THE LEAVE STAGE

[3.24] An application for judicial review will in turn give rise to a �devolution issue’ where it raises:

(a) a question whether any provision of an Act of the Northern Ireland Assembly is within the legislative competence of the Assembly; (b) a question whether a purported or proposed exercise of a function by a Minister or a Northern Ireland department is, or would be, invalid by reason of section 24 of the Northern Ireland Act 1998; (c) a question whether a Minister or a Northern Ireland department has failed to comply with any of the Convention rights, any obligation under EU law, or any order under section 27 [of the Northern Ireland Act] so far as relates to such an obligation; or (d) any question arising under the Northern Ireland Act 1998 about excepted or reserved matters.^[395]

A party raising a devolution issue must specify in a notice filed in the Central Office and served on each of the parties to the proceedings the facts, circumstances, and points of law that provide the basis for the alleged devolution issue.^[396] This will not of itself determine that the proceedings give rise to a devolution issue, as it is for the court to decide whether the assertion is well founded or merely frivolous or vexatious.^[397] However, where the court decides that the assertion of a devolution issue is valid, it must, as per Schedule 10, paragraph 5 to the Northern Ireland Act 1998 and RCJ Order 120, rule 3, give notice of the issue to the Advocate-General for Northern Ireland, the Attorney­General for Northern Ireland, and the appropriate Northern Ireland Minister or department.^[398]

The Onus of Proof and the �Arguable Case’ Threshold

[3.25] The onus of proof throughout judicial review proceedings is on the appli­cant^[399]— save where there is a prima facie case of illegality^[400]—and he or she must demonstrate at the leave stage that they have an �arguable case’.^[401] This has been described as a �modest hurdle’,^[402] and the Court of Appeal has stated that where a

matter (generally an issue of law) is sufficiently difficult to require argument from both parties, it is ordinarily appropriate for leave to be given if the matter cannot be clearly resolved against the applicant.¹⁰⁵ The application of the test of arguability will, however, depend on the material available at the leave stage¹⁰⁶ and on the view of the judge hearing the application, and the corresponding modesty of the hurdle may vary accord- ingly.¹⁰⁷ For instance, in Re Morrow and Campbell’s Application for Leave, Kerr J considered that two Democratic Unionist Party (DUP) Ministers of the Executive Com­mittee of the Northern Ireland Assembly had failed to demonstrate that they had an arguable case in respect of a decision of the First and Deputy First Ministers to withhold certain Committee documents from them in advance of Committee meetings (the decision to withhold documents had been taken in the face the DUP’s refusal to be bound by confidentiality in respect of Committee deliberations).¹⁰⁸ However, the Court of Appeal disagreed with this conclusion and considered that the application should proceed to a full hearing.

[3.26] Where leave has been granted a respondent or a notice party (on which see [3.37]-[3.38]) may apply to have a grant of leave set aside precisely because the case is not, in their view, arguable¹¹⁰ (grants of leave may be set aside on the basis of RCJ Order 32, rule 8 or with reference to the inherent jurisdiction of the High Court¹¹¹). The existing case law does, however, emphasise that such applications should be acceded to only sparingly and when legal argument makes it clear that there is no basis for the application¹¹² (the courts have thus sometimes refused to set aside leave where the factual basis for an application has changed but where the court considers that wider points of public interest remain to be resolved¹¹³). An example of leave having been set

bell’s Application [2013] NIQB 32, para 14, Treacy J; Re Quigley’s Application [2010] NIQB 132, para 20, McCloskey J; and Re Y’s Application [2009] NICA 22, para 14.

¹⁰⁵ Re UK Waste Management’s Application [2002] NI 130, 139.

¹⁰⁶ See, eg, Re Jordan’s Application for Leave [2013] NIQB 74, para 26, Stephens J. See also Re Armstrong’s Application [2007] NIQB 20, para 9, Gillen J: there may be â€?circumstances where an enhanced arguability threshold may be imposed even at the leave stage... I consider that there is much merit in the views expressed by Keene J in R v Cotswold District Council, e p Barrington [1998] 75 P and CR 515 where he said: “Where the court seems to have all the relevant material and have full argument at the (permission) stage on an inter partes hearing, the court is in a better position to judge the merits than as usual on a (permission) application. It may then require (a claimant) to show a reasonably good chance of success if he is to be given (permission).”’

