In their judgment in the matter of R (A Child) [2019] EWCA Civ 895, the Court of Appeal have clarified the test for when permission to appeal should be granted, specifically how the phrase “real prospect of success” which appears in both CPR 56.6(1)(a) and, in family cases, FPR 30.3(7), should be interpreted.   

 

There were conflicting previous decisions as to whether “real prospect of success” meant “more likely than not”, requiring a better than 50/50 chance of success, or “realistic rather than fanciful” prospects, the latter being a significantly lower threshold.

 

Lord Justice Peter Jackson and Lord Justice Baker confirmed that the correct test was the latter: the Court only needs to be satisfied that an appeal’s prospects of success were “realistic rather than fanciful” in order to grant permission to appeal. They added that “there is no requirement that success should be probable, or more likely than not”.