For the last 25 years it has been assumed, including by the Court of Appeal itself, that an appeal under s.289 TCPA 1990 to the High Court from a decision in an enforcement appeal (and certain other decisions) was a ‘second appeal’ under s.55 of the Access to Justice Act 1999 and CPR Part 52. This meant permission to appeal onwards could only be granted by the Court of Appeal applying the more rigorous ‘second appeals’ test which is now found in r52.7 i.e. requiring that the appeal would raise an important point of principle or practice.

Following a preliminary issue hearing and in a fully reasoned judgment, the Court of Appeal (Holgate and Elisabeth Laing LJJ and the President of the Family Division) has clarified and corrected the position. It has ruled that permission to appeal can be granted by the High Court or Court of Appeal, and that the correct test to be applied is the less onerous first appeals test in r52.6 i.e. that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard. 

The Court in essence ruled that the general ‘second appeals’ regime introduced by the Access to Justice Act 1999 was never intended by Parliament to apply to the more specialist and self-contained s.289 appeal regime, as shown by the continued operation of s.289(6) which gives jurisdiction to either court to grant permission to appeal.

Ned Westaway and Charles Forrest appeared for the Secretary of State for Housing, Communities and Local Government, instructed by Emel Djevdet of the Government Legal Department.