¹⁰⁷ For examples of leave being refused for the absence of an arguable case see, eg, Re Madden’s Applica­tion [1991] 1 NIJB 99; Re O^rCallaghans Application [2003] NI 281; Re Northern Ireland Commissioner for Children and Young People’s Application [2004] NIQB 40; and Re Pantridge’s Application [2011] NIQB 9.

¹⁰⁸ [2001] NI 261.

¹⁰⁹ Re Morrow and Campbell’s Application [2002] NIQB 4. On substantive legitimate expectations see [6.29]-[6.45].

¹¹⁰ On the position of notice parties in this context see Re Secretary of State for Northern Ireland’s Application [2002] NIQB 26.

¹¹¹ RCJ Ord 32, r 8 reads: â€?The Court may set aside an order made ex parte.’

¹¹² See Re Ballyedmonds Application; Re DPP’s Application [2000] NI 174, 176. See also Re Savage’s Application [1991] NI 103, 106-7.

¹¹³ Eg, Re E’s Application [2003] NIQB 39 wherein the court refused to set aside the grant of leave to challenge the policing of the Holy Cross dispute in North Belfast as there were important public issues to be resolved notwithstanding that the factual setting had since changed. And note that the application was aside was in a case wherein the applicant had initiated private law proceedings in tandem with an application for judicial review.¹¹⁴

[3.27] A respondent may also argue that the application should be dismissed on the basis of the res judicata doctrine;¹¹⁵ that is, because a previous application in respect of the matters now before the court had already been dismissed.¹¹⁶ Such arguments are, however, rare in the case law, and there is, in any event, doubt about quite how far the res judicata doctrine is of relevance in the administrative law context.¹¹⁷

Delay

[3.28] RCJ Order 53, rule 4(1) requires that applications for leave are â€?made promptly and in any event within three months from the date when the grounds for the applica­tion first arose unless the Court considers that there is good reason for extending the period within which the application shall be made’ (this provision is, however, without prejudice to any statutory provision which has the effect of limiting the time within which an application must be made¹¹⁸). Time, for these purposes, will in general run only from the date of a formal decision with legal effect¹¹⁹ or, for instance, from the date of judgment in subordinate proceedings¹²⁰ (although the fact that a wide range of measures may be challenged in review proceedings may mean that different considera­tions will apply in different cases; and on the range of reviewable measures see [3.05]-[3.08]). Case law in Northern Ireland has, in any event, long emphasised that an application should be made promptly once time starts to run and that applications made within the three-month period may still be deemed out of time for lack of promp­titude.¹²¹ The corresponding rationale for the strict application of the time-limit has sometimes been linked to the interests of good administration¹²² and also to the need for respondents to be able effectively to defend proceedings (that is, within a time-frame

later dismissed, as were appeals to the Northern Ireland Court of Appeal and the House of Lords: [2006] NICA 37 and [2008] UKHL 66, [2009] 1 AC 536. A subsequent petition to the ECtHR was deemed inadmis­sible: see PF and EF v UK, App 28326/09, Admissibility Decision of 23 Nov 2010.

¹¹⁴ Re Ruane^,s Application; Re Belfast City Council's Application [2001] NIQB 4.

¹¹⁵ On which doctrine see R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, [2011] 2 AC 146.

¹¹⁶ See, eg, Re Wadsworth's Application [2004] NIQB 8, para 6, Weatherup J.

¹¹⁷ W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) pp 206ff.

¹¹⁸ RCJ Ord 53, r 4(3).

¹¹⁹ R (Burkett) v Hammersmith and Fulham LBC [2002] UKHL 23, [2002] UKHL 23, [2002] 3 All ER 97. See also, eg Re Wadsworth's Application [2004] NIQB 8, para 7, Weatherup J.

¹²⁰ RCJ Ord 53, r 4(2) reads: â€?Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.’ But see also RCJ Ord 53, r 3(7): â€?Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to an appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.’

¹²¹ Eg, Re Shearer's Application [1993] NIJB 12, and Re McCabe's Application [1994] NIJB 27. See too Re Hill's Application [2007] NICA 1, para 33; Re McHenry's Application [2007] NIQB 22, para 3(3); and Re Blackburn's Application for Leave [2010] NIQB 71, paras 7-14.

