The judiciary and the court system - Appeals to the Supreme ...

Learning Outcomes

This article examines appeals to the UK Supreme Court within the judicial and constitutional framework, including:

• The Supreme Court’s role and constitutional status as the UK’s highest appellate court
• Jurisdictional scope and the court hierarchy in civil and criminal matters
• Demarcation between civil and criminal appellate routes to the Supreme Court
• Standard appeals and the leapfrog route: operation and statutory foundations
• Permission to appeal: criteria, application stages, and the "point of law of general public importance"
• Policy constraints against factual appeals and cases of merely private interest
• Leapfrog appeals from the High Court: exceptional nature and strict prerequisites
• Precedent at Supreme Court level: stare decisis and departures from prior decisions
• Relationships with the Judicial Committee of the Privy Council and relevant EU and ECHR courts
• Interdependencies of UK public law institutions and devolved governance
• Constitutional principles and the Supreme Court’s role in shaping the development of the law

SQE1 Syllabus

For SQE1, you are required to understand appeals to the UK Supreme Court, including its role, jurisdiction, appellate routes, permission criteria, and constitutional context, with a focus on the following syllabus points:

• The UK court hierarchy: senior and first-instance courts, their functions, and appellate routes
• The role, powers, and constitutional status of the Supreme Court (including its creation under the Constitutional Reform Act 2005)
• Jurisdictional boundaries and the scope of the Supreme Court’s appellate review in both civil and criminal matters
• The standard appellate process: progressing from the Court of Appeal to the Supreme Court in civil and criminal cases, and the strict prerequisites for permission
• The leapfrog appeal pathway: legislative foundations, when it applies, and the practicalities of bypassing the Court of Appeal via a High Court certificate
• Criteria for granting permission to appeal, centring on the concept of a "point of law of general public importance" and related statutory language
• The Supreme Court as the ultimate arbiter of legal precedent, including the Practice Statement 1966 and subsequent developments in appellate practice
• The interface between Supreme Court decisions and fundamental constitutional doctrines (parliamentary sovereignty, separation of powers, rule of law)
• The Supreme Court’s relationship with devolved legislatures and with EU and ECHR law (including after Brexit, where relevant)
• The constitutional and practical effects of Supreme Court judgments for lower courts and litigants

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which Act of Parliament established the UK Supreme Court?
   1. Supreme Court Act 1981
   2. Constitutional Reform Act 2005
   3. Appellate Jurisdiction Act 1876
   4. Human Rights Act 1998
2. What is the primary test for granting permission to appeal to the Supreme Court?
   1. The case involves a sum exceeding £100,000.
   2. The lower court made an error of fact.
   3. The appeal raises an arguable point of law of general public importance.
   4. Both parties consent to the appeal.

3. True or False: The Supreme Court is bound by its own previous decisions in all circumstances.

4. Under what circumstances can a 'leapfrog' appeal be made directly from the High Court to the Supreme Court?
   1. If the case involves a commercial dispute.
   2. If the High Court judge considers the case particularly complex.
   3. If the relevant statutory provisions are met, including the case involving a point of law of general public importance related to statutory interpretation or bound by a previous Supreme Court/House of Lords decision.
   4. If the Court of Appeal refuses permission to appeal.

Introduction

The Supreme Court of the United Kingdom stands at the apex of the judicial hierarchy for England and Wales (as well as Northern Ireland, and hears civil appeals from Scotland). Its decisions are authoritative across the UK's three legal jurisdictions, except in Scottish criminal cases. Established by the Constitutional Reform Act 2005 and operational from October 2009, the Supreme Court replaced the Appellate Committee of the House of Lords. Its creation represents a significant constitutional development—removing the highest court from Parliament to ensure the independence of the judiciary and clarify the boundaries between judicial and legislative power.

The core function of the Supreme Court is to hear appeals—never to conduct full trials or review pure questions of fact. Instead, it determines questions of law where clarification is necessary for the legal system or the broader public interest. Its judgments shape the development of law, and, through the doctrine of precedent, command the course of legal interpretation for generations of courts below.

Key Term: Supreme Court
The UK's final domestic court of appeal, independent of Parliament, with authority to determine legal issues of the highest order and to set binding precedent for all English, Welsh, and Northern Irish courts (and, for civil matters, Scotland).

Key Term: Jurisdiction
The legally defined limits within which a court may hear and determine cases.

