Hickey v SoS for Work and Pensions – Early work the (Hic)key to avoiding sanctions on appeal

The Court of Appeal has re-iterated the need for compliance with the CPR to ensure appeals are focussed. It has given a clear threat of sanction for those parties who seek to substantially amend Grounds of Appeal after permission has been granted without prompt application, or any application at all.

In Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851, Hickinbottom LJ dedicated the substance of his judgment to addressing the manner in which the Grounds of Appeal had been presented to the Court of Appeal.

The case concerned an application for Personal Independence Payment (“PIP”). Permission to appeal from the Upper Tribunal had been granted on a narrow ground: whether the Upper Tribunal Judge had failed to consider support received by the Appellant from her counsellor. During the course of the hearing, this ground was effectively abandoned and the Court of Appeal granted permission for three further grounds concerning the definitions of ‘support’ and ‘engaging socially’ (terms used in the PIP criteria). The facts are otherwise largely irrelevant to the guidance.

 

Hickinbottom LJ’s Commentary

Hickinbottom LJ’s judgment at paragraphs [69]-[75] received unanimous support from the other judges hearing the matter. He has re-iterated the procedural appeal requirements in the CPR, and noted that an appeal court’s jurisdiction will be bound by the Grounds of Appeal which have received permission unless amended. Such amendment requires the permission of the court (CPR 52.17), and an application to do so should be reasonably prompt.

Hickinbottom LJ has drawn attention to the fact that any amendments will normally be dealt with immediately before the appeal hearing. For this reason, it is expected that amendments will not be substantial. Specifically, the Judge has criticised any practice of covertly amending the Grounds of Appeal in a skeleton argument. Where there has been no application, or where an application has not been reasonably prompt, parties should not expect the appeal court to be sympathetic to substantial amendments. Importantly, he has drawn attention to the ‘variety of sanctions’ available to the appeal court where the CPR have not been followed.

 

Case Commentary

The case highlights the importance of getting Grounds of Appeal right the first time around. Leaving an application late risks sanction. This leaves legal representatives with the unenviable decision as to whether the application should be made, or whether to make do and proceed. That brings with it the natural temptation to creatively work the true grounds of appeal into the existing Grounds – an approach likely to draw criticism given the Judge’s comments upon use of skeleton arguments as a covert tool.

Hickinbottom LJ at [74] has identified a clear link between the Grounds of Appeal which concisely outline the way(s) in which a decision is wrong or unjust, and the skeleton argument which outlines why the decision is wrong or unjust. It is therefore good practice to ensure the presenting advocate has some input into how the Grounds are to be formulated. The Grounds will nuance the manner in which the case is presented. Having the Grounds follow the (draft) skeleton argument will support a far more fluid, and therefore persuasive, argument at the appeal hearing itself. Importantly it will avoid the above difficulties in their entirety.

 

Ben Chapman

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