¹²² Re Wadsworth's Application [2004] NIQB 8; Re Quinn's Application for Leave [2010] NIQB 100, para 14, Treacy J; and Re Corbo Properties Application [2012] NIQB 107, [2013] JPL 816, 826ff, Horner J. On this justification see further [1.07].

that ensures that individuals involved in the decision can remember the decision and its context).^[403] A further justification is that of the need for protection of the interests of third parties who may have benefited from an original decision but who may suffer a detriment if the decision is later deemed unlawful^[404] (subject to any detriment being meaningful relative to the third party’s circumstances and actions^[405]).

[3.29] On the other hand, the time-limit can be extended where there is �good reason’ for doing so. �Good reason’ is a context-driven criterion, and the courts sometimes prefer to decide whether there has been good reason for delay at the substantive hearing rather than at the preliminary leave stage.^[406] In determining the issue the court will enquire: whether there is reasonable and objective justification for the late application; whether permission to proceed would be prejudicial to third party interests or the interests of good administration; and whether the public interest requires that the appli­cation should be allowed to proceed.^[407] Corresponding examples of good reason in the case law include: the fact that delay was caused by prior attempts to obtain legal aid;^[408] the fact that counsel for the applicant was hospitalised;^[409] the absence of an adverse impact on good administration or the interests of a third party;^[410] and the fact that the issue before the court on a delayed application was one that could be brought before the court again in substantially the same form in a subsequent application.^[411] The case law does, however, also make clear that, where there have been several periods of delay in the making of the application, the applicant must lay sufficient evidence to account for each of those periods.^[412] An application may thus fail—whether at leave or at the substantive hearing—when an applicant’s explanation for delay is only partial.^[413]

[3.30] One final point about the delay provision concerns its operation in cases falling under the European Communities Act 1972. Here, it is accepted that the â€?promptly’ requirement no longer applies and that the time limit is, instead, three months unless the Court considers that there is good reason for extending that period. This is the result of the CJEU’s ruling in UniplexJ³ which raised the question whether an analo­gous â€?promptly’ requirement in public procurement rules was consistent with the general principles of EU law.^{[414] [415] In holding that it was not consistent, the CJEU focused upon the principles of legal certainty and effectiveness when noting that â€?a duration which is placed at the discretion of the competent court is not predictable in its effects’ and that â€?the possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three- month period’.[416] Holding that this could undermine the effective protection of rights—where the CJEU relatedly held that time runs only from the moment when an applicant knew, or ought to have known, of an alleged illegality (on when time runs see [3.13])—it made clear that the common law’s preference for flexibility on time-limits was inconsistent with EU law.[417] This has since led the domestic courts to jettison the â€?promptly’ requirement not only in procurement cases but also in those involving other directly effective provisions of EU law, as this has been seen as the logical outworking of the Uniplex ruling.[418] In contrast, the courts have not accepted that Uniplex should be allowed to â€?spill-over’ into non-EU law cases, where they continue to apply the â€?promptly’ requirement on a case-by-case basis.[419] It would also appear that the require­ment can still apply in cases under the Human Rights Act 1998: while there are judicial dicta to suggest that the requirement might be incompatible with Article 6 ECHR[420], there are decisions of the ECtHR that apparently accept the legitimacy of the common law approach to time-limits.[421]}

Standing

[3.31] The requirement for standing to bring an application for judicial review is contained in section 18(4) of the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rule 3(5), both of which state that an applicant must have �a sufficient interest in the matter to which the application relates’. RCJ Order 53, rule 3(5) also links standing specifically to the leave stage of proceedings,^[422] although the courts will here form only a preliminary view of standing so as to exclude applications made by �cranks, busy­bodies or mischief makers’.^[423] The courts thereafter regard standing as a matter to be determined in the full legal and factual context to a dispute and they thus more typi­cally resolve the issue at the substantive hearing of an application for judicial review.^[424] The corresponding case law and the reasons for the shift away from an emphasis on standing at the leave stage are considered at [3.66]-[3.72]. Consideration is there also given to the related question of standing under section 7 of the Human Rights Act 1998.

