England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(District Judge Ackroyd)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th May 2000

LORD JUSTICE BROOKE:

1. This is an application made by the claimants in curious circumstances. They brought an action against the defendants for unpaid rent in relation to a lease of cafe-restaurant premises in Petersfield which the defendants vacated in August 1996. The arrears of rent amounted to just over £20,000, together with interest of about £7,000 up to 23rd February 2000, the date of the hearing in the court below. The claim was originally started in the High Court before being transferred to the county court. It was allocated to the multi-track, and with the consent of the parties District Judge Ackroyd heard the claim and entered judgment for the defendants. His jurisdiction to try a multi-track claim was founded in paragraph 11.1(d) of Practice Direction 2B, which supplements CPR Part 2. The district judge then gave permission to appeal.
2. The claimants sought to lodge their appeal at the county court as an appeal to the circuit judge. Their solicitors were advised, however, that the designated civil judge had directed the court office at the Portsmouth County Court that since this was a multi-track case heard by the district judge by consent, the appeal must go to the Court of Appeal. They did not believe that this was correct, and when they sought advice from a lawyer in the Civil Appeals Office, she advised them to go back to the county court. They were also told that if they had tried to lodge an appeal at the Court of Appeal under these circumstances the papers would have been returned to them since the Court of Appeal did not have jurisdiction to hear the appeal.
3. When they raised the matter of the appeal with the county court again, the were told that the designated civil judge had commented on their further letter in these terms:

"I still think that the appeal in this case goes direct to the Court of Appeal. CCR 37 R6 deals with appeals from District Judges exercising their usual jurisdiction, and as appears from the notes extends and also covers cases within the concurrent trial jurisdiction of the County Court Judge and the District Judge. But this case does not come into either category: it was a multi-track case being heard by a District Judge with the agreement of the parties, ie he was in effect sitting as in the capacity of a Circuit Judge, and consequently an appeal from his decision cannot be entertained by another Circuit Judge. That is a view shared by other Designated Judges."

4. They therefore returned to the Court of Appeal in search of a home for their appeal. On this occasion the papers were referred to me, and I directed that the matter should be listed before a two-judge court as soon as possible so that there could be an authoritative judicial ruling as to which level of court the appeal should lie. I also requested the preparation of a bench memorandum by a lawyer in the Civil Appeals Office (to be shown to the claimants' solicitors) which would set out dispassionately the arguments for and against this court having jurisdiction to hear the appeal, since the matter, although important, did not appear to warrant the instruction of an amicus. We are very grateful for the assistance we received, both from this source, and from Mr Emmerson, who appeared for the claimants before us. Although we understand that the county court is now willing to list the matter as a substantive appeal, it appeared to us to be very desirable to give an authoritative ruling on the point.
5. This was a county court matter, and at the relevant time appeals from orders of district judges in the county court were governed by CCR Order 37 Rule 6 (as scheduled to the CPR). This provides that:

"(1) Any person affected by a judgment or final order of the District Judge may, except where he has consented to the terms of the order, appeal from the judgment or order to the Judge."

6. This rule was made under powers created by Section 77(1A) of the County Courts Act 1984 which was inserted by Schedule 17 to the Courts and Legal Services Act 1990. This sub-section enables rules of court to make provision:

"for any appeal from the exercise by a district judge, assistant district judge or deputy district judge of any power given to him by virtue of any enactment to be to a judge of a county court."

7. The situation was different so far as high court proceedings were concerned. RSC Order 58 Rule 2 (as scheduled to the CPR) provided for an appeal from certain decisions of masters or district judges to go to the Court of Appeal. These included a judgment, order or decision of a master given or made at trial on the hearing or determination of any cause, matter, question or issue tried before him (RSC O 58 r 2(1)(a)). RSC Order 58 Rule 3 was concerned with appeals from District Judges in the High Court:

(1) An appeal shall lie from any judgment, order or decision of a District Judge in any proceeding in any Division in the same circumstances and ... subject to the same conditions as if the judgment, order or decision were given or made by a Master or Registrar in those proceedings in that Division, and the provisions of these rules with respect to appeals shall apply accordingly."

