Judicial Review: Permission appeals must be made to the Court of Appeal

United Kingdom

The High Court considered whether, after it had refused permission to apply for judicial review (“JR Permission”) following a hearing: (i) it also had the power to determine an application for permission to appeal against that decision, or (ii) the only course open to an applicant/ appellant was to apply to the Court of Appeal for permission to appeal the refusal of JR Permission. The court held that CPR 52.8 (which is specific to appeals concerning JR Permission) takes precedence over CPR 52.3(2) (the general rule for seeking permission to appeal), in judicial review cases. CPR 52.8 was to be read in the context of CPR 54.4 (permission required) and 54.12 (permission decision without a hearing) for a complete code on bringing judicial review proceedings. Therefore any appeal application had to be made to the Court of Appeal.

Background

Where a claimant wishes to bring proceedings for judicial review, it must first obtain the court’s permission (on paper or at a hearing) to commence those judicial review proceedings. This is to ensure that unmeritorious applications are sifted out before they occupy significant court time and also to ensure there is certainty as quickly as possible as to the status of decisions of public authorities which may be challenged.

Glencore was seeking permission to apply for judicial review of a decision by HMRC imposing a charge for diverting profits tax under the Finance Act 2015 (the “Act”). JR Permission was refused in the Administrative Court on the basis that there were alternative remedies available to Glencore under the review and appeal procedures in sections 101 and 102 of the Act, as well as on wider discretionary grounds. 

A dispute arose between Glencore and HMRC as to the power of the High Court to grant permission to appeal its own decision on JR Permission.

HMRC contended that the High Court had no jurisdiction to grant permission to appeal given that CPR 52.8 applies specifically to appeals against refusals of JR Permission after a hearing. It cited section 26.3 of the Administrative Court Judicial Review Guide to reinforce this argument. Further, the time limit for making an application to the Court of Appeal under CPR 54.8(4), running from the date of the decision, adds force to the view that once the High Court has taken a decision to refuse JR Permission at a hearing, its authority in the matter expires and passes to the Court of Appeal to consider any appeal. The deadline for applying to the Court of Appeal (7 days) simply does not allow for the applicant to make additional applications to the High Court.

Glencore argued that the general right of a party to seek permission from the lower court is not qualified by CPR 52.8 and, had this been the intention, CPR 52.3 would have been drafted to include reference to the fact that it was subject to CPR 52.8, which it did not. In addition the notes to the White Book at paragraph 52.3.6 listed five reasons why it was preferable for permission to appeal to be applied for in the lower court.

Judgment

Mr Justice Green concluded that while CPR 52.8 does not expressly state that the High Court has ‘no power’ to grant permission to appeal, it is a silent premise upon which it is drafted. The full context for interpretation of the procedure for appeal in cases of judicial review must include the regime as provided for under CPR 54. That is: (i) judicial review proceedings cannot be brought without permission being granted to proceed; (ii) where permission is refused on paper, the application for permission can be renewed at a hearing before the High Court, but the applicant cannot appeal the refusal on paper; and (iii) where permission has been refused at a hearing, JR Permission can only be sought from the Court of Appeal. 

Comment

Applicants for judicial review should be mindful that from the date of the High Court’s refusal of JR Permission after a hearing, they only have 7 days to apply to the Court of Appeal for permission to appeal.  

In fact, the Court of Appeal has discretion in such cases, either to: (i) grant permission to appeal, in which case the matter would proceed to a final hearing in the lower court; or (ii) grant permission to pursue the judicial review and, in such a case, the Court of Appeal could hear the substantive judicial review itself.

Read more here: Glencore Energy UK Ltd v Commissioners of HM Revenue and Customs [2017] EWHC 1587 (Admin)