Urgent Cases

[3.32] Where the issues raised on an application for leave are deemed urgent and the court considers that the applicant has an arguable case and so on, the application for leave can be heard as the substantive case.^[425] Whether an application is �urgent’ is, in turn, a matter for the court, although it appears that the court will proceed to hear the substantive application only with the agreement of the parties.^[426] An example of an urgent case is Re LLs Application,^[427] where the issue was whether the rights and duties in respect of the burial of a terminally ill child who had been in the care of a health and social services trust remained with the trust at the time of death or whether they reverted to the child’s biological parents. The court held that they remained with the trust.

Where Leave Is Granted

[3.33] Where the court grants leave to make an application for judicial review, the applicant is confined to the ground(s) for challenge in the Order 53 statement^[428] in respect of which leave is granted, subject to the court’s powers of amendment at both the leave stage and the substantive hearing.^[429] Where leave is granted in respect of only some of the grounds in the Order 53 statement, the applicant may appeal the decision about the refused grounds to the Court of Appeal. Leave is not required for such appeals.^[430]

[3.34] Once leave has been granted an originating motion, which carries a fee of £200, must be issued and served on the respondent(s) within 14 days. An affidavit of service of the notice of motion must also be filed in the Central Office within the same time period, after which period of time leave to make the application will lapse (where leave has lapsed an application for extension of time or for a further grant of leave must be made by summons and an affidavit that explains the failure to issue and serve the notice of motion in time; the court may order costs against the party who has failed to comply with the time-limits).^[431] The notice of motion should specify the relief and grounds in respect of which leave has been granted, and it should be accompanied by the appli­cant’s Order 53 statement (as amended by the grant of leave), the affidavits and exhibits, and the Order granting leave.^[432] The respondent’s affidavit(s), which must be drafted in clear and unambiguous language and prepared within a suggested time-frame of 21 days,^[433] must then set out the evidence (but not the arguments) and refer to both the respondent’s and applicant’s book of exhibits (the respondent’s book of exhibits—as with the applicant’s—should be prepared in line with the guidance in Judicial Review: Practice Note 01/2008^[434]). The applicant’s rejoinder must in turn be made within a suggested time-frame of 14 days and a date for a prehearing review of the case fixed.^[435]

Costs

[3.35] Where an application for leave is granted, costs, which are in the discretion of the court,^[436] will ordinarily be reserved until after the substantive hearing of the applica­tion (�costs follow the event’). However, applicants in �public interest’ cases (see [3.66]) may, at the leave stage, also apply to the court for a protective costs order (PCO) that will limit the extent of any potential costs order against them (the �flip-side’ to such orders would be �security for costs’ orders requested by respondents^[437]). Such orders have been of growing significance in recent years^[438] and the case law continues to evolve in the light of, among other things, EU law.^[439] The leading ruling remains that of the Court of Appeal in England and Wales in Corner House,^[440] which originally established that a PCO may issue at any stage in the proceedings—and subject to such conditions as the court thinks fit—if the court in its discretion is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of the costs that are likely to be involved it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so (the Court of Appeal also noted that, where those acting for the applicant are doing do so pro bono, this will be likely to enhance the argument in favour of an order).^[441] While it was initially thought that applications for PCOs should also be able to satisfy an �exceptionality test’, subsequent case law has made clear that there is no such additional test and that PCOs are poten­tially available in any case that raises matters of general public importance that are in the public interest.^[442] Case law has further made clear that the existence of a personal interest need not be fatal to an application for a PCO, albeit that the proceedings at hand will still need to raise dominant matters of public interest.^[443] The CJEU has also ruled in an environmental case that the courts should consider closely the fuller context to a case when deciding whether a PCO should issue in proceedings that would other­wise be �prohibitively expensive’.^[444]

[3.36] Where the application for leave is dismissed (see [3.42]), the applicant will have to cover his or her own costs (subject to the availability of legal aid). On the other hand, unsuccessful applicants will not normally be required to pay costs to the respondent because the leave stage is ex parte and the respondent will make submissions to the court only if it wishes to do so.^[445] Moreover, should proceedings be discontinued, the issue of costs will depend on the reasons for the discontinuance.^[446] For instance, where the reason is the respondent’s change of position in the light of the challenge, the applicant will have a reasonable expectation of costs.^[447] An order for the applicant will also be made if the reason for discontinuance is a change of the respondent’s position for the purpose of pre-empting the application.^[448]