8. When the Civil Procedure Rules were introduced on 26th April 1999, the Practice Direction which supplements RSC Order 58 Rule 2 provides in paragraph 1.1 that the provision was "not intended to alter the route of appeal from a decision of a Master or District Judge". Paragraph 1.2 states that where, before 26th April 1999, an appeal would have lain from a decision of a Master or District Judge to a Judge under RSC Order 58 Rule 1, "it shall continue to do so under the Civil Procedure Rules". Paragraph 1.3 of the Practice Direction states that:

"RSC Order 58 r 2(1)(a) provides that an appeal lies to the Court of Appeal from a decision of a Master or District Judge made 'at trial ... on the hearing or determination of any cause, matter, question or issue tried before him'. This provision only applies where the parties have given their consent for the Master of District Judge to try a case which has been allocated to the multi-track under Part 26 (see para 4.1 of the Practice Direction on Allocation of Cases to Level of Judiciary - Part 2B)."

9. If this action had been proceeding in a district registry of the high court, the designated civil judge at Portsmouth would have been correct to decline jurisdiction in these circumstances. These, however, were county court proceedings, and there is nothing in the county court rules to indicate a direct route of appeal from a district judge of the county court to the Court of Appeal in circumstances like these.
10. So far as county court procedure is concerned, the judgment of this court in Director-General of Fair Trading v Stuart [1991] 1 All ER 129 elucidates the position helpfully. In that case the registrar of the Salford County Court (who would now be described as a district judge) granted an injunction, to which the appellant raised no objection, restraining him from conducting any unfair trade practices. The appellant appealed to the Court of Appeal, relying on Section 42(2) of the Fair Trading Act 1973 which appeared to prescribe that route of appeal.
11. In his judgment, with which the two other members of the court agreed, Lord Donaldson of Lymington MR mentioned this submission, and said at p 130d-e:

"We have, of course, given due weight to that submission, but the error lies in failing to appreciate that an appeal to the judge of the county court is in the nature of an internal appeal, and it is only if the litigant wishes to appeal outside the county court, an appeal from the county court to another court, that s 42 comes into play and specifies that the court shall be the Court of Appeal rather than a Divisional Court or the Restrictive Trade Practices Court or any other court."

12. He added at p 130f-g:

"So, in summary, the appeal does lie to the judge under Ord 37 because that internal form of appeal within the county court is not the type of appeal to which s 42(2) of the Fair Trading Act 1973 applies. It applies to appeals from the county court to another court and such an appeal can only be brought after the internal remedies have been exhausted by an appeal from the registrar to the judge. I would so declare."

13. In my judgment, this accurately reflects the status of the appellate regime within the county courts up to 2nd May 2000, and there is nothing in any rule or practice direction to suggest that the regime would be any different because on a particular occasion a district judge was exercising the jurisdiction of a circuit judge (see Practice Direction 2B para 11.1(d)). This may seem to be an anomalous result, because if the district judge had been exercising similar jurisdiction as a district judge of the high court the appeal would indeed have lain to this court. It was always likely, however, that there would be some anomalies during the interim period of 12 months between the introduction of a modern, integrated set of civil procedure rules for first instance hearings and the introduction of a similar set of procedures in respect of appeals. This interim period is now at an end, and as will be seen from the second part of this judgment, appeal from the final decision of a district judge exercising jurisdiction in the multi-track in a case of this kind will in future lie direct to this court, whether the action assigned to the multi-track is proceeding in the county court or in the high court.
14. This is sufficient to dispose of the present matter, which must therefore proceed as an appeal to a circuit judge in the county court, with the costs of this application being costs in the appeal. On 2nd May 2000, however, a number of major changes were made to the arrangements for appeals in civil courts, and this judgment provides the opportunity to explain their effect. For the many points of detail, courts and practitioners will of course have to consult the instruments which introduced these changes. These are the Access to Justice Act 1999 ("the 1999 Act"), the Civil Procedure Rules ("CPR") Part 52 (together with CPR 27.12 - 27.13 and Section VIII of CPR Part 47), the Practice Direction supplementing CPR Part 52 ("PD 52") and the Access to Justice Act 1999 (Destination of Appeals) Order 2000 ("DO"). I have incorporated the effect of the Civil Procedure (Amendment No 2) Rules 2000 (SI 2000/940) and the latest version of PD 52 into this judgment. The general rules relating to appeals in CPR Part 52 are expressly made subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal (CPR 52.1(4)). In this judgment I am concerned only with appeals in civil proceedings in private law matters. I am not concerned with appeals in public law cases or with appeals in family proceedings.

