Russell Hopkins, an associate in our firm’s Advocacy Unit, has recently returned from spending a year as one of eight Judicial Assistants to the Justices of the UK Supreme Court. He worked for Lord Collins and Lord Wilson, gaining invaluable insight into the workings of the appellate courts.
The Supreme Court receives over 300 applications for permission to appeal each year. On average, between 10-20% of applications are granted. Of those cases that make it through the permission stage to a substantive hearing on the merits, the Supreme Court’s first two years saw appellants succeed in about 50% of cases. An appellant therefore faces an uphill, but not impossible, battle. Below Russell comments on what parties should keep in mind when applying (or responding to an application) for permission to appeal.
- An application for permission to appeal should first be made to the court below. In the great majority of cases, that court will refuse permission. It might, however, certify that a point of law of general public importance is raised but leave it to the Supreme Court to decide whether to take the case.
- An application for permission to appeal should be made to the Supreme Court within 28 days of the lower court’s decision. After service, a respondent has 14 days within which to object. The presumption is that the application will be dealt with on the papers. There is unlikely to be an oral hearing.
- When the papers are filed at the Supreme Court, they are passed to Judicial Assistants who prepare a short (4-5 page) memorandum summarising the legal issues, the facts, the decisions of the courts below and the parties’ submissions. The applications are then grouped together in batches of five or six and each batch is distributed to a panel of three Justices, who meet to discuss whether to grant permission.
- The test for permission to be granted is that the case raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. It is vital that parties’ submissions (which should be less than 10 pages long) focus on this test. It is surprising the number of submissions that do not address the right test, even when drafted by respected Counsel. The Supreme Court is unlikely to take a case which turns on unique facts, or the interpretation of a statutory provision which has since been amended, or where the courts below have simply misapplied settled law.
- The parties will receive only limited reasons accompanying the decision whether to grant permission. If permission is refused the reason given might simply be that no arguable point of law of general public importance has been raised.
If you would like advice on any issues relating to appeals to the Supreme Court or the Judicial Committee of the Privy Council, do not hesitate to contact us.