Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851

The case of Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851 has provided a clear reminder to all practitioners seeking to appeal on all matters, including costs,  the rules to be adhered to in not seeking to bring a matter to the Court’s attention without the proper approval. The Court reminded Practitioners that the ‘Civil Procedure Rules set out procedural requirements, and not mere aspirations’ and that these will remain to be enforced by the Court to preserve its ability to make suitable and focused decisions.

The facts of the case were that the Claimant was granted permission by Judge Jacobs in the Upper Tribunal to appeal on the grounds that Judge Humphrey had failed to deal with the support provided by the Counsellor in question.  While this was the only basis on which permission was granted the Appellant thereafter filed grounds of appeal for which this permission only formed one part of the three grounds sought.

The comments of Lord Justice Hickinbottom outlined that the Appellant made clear that no formal application to amend the grounds were ever made. While the Court did hear the further grounds before them, as both parties had fully prepared, Lord Justice Hickinbottom simply averred that these additional grounds were purely academic and hypothetical. Lord Justice Hickinbottom further confirmed that the Court’s jurisdiction was ‘wholly constrained by the scope of the grounds of appeal and the permission granted (Gover v Property Care Limited[2006] EWCA Civ 286; [2006] ICR 1073).

The Court fully identified the procedure to be adopted in accordance with CPR 52 to make such an appeal. It therefore followed that should any change to the ground sought be required, permission to amend must be sought under CPR rule 52.17, supplemented by para 30 of CPR PD 52C, which provides as follows:

“(1) An appeal notice may not be amended without the permission of the court.

(2) An application for permission to amend made before permission to appeal has been considered will normally be determined without a hearing.

(3) An application for permission to amend (after permission to appeal has been granted) and any submissions in opposition will normally be dealt with at the hearing unless that would cause unnecessary expense or delay, in which case a request should be made for the application to amend to be heard in advance.

(4) Legal representatives must—

(a) inform the court at the time they make the application if the existing time estimate is affected by the proposed amendment; and

(b) attempt to agree any revised time estimate no later than 7 days after service of the application.”

LJ Hickinbottom confirmed that while the Court should not be a ‘slave to form’, failure to adhere to the grounds granted, without suitable applications being made, would result in the waste of Court time as well as hinder its capacity ‘to deal with their prodigious workloads efficiently and effectively’. LJ Hickinbottom advised that should any such application  be required the same should be made as soon as reasonably possible and should the Appellant, as it was on this occasion, fail to make any application whatsoever they ‘should not expect an appeal court to be sympathetic’.

It is therefore clear that for the purpose of any appeal hearing that Practitioners are minded to be up-front and open in respect of the grounds sought as any covert attempts to include additional items will not be entertained.

Jack Holland