Appeal to next level in judicial hierarchy: The general rule

15. As a general rule, appeal lies to the next level of judge in the court hierarchy. Thus in the county court appeal lies from a district judge to a circuit judge, and from a circuit judge to a high court judge; and in the high court appeals lie from a master or district judge of the high court to a high court judge and from a high court judge to the Court of Appeal. The court hearing a first appeal is described in CPR Part 52 as "the appeal court" (CPR 52.1(3)(b)), and the court from whose decision an appeal is brought is described as "the lower court" (CPR 52.1(3)(c)). A high court judge hearing an appeal must have attained the status of a high court judge or a judge of the Court of Appeal. Although retired judges of this status may hear such appeals, they may not be heard by deputies of lesser status (PD 52, para 8.9(1)).

Appeal to next level in judicial hierarchy: The exceptions

16. The normal route of appeal will not be followed where a district judge or a circuit judge in the county court, or a master or district judge of the high court gives the final decision in a multi-track claim allocated by a court to the multi-track under CPR 12.7, 14.8 or 26.5 (DO, Article 4(1)). This exception does not apply to a decision made in a Part 8 claim (which is treated as allocated to the multi-track pursuant to CPR 8.9(c)) or a decision in a claim allocated to the multi-track under some other provision, where the normal route of appeal will apply.
17. For this purpose a final decision is one that would finally determine the entire proceedings, subject to any possible appeal or detailed assessment of costs, whichever way the court decided the issues before it (DO, Article 1(2)(c)). A final decision includes the assessment of damages or any other final decision where it is "made at the conclusion of part of a hearing or trial which has been split up into parts and would, if made at the conclusion of that hearing or trial, be a final decision" (DO, Article 1(3)); it does not include a decision only on costs. This means that if a judge makes a final decision on any aspect of a claim, such as limitation, or on part of a claim which has been directed to be heard separately, this is a final decision within the meaning of this provision. Mr Emmerson told us that there was concern in some quarters that parts of a final decision might be subjected to one avenue of appeal and other parts might have a different avenue of appeal, but the language of DO Article 1(3) appears to preclude this possibility.
18. Orders striking out the proceedings or a statement of case, and orders giving summary judgment under CPR Part 24 are not final decisions because they are not decisions that would finally determine the entire proceedings whichever way the court decided the issues before it.
19. The Court of Appeal is the appeal court for appeals against final decisions of the type described above (DO, Article 4(a)). It is also the appeal court where a final decision is taken in specialist proceedings to which CPR 49(2) applies, whatever level of judge made this final decision (DO, Article 4(b)). These proceedings are admiralty proceedings, arbitration proceedings, commercial and mercantile actions, patents court business, technology and construction court business, proceedings under the Companies Acts 1985 and 1989 and contentious probate proceedings.

