Whether the test is “wrong” or “plainly wrong” for an Appeal, and we shall know definitively after Re BS, when deciding whether to give permission, where is the bar set? What does the appellant have to demonstrate in order to get permission to appeal?
The High Court looked at this in Re H v G (adoption appeal) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/2136.html
And the Judge, Mr Justice Peter Jackson, pretty much layeth the smackdown on the gloss that was put on the test by the judge who granted permission for the appeal (I won’t name said Judge, but you can read it in the judgment, which was delivered on 13 June 2013 and NOT as the transcript would seem to indicate 13th June 2013 hint hint)
The test, which appears at Rule 30.3(7) of the Family Procedure Rules 2010 is that an applicant must show ‘a real prospect of success.’
As so often happens with any sort of test laid down by Statute or statutory instruments, judges tend to add their own gloss on it, and that gloss then gets adopted and absorbed into part of the legal test. We had a VERY long-running issue with this on the “soundbite” of “imminent risk of serious harm” and whether that was, or was not a gloss; and if so, whether it should or should not be followed.
What happened in THIS case is that the Judge who granted permission put a gloss on the “real prospect of success” as meaning that the case wasn’t “fanciful” or “capricious, whimsical or absurd”
(Of course, if that gloss were accepted, the test for the appellant would be relatively low, meaning really that there were just SOME argument to be had, rather than that the grounds for appeal showed a real prospect of success)
The High Court Judge hearing the appeal felt that this ought to be nipped in the bud.
I respectfully suggest that to allow permission to appeal in any case where the application is not capricious, whimsical or absurd is to set the threshold too low. It does not, in my view, give effect to the rule that simply requires a real prospect of success to be shown.
The Judge then referred to the case of CR v SR 2013, which dealt carefully with this point
In THAT case, the Court were dealing with a debate as to whether “real prospect of success” meant that the appellant seeking permission had to show that it was more likely than not that they would succeed in the appeal.
(So in CR v SR 2013, the issue was whether the ‘gloss’ on the test pushed it higher, and made it more difficult for the appellant, and in Re H v G 2013, whether the ‘gloss’ on the test pushed it lower and made it easier for the appellant. I have again removed the name of the Judge who originally set the gloss that CR v SR was addressing, cough cough, same Judge glossed the test in two different directions)
The “more likely than not to succeed gloss” was set in NLW v. ARC  2 FLR 129.
Our anonymised judge says, in para. 8: (underlining mine)
“In his skeleton argument Mr. Chamberlayne has suggested that the object of the test is only to weed out the hopeless appeal. I would not go that far. I would suggest that the concept of a real prospect of success must mean, generally speaking, that it is incumbent on an appellant to demonstrate that it is more likely than not that the appeal will be allowed at the substantive hearing. Anything less than a 50/50 threshold would of course, by linguistic definition, mean that it is improbable that the appeal will be allowed and in such circumstances it would be hard to say that any appeal had a real prospect of success; rather, it could only be said as a matter of logic that it had a real prospect of failure“.
The Judge in CR v SR disagreed, and relied on some Court of Appeal authority to prove the point.
- In a later decision, AV v. RM (Appeal)  2 FLR 709, Moor J. reaches a different conclusion to that of [NAME REMOVED]. as to the meaning of the phrase “a reasonable prospect of success”. He says at paras. 9 and 10 of his judgment:
“9) It has been on said on many occasions that judges should not place a judicial gloss on the words of either the statute or the rules. With the greatest of respect to [NAME REMOVED]., it may well have been that this aspect was not argued fully before him and that his attention was not, in particular, drawn to a decision of the Court of Appeal, of Tanfern Limited v. Cameron MacDonald & Anor.  1 WLR 1311, in which Brooke LJ. said the following (at para.21):
“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. Lord Woolf MR has explained that the use of the word of ‘real’ means that the prospect of success must be realistic rather than fanciful [see Swain v. Hillman, The Times, 4th November 1999; Court of Appeal (Civil Division) Transcript No. 1732 of 1999].
10) The test for permission to appeal is, of course, exactly the same in the Court of Appeal. It, therefore, follows that this court is bound by Tanfern Limited v. Cameron-MacDonald and I consider that there should be no gloss placed on the words of the rules other than to say that ‘real’ means that the prospect of success must be realistic rather than fanciful”.
So there you have it, a Judge considering permission to appeal (and that can of course include the trial Judge who made the decision, as that is the first port of call when seeking permission to appeal) hears the application to appeal and decides
Does this appeal have a real prospect of success, OR is there some other compelling reason why the appeal should be heard?
And does not interpret “Real prospect of success” as being either – more likely than not, OR that it is not capricious absurd or fanciful.
Of course, if BS confirms that the test for almost every appeal in children cases, following the Supreme Court in Re B, is has the appellant shown that the Judge was “wrong” rather than “plainly wrong”, there MUST be an argument that the ability of the appellant to have a real prospect of success must increase, as the test is lowered.
Perhaps the Court of appeal in Re BS will take the view, as is hinted at by some of the Judges in Re B, that the difference between “wrong” and “plainly wrong” is a small crevice rather than a grand canyon.
So both Judges considering an application to appeal AND the lawyer advising their client as to whether there is a real prospect of success in appealing are, for the moment, slightly in the dark, but will need to consider that it is PROBABLY at least slightly easier to pass the test for permission than it previously had been.