking to include the application in a respondent’s notice and seeking to argue that the time limit for service of that notice is 14 days after service of an appellant’s notice or of notification of the grant of permission as provided for by CPR 52.13 rather than within the seven days after the decision of the High Court refusing of permission to apply, as provided for by CPR 52.8. We reach that conclusion for the following reasons.

First, CPR 52.8 makes specific provision dealing with applications for permission to appeal where permission to apply for judicial review has been refused by the High Court. CPR 52.8(3) sets out the time limit for doing so. It sets out the powers of the Court when granting the application. The Court may grant permission to appeal or, instead, may grant permission to apply for judicial review: see CPR 52.8(5). If the Court does the latter, CPR 52.8(6) provides that the case will then proceed in the High Court unless the Court of Appeal otherwise directs.

Furthermore, that conclusion is reinforced by the structure of CPR 52 taken as a whole. Part 3 deals with specific categories of cases including applications for permission to appeal against the refusal by the High Court of permission to apply for judicial review. Part 4 includes as additional rules. We do not consider that the additional rules were intended to provide a means of applying for permission to appeal in the specific case of refusals to apply for judicial review. Rather the additional rules deal with the generality of appeals, not those specific cases dealt with by Part 3 of CPR 52.

Secondly, a situation where CPR 52.8 applies to certain cases involving applications for permission to appeal against a refusal of permission to apply for judicial review but not others would have arbitrary and potentially unworkable results. In most cases, a claimant for judicial review will have been refused permission to apply for judicial review on some or all of the grounds. The claimant alone will be seeking to appeal the order of the court. It is unclear whether it is theoretically possible for a defendant to appeal against a decision granting permission to apply for judicial review but in practice that does not happen and any application for permission to appeal in those circumstances is likely to be refused as, permission having been granted, the appropriate course is for the defendant to resist the claim in the High Court. In such cases, therefore, only the claimant will be making an application for permission to appeal and CPR 52.8 applies and any application for permission must be made within seven days of the decision refusing permission to apply for judicial review.

There are cases where the High Court may make an order which a defendant could, in principle, seek to appeal. The High Court may reject arguments by the defendant that the matter is not justiciable or amenable to judicial review, or, as here, that there is an adequate alternative remedy and there is no need to proceed by way of judicial review or, possibly, that the claim was brought out of time (or that an extension of time should not have been granted). The High Court may rule on that as a preliminary issue and a defendant may seek to appeal that part of the order. The defendant has 21 days from the date of the decision on the preliminary issue to appeal: see CPR 52.12. If the defendant does not appeal, the claimant cannot be a respondent in the Court of Appeal and the claimant cannot file an application for permission to appeal in a respondent’s notice. There is no appeal by, or appellant’s notice from, the defendant for the claimant to respond to. In addition, CPR 52.13 fixes the time limits for a respondent’s notice by reference to the date when the respondent was served with the appellant’s notice, or where the respondent is notified that permission to appeal has been granted (or that the application for permission to appeal, and the appeal itself, are to be heard together): see CPR 52.13(4) and (5). Where there has been no application for permission to appeal by the defendant in the court below, those provisions are not capable of regulating any application for permission to appeal by the claimant in the court below. There is no event which will determine the start of the 21-day period for appealing. If the claimant did not make an application for permission within seven days of the decision of the High Court refusing permission to apply for judicial review, the claimant would be out of time.

Furthermore, given that there may be no appeal by the defendant, the claimant will have to file the application for permission to appeal within seven days of the decision refusing permission to apply for judicial review if he or she wants to be sure that they are within time for making an application for permission. The claimant will not necessarily know whether the defendant will seek permission to appeal. If the defendant does not appeal, the claimant cannot then seek permission to appeal in a respondent’s notice and will be out of time to file an appellant’s notice.

Those factors are all strongly indicative of the fact that CPR 52.13 is not intended (and in many cases could not operate) to set the time limit within which an application for permission to appeal against a refusal by the High Court of permission to apply for judicial review. That time limit is fixed in such cases by CPR 52.8.

The question then is whether there is an exception in situations such as the present where the High Court decided a preliminary issue against the defendant and the defendant did seek permission to appeal against that issue. We can see no logical reason why, in that situation, the drafters of CPR 52 would have intended to make such an exception in order to give the claimant a right to seek permission to appeal (or, perhaps more accurately, for such a right to revive) because of the fact that the defendant can, and has, appealed against a different part of the order of the High Court. There is no link in substance between the preliminary issue on which a defendant will have appealed and the refusal of the High Court to grant the claimant permission to apply for judicial review. We do not consider it is accurate to characterise the situation, as Mr Husain did, as one where the claimant has had a partial win (by being granted permission on certain grounds) and is entitled “to sit on that win” and if the defendant does apply for permission to appeal, for the claimant then to be able to apply for permission to apply in relation to other grounds. The fact of the matter is that the claimant, here Ms Ammori, has been refused permission to apply for judicial review on grounds 1, 5, 6 and 7. If she wishes those grounds to form part of the judicial review, she has to make an application for permission to appeal. The time limit for governing such applications is provided for by CPR 52.8.

Mr Husain also submitted that Ms Ammori is the respondent and so CPR 52.13 applies, and she must include the application for permission in a respondent’s notice. We do not consider that Ms Ammori is a respondent in relation to the refusal of permission to apply for judicial review. She is a “person who brings or seeks to bring an appeal” in relation to those matters. She is a respondent in that she is “a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal”. But the appeal is in relation to the preliminary issue as to whether there was an adequate alternative remedy available so that permission to apply for judicial review should be refused as a matter of discretion. In truth, however, it does not matter for these purposes whether Ms Ammori is an appellant or a respondent. She can make an application for permission in an appeal notice which is defined as “an appellant’s or a respondent’s notice”. The real question is whether the time limit for making an application for permission in such cases is governed by CPR 52.8 or CPR 52.13. For the reasons given, we consider that it is governed by CPR 52.8. A claimant will, therefore, have to file an appeal notice containing the application for permission within 7 days of the decision of the judge refusing permission to apply for judicial review. That will usually be an appellant’s notice. If for some reason, a defendant had applied for permission to appeal against a decision on a preliminary issue within seven days of the date on which a judge also refused permission to apply for judicial review, and if document described as a respondent’s notice containing an application for permission to appeal against a refusal of permission was served within seven days of the refusal, the Court of Appeal could either treat that as an appeal notice served within time or, if necessary, could direct that the respondent’s notice containing the application for permission to appeal stand as an appellant’s notice. Those are procedural matters governing the documents used to initiate proceedings in the Court of Appeal. They should not be allowed to detract from the real issue which is whether the time for making an application for permission to apply for judicial review is governed by CPR 52.8.

Finally, we have noted that CPR 52.12, which deals with appellants’ notices, is made specifically subject to CPR 52.8, whereas CPR 52.13 is not. We do not consider this to be of significance. The reason is this. A claimant seeking permission to appeal against a refusal of permission to apply for judicial review will be the appellant and will be using an appellant’s notice and so the drafters of the CPR 52 made it clear the general time limits in CPR 52.12 were subject to CPR 52.8. By contrast, CPR 52.13 is not intended to be the route by which applications for permission in such cases is sought. The general time limits would not, therefore, apply to such applications and the natural inference is that it was not considered necessary to make CPR 52.13 subject to 52.8.

For those reasons, the application by Ms Ammori for permission to appeal against the decision of the High Court refusing permission to apply for judicial review on grounds 1, 5, 6 and 7 was brought out of time. It should have been brought within seven days of the decision of the Judge, made on 30 July 2025. It was not made until 3 September 2025.