Permission to appeal: The general rule

20. As a general rule permission is required for an appeal (CPR 52.3(1)). Permission may be granted either by the lower court at the hearing at which the decision to be appealed was made, or by the appeal court (CPR 52.3(2)). If an appeal court refuses permission without a hearing, a request may be made for the reconsideration of that decision at an oral hearing (CPR 52.3(4)). If at that oral hearing the appeal court refuses permission to appeal, then no further right of appeal exists, and that is the end of the matter (Access to Justice Act 1999 s 54(4); PD 52 para 4.8). One further new provision needs to be noted: if an appellant is in receipt of services funded by the Legal Services Commission (or legally aided) and permission to appeal has been refused by the appeal court without a hearing, the appellant must send a copy of the reasons the appeal court gave for refusing permission to the relevant office of the Legal Services Commission as soon as it has been received from the court (PD 52, para 4.17).
21. Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)). Lord Woolf MR has explained that the use of the word "real" means that the prospect of success must be realistic rather than fanciful (Swain v Hillman CAT 21 October 1999, para 10).
22. An order giving permission to appeal may limit the issues to be heard. It may also be made subject to conditions (CPR 52.3(7)). If a court confines its permission to some issues only, it should expressly refuse permission on any remaining issues. Those other issues may then only be raised at the hearing of the appeal with the appeal court's permission. That court and the respondent should be informed of any intention to raise such an issue as soon as practicable after notification of the court's order giving permission to appeal (PD 52 para 4.18).

Permission to appeal: Exceptions

23. Permission to appeal will not be required where the appeal is against a committal order, a refusal of habeas corpus or a secure accommodation order made under Section 25 of the Children Act 1989 (CPR 52.3(1)(a)). In these cases, where the liberty of the subject is in issue, appeal lies as of right.
24. Permission to appeal is not required for an appeal from a district judge to a circuit judge in relation to a decision made in the small claims track. (By CPR 52.1(2)(a) CPR Part 52 does not at present apply to an appeal against an order in the small claims track, although I understand that the position relating to such appeals is currently under review). If a circuit judge dismisses such an appeal without a hearing because no sufficient ground is shown in the notice of appeal (see PD 27, para 8.6), an appeal against that ruling lies to a high court judge (DO, Article 3(1): it is not a decision on an appeal falling within Article 5). No permission is required for this further appeal.
25. Similarly, permission to appeal is not required for an appeal from a decision made (exceptionally) by a circuit judge on hearing a claim allocated to the small claims track, for which a high court judge is the appeal court (DO, Article 5 does not apply in these circumstances).
26. Permission to appeal is not required for an appeal from a decision made by an authorised court officer in detailed assessment proceedings to a costs judge or a district judge of the high court (CPR 47.21 as substituted by SI 2000/940). On the other hand, permission to appeal is required from a decision made by a costs judge or a district judge of the high court in such proceedings to a high court judge (DO, Article 2), because the exception mentioned in CPR 52.1(2)(b) applies only to appeals in detailed assessment proceedings against the decision of an authorised court officer, and not to this higher level of appeal in such proceedings. Where costs are summarily assessed by a judge as part of a final decision in a multi-track claim, then the principles relating to appeals against final decisions in multi-track claims will be applied (see paragraphs 17 and 19 above).

First Appeals diverted from the normal route so as to be heard by the Court of Appeal

27. If the normal route of a first appeal would be to a circuit judge or to a high court judge, either the lower court or the appeal court may order the appeal to be transferred to the Court of Appeal if they consider that it would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it (CPR 52.14(1)). This rule refers to first appeals, because what is in question is whether the appeal in question should be heard in the county court or the high court on the one hand or in the Court of Appeal on the other. By DO Article 5, all second appeals lie to the Court of Appeal and nowhere else, so that this question could not arise in that context.
28. The Master of the Rolls also has the power to direct that an appeal which would normally be heard by a circuit judge or a high court judge should be heard instead by the Court of Appeal (1999 Act s 57(1)).
29. In such cases the Master of the Rolls and the Court of Appeal also have the power to remit an appeal to the court in which the original appeal was or would have been brought (CPR 52.14(2)).