Understanding the mechanics of gaining access to the Supreme Court, as well as the circumstances in which its appellate jurisdiction will be exercised, is fundamental for advancing any appeal or providing advice to clients on the realistic prospects of challenging lower court decisions all the way to the highest level of the system.

The Supreme Court's Role and Jurisdiction

The Supreme Court acts exclusively as an appellate court and never as a court of first instance. Its jurisdiction comprises:

• Civil appeals from the Court of Appeal of England and Wales, the Court of Appeal in Northern Ireland, and (for civil matters) the Court of Session in Scotland
• Criminal appeals from England, Wales, and Northern Ireland, but not from Scottish criminal courts (where the High Court of Justiciary is supreme)
• References on devolution issues, such as the limits of devolved legislative competence, often arising through appeals but also sometimes by way of direct reference from law officers

The Supreme Court is not a tribunal of fact but a court of legal principle. It interprets and clarifies the law, resolves conflicts between lower appellate courts, determines the constitutionality of legislation under the Human Rights Act, and maintains the coherence of the law throughout the jurisdictions of the UK.

Key Term: Appellate Jurisdiction
The power of a court to review, amend, or overturn decisions made by lower courts.

The Supreme Court adjudicates on points of law that carry significance for the legal system, upholds the rule of law, and ensures that core constitutional principles are respected in all branches of state action.

The general principles guiding the Supreme Court's intervention uphold not only the efficient administration of justice, but also the organic growth of the law in response to changing social, economic, and constitutional realities.

Routes of Appeal to the Supreme Court

The Supreme Court may hear appeals via two principal routes: the standard (or "ordinary") route and the leapfrog route. Detailed statutory and procedural controls shape both.

Standard Appeals

The most frequent pathway to the Supreme Court is by appeal from the Court of Appeal, either its Civil Division or Criminal Division. To reach the Supreme Court, the case must first progress through the hierarchy:

• In civil cases: from the court of first instance (County Court or High Court) to the Court of Appeal (Civil Division).
• In criminal cases (from England, Wales, and Northern Ireland): from a trial court (Crown Court or equivalent) to the Court of Appeal (Criminal Division).

Appeals to the Supreme Court are strictly on points of law, not on findings of fact or straightforward applications of settled legal rules.

Permission (leave) to appeal is required, and even where both parties consent, the court must be satisfied that the relevant legal test is satisfied. There is no appeal as of right.

Key Term: Appeal
An application to a higher court for review of a lower court’s decision, with a view to reversing or modifying it.

Key Term: Appellant
The party who brings an appeal, seeking a change to the decision.

Key Term: Respondent
The party who resists the appeal, typically seeking to uphold the original decision.

A distinguishing feature of appeals to the Supreme Court is their public function: the court is not there to rehear the private dispute, but to clarify and advance the law on questions that are significant beyond the parties to the case.

Leapfrog Appeals

In specific and exceptional circumstances, there is provision for appeals to proceed directly from the High Court to the Supreme Court, bypassing the intermediate stage of the Court of Appeal. This process, known as the "leapfrog" appeal, is governed by the Administration of Justice Act 1969 (as amended) and the relevant Rules of Court (specifically, CPR Part 52 for civil cases).

Leapfrog appeals are permissible only if:

• The case involves a point of law of general public importance, and
• The point concerns either the interpretation of a statute or statutory instrument, or the case is one where the High Court judge was bound by a previous Court of Appeal or Supreme Court/House of Lords decision, and would have decided otherwise if free to do so.

Moreover, a leapfrog appeal requires:

• A certificate from the judge below, with the consent of all parties to the proceedings (except in certain cases of statutory interpretation), and
• Permission ("leave") granted by the Supreme Court itself, which considers whether it is expedient and appropriate for a direct appeal to be heard.

This is a tightly constrained exception, aligned with the need for legal efficiency and the avoidance of unnecessary procedural delays in high-stakes or systemically significant litigation.

Key Term: Leapfrog Appeal
The procedure enabling cases to go directly from the High Court to the Supreme Court (bypassing the Court of Appeal) in situations meeting strict statutory criteria.

Worked Example 1.1

A High Court case involves the complex interpretation of a provision under the Companies Act 2006. The judge considers himself bound by an established Court of Appeal precedent but would have ruled differently if free to do so. The point affects a substantial part of the business sector.

What is the most direct appellate route, assuming the statutory conditions are satisfied?

