Clarise Properties Ltd v Rees [2015] EWCA Civ 1118 (Lawtel/Westlaw only from what I can see) is an interesting* permission to appeal decision. It appears that devolution has caused an odd little difference in the test for permission to appeal from the UT(LC) depending on whether the case started in England or Wales.

Imagine, if you will, that you have a leasehold dispute in the FTT in England. If you are dissatisfied with the decision of the FTT, you can appeal to the UT (s.11, Tribunals, Courts and Enforcement Act 2007) and, thereafter, to the Court of Appeal (s.13, 2007 Act). The test for appealing to the Court of Appeal is set out in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 and is the well-known “second appeals” test, i.e. there must be an important point of principle or practice or some other compelling reason for the Court of Appeal to hear the appeal.

Now, in Wales it is a bit different. Appeals are from the LVT (or RAC) to the Upper Tribunal (s.175, Commonhold and Leasehold Reform Act 2002) and, thereafter, to the Court of Appeal (s.13, 2007 Act). But what is the test for permission to appeal from the UT to the CA? You see, the 2008 Order applies where the appeal to the UT was against a decision of the FTT (ss.11, 13, 2007 Act).

Now, as the Court of Appeal rightly note, the LVT (or RAC) is not the FTT. So the 2008 Order cannot apply. Which means that the test for permission to appeal is the normal appeal test, i.e. real prospect of success or some other compelling reason to hear the appeal (CPR 52.3).

In the immediate case, it was just a dispute about the meaning of a lease, but the case had started in the LVT in Wales. There was no wider point of importance, but there was a real prospect of success. Permission granted.

There is no good reason for this difference and I assume it will be changed in due course. But, until then – and to repeat a theme regularly explored on this blog – lets all move to Wales.

*no, really, this is interesting!