The appellate approach: The general rule

30. As a general rule, every appeal will be limited to a review of the decision of the lower court. This general rule will be applied unless a practice direction makes different provision for a particular category of appeal, or the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing (CPR 52.11(1)). The appeal court will only allow an appeal where the decision of the lower court was wrong, or where it was unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR 52.11(3)).
31. This marks a significant change in practice, in relation to what used to be called "interlocutory appeals" from district judges or masters. Under the old practice, the appeal to a judge was a rehearing in the fullest sense of the word, and the judge exercised his/her discretion afresh, while giving appropriate weight to the way the lower court had exercised its discretion in the matter. Under the new practice, the decision of the lower court will attract much greater significance. The appeal court's duty is now limited to a review of that decision, and it may only interfere in the quite limited circumstances set out in CPR 52.11(3).
32. The first ground for interference speaks for itself. The epithet "wrong" is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G v G [1985] 1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said at p 652C:

"Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as "blatant error" used by the President in the present case, and words such as "clearly wrong", "plainly wrong", or simply "wrong" used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of the first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."

33. So far as the second ground for interference is concerned, it must be noted that the appeal court only has power to interfere if the procedural or other irregularity which it has detected in the proceedings in the lower court was a serious one, and that this irregularity caused the decision of the lower court to be an unjust decision.

The need for a suitable record of all judgments

34. This new emphasis on the importance of the decision made at first instance gives added weight to the need for all such decisions to be recorded accurately, so that the appeal court will be able to read a reliable version of the judgment which it is concerned to review. If it is a short judgment, the judge or master may of course dictate it to the parties at dictation speed, to save the cost and delay involved in obtaining a transcript. CPR PD 39 (Miscellaneous provisions relating to hearings), paragraph 6.1, requires a judgment to be recorded unless the judge directs otherwise, and if a judge or master is anxious to spare a party of limited means the cost of obtaining an approved transcript, he or she must take steps to ensure that by some other means there is an incontrovertibly accurate record of the judgment.
35. There is a section of the new Practice Direction headed "Suitable record of the judgment" (PD 52 paras 5.12 - 5.13) which brings conveniently into one place a number of rules and other principles which were previously not always easy to find. Because it is still the case that no reliable record is often produced to an appeal court of a judgment by a master or district judge, and sometimes of a judgment by a circuit judge, I am setting out in this judgment the parts of that Practice Direction which apply to civil proceedings. Careful attention must be paid in the future to these matters by all who sit or practise in civil courts, because it will be likely to lead to injustice if an appeal court is expected to review a decision when there is no reliable record of what was said in the lower court. The Practice Direction reads, so far as is material:

"5.12 Where the judgment to be appealed has been officially recorded by the court, an approved transcript of that record should accompany the appellant's notice. Photocopies will not be accepted for this purpose. However, where there is no officially recorded judgment, the following documents will be acceptable:

(1) Where the judgment was made in writing a copy of that judgment endorsed with the judge's signature.

(2) When judgment was not officially recorded or made in writing a note of the judgment (agreed between the appellant's and respondent's advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondent or the lower court judge.

(3) When the appellant was unrepresented in the lower court it is the duty of any advocate for the respondent to make his/her note of judgment promptly available, free of charge to the appellant where there is no officially recorded judgment or if the court so directs. Where the appellant was represented in the lower court it is the duty of his/her own former advocate to make his/her note available in these circumstances. The appellant should submit the note of judgment to the appeal court.

...

5.13 An appellant may not be able to obtain an official transcript or other suitable record of the lower court's decision within the time within which the appellant's notice must be filed. In such cases the appellant's notice must still be completed to the best of the appellant's ability on the basis of the documentation available. However it may be amended subsequently with the permission of the appeal court."