Answer:
The leapfrog appeal route, enabled by a High Court certification (and the consent of the Supreme Court), allows the appeal to bypass the Court of Appeal and proceed directly to the Supreme Court. The combination of a point of law of general public importance, involving statutory construction and binding (but contested) Court of Appeal authority, fulfills the essential leapfrog criteria.

The leapfrog route, although available primarily in civil cases, demonstrates the court’s role in swiftly determining questions that have repercussions for the integrity and clarity of the law.

Permission to Appeal

Virtually all appeals to the Supreme Court require express permission from the lower court or from the Supreme Court itself. Permission functions as a rigorous filter to ensure the court's time is reserved for matters of true importance, not routine or fact-specific disputes.

The Test: Point of Law of General Public Importance

The sole statutory ground for permission is that the case concerns an "arguable point of law of general public importance" which the Supreme Court should decide at that time. Formulations of the test are found in:

• Section 40(6) of the Constitutional Reform Act 2005 (for civil appeals).
• Section 33(2) of the Criminal Appeal Act 1968 (for criminal appeals).

Permission may be granted only where the court is persuaded not only that the point is serious and genuinely contestable, but that it has a relevance that transcends the facts of the particular case. Points that affect only the parties or the correction of simple legal errors do not qualify.

Key Term: Point of Law of General Public Importance
A legal question whose proper resolution will affect the public at large or shape a substantial body of future cases; a question not yet determined or where lower court guidance is unclear, conflicting, or outdated.

This rigorous test excludes purely private or repetitive quarrels, and focuses the Supreme Court’s jurisdiction on those cases carrying weight for the system or the public as a whole.

Permission to appeal is applied for first to the court from which the appeal is made (for example, the Court of Appeal), and, if refused, directly to the Supreme Court. Applications are usually considered by an Appeal Panel consisting of three Justices; most are determined on paper, without an oral hearing.

Even when there is disagreement on factual issues or where argument is advanced that the lower court has applied settled law wrongly, permission will not be given unless the legal point is genuinely open and significant.

Worked Example 1.2

A dispute arises between two neighbours relating to the technical interpretation of a restrictive covenant within a property boundary. The issue is factual in nature and, even if the legal point advanced is arguable, it lacks broader impact.

Would this case qualify for a Supreme Court hearing?

Answer:
No. As the matter affects the private rights of only the parties involved and does not present an issue of unsettled or generally significant law, it fails to meet the "general public importance" threshold. Such boundary disputes are typical examples of cases not suitable for Supreme Court review.

The filtering function is essential: only a small fraction of cases reach full hearings, preserving the Court’s capacity to focus on the legal points most worthy of final appeal and clarification.

The Hearing and Judgment

After permission is granted, the Supreme Court assigns a panel of Justices—typically five, but occasionally a larger number for cases of exceptional constitutional or public importance. The appellate hearing consists of detailed written and oral submissions. For the avoidance of doubt, it is not a retrial on the evidence; the Supreme Court will not rehear or reinterpret the facts save where the legal challenge turns solely on the legal significance of the facts as found in the courts below.

The function of the Supreme Court at this stage is:

• To determine the certified point(s) of law.
• To resolve divergent or inconsistent approaches in lower appellate courts.
• To ensure the legal rule is consistent with broader constitutional or statutory principles.
• To provide authoritative, future-oriented clarification for all courts and practitioners.

After hearing argument, the panel issues a detailed, considered judgment. While a single majority opinion is the formal ruling of the Court, individual Justices may write concurring or dissenting opinions to record their separate reasoning.

Supreme Court judgments are public documents, reflecting the transparency and constitutional function of the court as the senior guardian of the law.

Impact on Precedent

The Supreme Court’s decisions are binding on all lower courts in England and Wales (and, in eligible matters, Northern Ireland and Scotland). Through the doctrine of stare decisis, its rulings define or redefine the law, set precedent, and are repeatedly cited in future litigation.

Key Term: Ratio Decidendi
The legal principle necessary for the Court’s decision, upon which the rest of the system must rely, and which is binding in future cases of similar type by courts lower in the hierarchy.

The Supreme Court’s role, beyond ordinary appellate adjudication, is to ensure that legal principles develop consistently with constitutional standards, parliamentary will, and the requirements of a fair and reasonable society.

