Leave to appeal

When the requirement of leave to appeal was introduced, the position of the Supreme Court as the court changed considerably. The earlier system of appeal with a hierarchy of three court instances was replaced by a system with two instances: a decision of a court of first instance may usually be appealed against to one superior court. Thereby the courts of appeal are the highest instance for most court proceedings, whereas the role of the Supreme Court clearly is that of creating precedents. Leave to appeal is also required for appeal against decisions of specialised courts.

Grounds for leave to appeal

The preconditions to the granting of leave to appeal are as provided in Chapter 30, section 3 (1) of the Code of Judicial Procedure, under which the Supreme Court may only grant leave to appeal on the following grounds:

• a decision of the Supreme Court is necessary for the application of law in identical or similar cases or for the consistency of case law;
• an error in procedure or other error has taken place in the case, which by virtue of law requires that the decision be quashed;
• there are other weighty reasons for granting leave to appeal.

The purpose of the requirement of leave to appeal is to enable the Supreme Court to concentrate on guiding judicial practice through precedent. Therefore the first alternative ground for the granting of leave to appeal is the most important one. A precedent may relate to the application of law in identical or similar cases or to the consistency of case law. In the first- mentioned case the precedent provides guidance for resolving similar questions of law in the future. In the latter case the precedent provides guidance for such practice of lower courts as is inconsistent or contradicts the case law of the Supreme Court. The granting of leave to appeal on the grounds that the case creates a precedent always suggests that the decision of the Supreme Court has general legal relevance.

The other grounds for the granting of leave to appeal are seldom applied. They are mainly applied when there is need to rectify a clearly erroneous, unreasonable or unfair court decision.

A decision on the granting of leave to appeal is made upon application. The application must indicate the grounds on which leave to appeal should be granted, i.e. whether the case creates precedent, involves an error in procedure or there are other weighty reasons. The application must further indicate the reasons on the basis of which the applicant considers that there are grounds for granting leave to appeal. In brief, the application for leave to appeal must set out the grounds.