The appellate approach: The exceptions

36. The general rule is set out in CPR 52.11(1) which starts with the words "every appeal will be limited to a review of the decision of the lower court unless ...". I have already set out the exceptions contained in that rule, and I have also mentioned the fact that CPR Part 52 does not apply to two categories of appeal: appeals against orders under Part 27 (the small claims track) and appeals against a decision of an authorised court officer in detailed assessment proceedings.
37. So far as the former is concerned, the only permissible grounds of appeal are that there was a serious irregularity affecting the proceedings or that the court made a mistake of law (CPR 27.12). As to the latter, on an appeal against a decision of an authorised court officer in detailed assessment proceedings, the court will rehear the proceedings which gave rise to the decision appealed against (CPR 47.23(a) as substituted by SI 2000/940). In other words, in such a case the court hearing the appeal will exercise its discretion afresh.

Powers of the appeal court: the general rule

38. The general rule set out in CPR Part 52 provides that every appeal court has all the powers of the lower court (CPR 52.10(1)). It also has power to affirm, set aside or vary any order or judgment made or given by the lower court; to refer any claim or issue for determination by the lower court; to order a new trial or hearing and to make a costs order (CPR 52.10(2)). It may exercise its powers in relation to the whole or part of an order of the lower court (CPR 52.10(4)). In other words every appeal court, whether a circuit judge or a high court judge or the Court of Appeal, has been expressly given the same powers in relation to appeals governed by CPR Part 52. The Court of Appeal also has special powers in an appeal from a claim tried by a jury (CPR 52.10(3)).

Powers of the appeal court: the exceptions

39. The court hearing an appeal against a decision made in the small claims track may make "any order it considers appropriate" if it is satisfied that there was a serious irregularity affecting the proceedings or that the lower court made a mistake of law. It also has the power to dismiss an appeal without a hearing (CPR 27.12). I have already mentioned the fact that a review of the appeal procedures in the small claims track is currently being undertaken, so that courts and practitioners must be alert to any future change to this rule.
40. In an appeal from an authorised court officer in detailed assessment proceedings, the court hearing the appeal may "make any order and give such directions as it considers appropriate" (CPR 47.23(b) as substituted by SI 2000/940).

Second Appeals

41. Parliament is responsible for controlling the expenditure of public resources on the administration of justice (whether in relation to the direct costs of the courts, including the cost of the judiciary, or in relation to expenditure on what used to be called legal aid). It has now made it clear that it is only in an exceptional case that a second appeal may be sanctioned. Section 55(1) of the Access to Justice Act 1999 provides that:

"Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that -

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it." (Emphasis added).

42. 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, 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.
43. All courts are familiar with the litigant, often an unrepresented litigant, who will never take "no" for an answer, however unpromising his/her cause. Under the new appeals regime, however, such litigants must appreciate that the general rule will be that the decision of the appeal court on the first appeal will be the final decision. If they wish to pursue the matter further, and to incur the often quite heavy costs involved in paying the court fee and preparing the appeal papers, the Court of Appeal may dismiss their application quite shortly, saying that the appeal raises no important point of principle or practice, and that there is no other compelling reason for the court to hear the appeal.
44. The reason for this significant change of appellate policy can be found in the 1997 Review of the Business of the Court of Appeal (Civil Division). This Review reported that over the previous decade there had been a substantial increase in the number of cases coming to the Court of Appeal. Its authors believed that if there had to be an appeal in a civil case this should normally be the end of the matter. This principle reflected the need for certainty, reasonable expense and proportionality, and they said that there must be special circumstances if there was to be more than one level of appeal. Elsewhere in their report they had said that judges of the quality of Lords Justices of Appeal were a scarce and valuable resource, and that it was important that they were used effectively and only on work which was appropriate to them (Review of the Court of Appeal (Civil Division), pp 10, 26 and 22).
45. It is clear that in the Access to Justice Act 1999 Parliament not only accepted the report's analysis of the problems confronting the Court of Appeal but that it also adopted even tougher measures than those recommended by the Review to ensure that second appeals would in future become a rarity and that the judges of this court would be freed to devote more of their time and energy in hearing first appeals in more substantive matters which either their court or a lower court had assessed as having a realistic prospect of success.
46. These new arrangements are likely to impose great burdens on the staff and lawyers in the Court of Appeal, unless the status of the order being appealed against is completely clear on its face. Every order made on appeal must therefore record the name and status of the judge against whom the appeal was brought. Orders relating to final decisions of a lower court must also make it clear whether the order was made in the small claims track, the fast track or the multi-track, and if it was made in the multi-track, it must state whether it was made in a claim allocated to the multi-track or whether the Part 8 procedure was followed. If these steps are taken, it will be possible for the Civil Appeals Office to ascertain without undue difficulty whether the Court of Appeal possesses jurisdiction, and whether this is a first appeal or a second appeal, simply by reading the order under challenge.