Overruling Previous Decisions (Practice Statement 1966)

The Supreme Court is not inflexibly bound to its own earlier decisions, nor (since 1966) to those of the House of Lords. In the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, the House of Lords recognized—now adopted by the Supreme Court—that although precedent generally must be respected for the sake of legal certainty and consistency, prior decisions may be departed from "when it appears right to do so."

Key Term: Practice Statement 1966
The statement conferring on the House of Lords (now the Supreme Court) the discretionary power to depart from its own prior decisions, in the interest of justice or the sound development of the law; a doctrine sparingly employed but important for flexibility at the highest level.

Departures may be justified where the earlier rule is incorrect, causes injustice, is incompatible with subsequent legal or social developments, or obstructs coherence and justice in the law. Care is taken to avoid excessive uncertainty; the power is exercised cautiously and only where the arguments for a change clearly outweigh the benefits of stable law.

Recent cases such as R v Jogee [2016] UKSC 8, correcting joint enterprise liability, illustrate such reconsideration. When the Supreme Court exercises this prerogative, it can reshape major doctrines and set new directions for legal practice and principle.

Relationship to Appellate Practice and Other Superior Courts

Supreme Court precedent is binding on all other UK courts except the Scottish High Court of Justiciary in criminal cases. Its authority is persuasive, but not binding, in certain circumstances for the Judicial Committee of the Privy Council and for courts in common law jurisdictions internationally.

In cases engaging the law of the European Union (where "retained EU law" applies post-Brexit) or the European Convention on Human Rights, the Supreme Court will take into account—where relevant—the case law of the relevant supranational courts, but remains the domestic court of final resort.

Worked Example 1.3

A claimant seeks to appeal to the Supreme Court to argue that a prior House of Lords decision in a contract law matter was based on outdated social policy. The Court of Appeal has applied the old decision, but the appellant contends that it no longer fits modern commercial reality.

Is it possible for the Supreme Court to depart from the past rule?

Answer:
Yes, but only if the Supreme Court concludes, under Practice Statement 1966 principles, that departing from the rule is necessary for the achievement of justice or the proper development of the law. Such departures are relatively rare and follow careful consideration of the demands of certainty, public reliance, and the importance of stable law.

The Supreme Court’s discretionary flexibility is thus balanced by a strong presumption in favour of following its previous rulings.

Exam Warning

Do not confuse the rarity with which Supreme Court permission is granted, or the equally cautious use of the Practice Statement 1966, with a principle of rigidity. Only cases of the most compelling significance pass the filters for a Supreme Court hearing, and only a slender portion of those will result in precedent being overturned.

Revision Tip

Always identify the correct route for appeal and confirm the hierarchical ladder. Recognize that the standard route is always via the Court of Appeal unless overridden by the strict conditions for a leapfrog. When drafting legal argument or scenario solutions, precisely state whether the case raises a certifiable point of law of general public importance and whether it advances the development, clarification, or correction of the law.

Key Point Checklist

This article has covered the following key knowledge points:

• The Supreme Court is the final court of appeal for England and Wales, with appellate jurisdiction over major civil and criminal cases, and jurisdiction in constitutional or devolution issues.
• Created by the Constitutional Reform Act 2005, it sits physically and constitutionally outside Parliament, thus ensuring the separation of powers.
• To reach the Supreme Court, appeals must pass through the Court of Appeal (standard route), or, exceptionally, leapfrog from the High Court under statutory controls.
• Permission to appeal is always required, and is granted only if the case raises an arguable point of law of general public importance, which must be both significant in itself and relevant for broader public or legal development.
• The leapfrog appeal is available only when explicit statutory requirements are satisfied, often where the High Court is bound by (and disagrees with) an existing appellate precedent.
• Supreme Court decisions carry the force of binding precedent across all lower domestic courts, shaping the progression of the law and constraining judicial discretion in future analogous cases.
• While it generally follows its own previous decisions, the Supreme Court may (under strict criteria) depart from them, thus realigning the law with justice or modern needs.
• The Supreme Court’s power to overturn its past precedents, and the permissions system for appeals, are both consistent with constitutional doctrines of legal stability, the rule of law, and the need for incremental legal development.

Key Terms and Concepts

• Supreme Court
• Jurisdiction
• Appellate Jurisdiction
• Appeal
• Appellant
• Respondent
• Leapfrog Appeal
• Point of Law of General Public Importance
• Ratio Decidendi
• Practice Statement 1966