Permission to appeal and a reasonable prospect of success
The Court of Appeal has taken the opportunity to provide guidance on the meaning of “reasonable prospect of success” in the test for permission to appeal in the family law arena. Ashley Lord examines its ruling.
The substance of the appeal in R (A Child) [2019] EWCA Civ 895 stemmed from a finding of fact made by HHJ Anderson that the appellant grandmother should remain in the pool of possible perpetrators for non-accidental injuries (bruising and fractured ribs) sustained by her 11-week old granddaughter.
The grandmother sought to appeal this finding on the basis that the evidence did not underpin the findings made by the learned judge and accordingly the reasons given for keeping the her in the pool of possible perpetrators were insufficient. The grandmother was successful on appeal and she was duly removed from the pool of possible perpetrators.
When seeking permission to appeal, the appellant had correctly referenced the conflicting authorities set out within the Family Procedure Rules 2010 (as amended) as follows:
“Real prospect of success – There are two conflicting authorities on the meaning of a ‘real prospect of success’. In NLW v ARC [2012] 2 FLR 129, FD, Mostyn J held that the ‘real prospect of success meant it was more likely than not that the appeal would be allowed at the substantive hearing: “anything less than a 50/50 threshold could only mean there was a real prospect of failure”. Moor J, however, has held that a ‘real prospect of success’ is one that is realistic rather than fanciful, and does not mean a greater than 50/50 chance of success. … The weight of current first instance authority follows the approach of Moor J.”
Peter Jackson LJ took the opportunity brought about by this appeal to “…resolve any remaining doubt” as to the appropriate test for permission to appeal on an application to the Court of Appeal or to the High Court or Family Court. His Lordship, held as follows:
“The test for the grant of permission to appeal on an application to the Court of Appeal or to the High Court or Family Court under the first limb of the relevant sub-rule is that the appeal would have a real prospect of success”.
His Lordship continued:
“As stated in Tanfern v Cameron-MacDonald (Practice Note) [2001] 1 WLR 1311 CA at [21], which itself follows Swain v Hillman [2001] 1 AER 91 CA, there must be a realistic, as opposed to fanciful, prospect of success. There is no requirement that success should be probable, or more likely than not.”
This guidance should be kept closely in mind when applications for appeal are made.
Ashley Lord is a barrister at Spire Barristers. He appeared for the appellant in this case. Ashley can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