Transitional arrangements

47. The new rules (and the new destination arrangements) will apply in all cases in which an appeal notice has been filed or an application for permission to appeal has been made on or after 2nd May 2000. If an application for permission to appeal has been made to the appeal court before 2nd May, and that court gives permission to appeal (whether before or after 2nd May) the appeal will be brought and will continue its progress under the old rules (see SI 2000/221, rule 39, as amended by SI 2000/940, rule 2, and DO, Article 6). Rule 2 of SI 2000/940, which came into effect on 2nd May 2000, reads:

"In the Civil Procedure (Amendment) Rules 2000, rule 39 (transitional provisions) is amended to read -

'39. Where a person has filed a notice of appeal or applied for permission to appeal before 2nd May 2000 -

(a) rule 19 of these Rules shall not apply to the appeal to which that notice or application relates; and

b) the rules of court relating to appeals in force immediately before 2nd May 2000 shall apply to that appeal as if they had not been revoked'".

48. Mr Emmerson suggested to us that the language of these transitional arrangements also appeared to embrace an application for permission to appeal to the lower court which had either been granted before 2nd May, although no notice of appeal had been filed at the appeal court before that date, or which had been made before, but granted after, that date. Although the language of these provisions might appear to allow for that interpretation of the rule, I am satisfied that on its proper construction, when viewed in the context of a rule which begins with a reference to the filing of the notice of appeal, the words "applied for permission to appeal" must be taken to refer to an application for permission made to the appeal court before 2nd May. In other words, if the lower court granted permission, the notice of appeal must have been filed at the appeal court before 2nd May for the old rules to continue to apply to the appeal. If it did not grant permission, or refused permission, before 2nd May, an application for permission must have been made to the appeal court before 2nd May if the old rules are to be applied to the appeal.
49. In a judgment on security of costs delivered three days ago, on 9th May 2000, in AT Poeton (Gloucester) Plating Ltd v Horton (CAT 9th May 2000) Morritt LJ was clearly not made aware of SI 2000/940. If he had been told about this rule, he would no doubt have held that because Mr Horton had filed a notice of appeal before 2nd May 2000 the provisions of RSC Order 59 applied to that appeal as if they had not been revoked. This judgment should therefore not be followed.

Conclusion

50. I have explained these changes, and their effect, in some detail because in many ways they mark the most significant changes in the arrangements for appeals in civil proceedings in this country for over 125 years. In future the decision of the "first instance" judge in what used to be called an "interlocutory appeal" will assume a much greater importance than it ever did in the days when the "judge in chambers" conducted a complete rehearing, with an entirely fresh discretion to exercise. And the decision of the "appeal court", whether a circuit judge or a high court judge, is in most cases now likely to be final. These changes will compel litigants and their advisers to pay even greater attention to the need to prepare their cases with appropriate care, because they may find it much more difficult to extricate themselves from the consequences of an ill-prepared case before a judge at first instance in a lower court.

LORD JUSTICE PETER GIBSON:

51. I agree.

THE MASTER OF THE ROLLS:

52. I also agree.
Order: As above costs to be costs in the appeal. (Order does not form part of the approved judgment)