Notice Parties

[3.37] Where leave has been granted, the applicant’s originating motion must also be served on notice parties. Notice parties are typically defined as �all parties directly affected’ by the proceedings,^[449] although RCJ Order 53, rule 5(7) allows other parties to be joined as notice parties where the court is of the opinion that they should be joined.^[450] The corresponding purpose of such notification is to place the affected parties in a position that will enable them to make representations to the court, albeit that the extent to which they may do so is ultimately a matter for the discretion of the court.^[451] A failure to serve the originating motion on a notice party is in turn regarded as a serious omission, although it need not entail that the court cannot hear the matters before it (much will instead depend on the nature of the issue and the remedy sought).^[452] The scope for failure to notify should, in any event, be limited where the applicant has observed the Pre-action Protocol as this requires potential applicants to copy their pre-action letter to interested parties (see [3.14]-[3.16]).

[3.38] Where leave is granted in an application that raises a devolution issue and/or may lead the court to make a declaration of incompatibility under the Human Rights Act 1998, statute contains a number of additional notification requirements (see [3.23]­[3.24]). Hence, where the proceedings give rise to a devolution issue the court must, as per Schedule 10, paragraph 5 to the Northern Ireland Act 1998, and RCJ Order 120, rule 3, give notice of the issue to the Advocate-General for Northern Ireland, the Attorney-General for Northern Ireland, and the appropriate Northern Ireland Minister or department;^[453] and where the court is considering whether to make a declaration of incompatibility a notice should be issued to the Crown by the court in accordance with section 5 of the Human Rights Act 1998 and RCJ Order 121, rules 2 and 3A.^[454]

Third Party Interveners

[3.39] Where leave is granted it is sometimes perceived that the legal issues to be raised at the substantive hearing are of a wider importance in the sense that they have implica­tions for parties other than the applicant, respondent, and notice parties (where applicable). Under such circumstances, third parties such as private organisations or statutory bodies may wish to intervene to bring further arguments to the attention of the court¹⁷⁵ (some bodies, for instance the Northern Ireland Human Rights Commis­sion, have a statutory power to apply to intervene in judicial proceedings¹⁷⁶). The arguments made by the intervener may lend specific support to the submissions of the applicant or the respondent—albeit that the intervener is not to become an â€?additional counsel for one of the parties’¹⁷⁷—and they may alternatively seek to highlight other points of more general relevance (the ordinarily partisan nature of the third party intervention means that the role performed is different from that of an amicus curiae, who provides the court with an impartial overview and opinion on an aspect of the law).¹⁷⁸ In any event, interventions are taken to have the potential to enhance the judicial decision-making process by providing the court with a much wider range of arguments on germane legal points.¹⁷⁹ Courts must therefore decide how best to reconcile the benefits which may be derived from a third party intervention with the possible incon­venience, delay, and expense that the intervention may cause to the existing parties.¹⁸⁰

[3.40] Importance guidance on interventions is to be found in Practice Direction 1/2013: Third Party Interveners.¹⁸¹ The Direction contains a large amount of detail, but the following points are central to it:

i. Third party interveners may include (but are not limited to) statutory commis­sions, governments and non-governmental organisations.

ii. Interventions may be made in public or private law proceedings.

iii. In some proceedings, more than one party may seek leave to intervene. Joint inter­ventions are possible, and potential interveners are encouraged to work together wherever possible to ensure that proposed interventions are focused and organised.

NIQB 58, [2008] NI 11 (Department of Health and Social Services and Public Safety given notice in proceed­ings concerning the compatibility with Arts 6 and 8 ECHR of art 64 of the Children (Northern Ireland) Order 1995, SI 1995/755 (NI 2): application granted).

¹⁷⁵ See, eg, Re Christian Institute and Ors’ Application [2007] NIQB 66, [2008] NI 86 (challenge to the lawfulness of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, SR 2006/439: inter­ventions by the Archbishop of Armagh and Primate of All Ireland, the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Coalition on Sexual Orientation).

¹⁷⁶ Northern Ireland Act 1998, s 71(2B); and Re Northern Ireland Human Rights Commission [2002] NI 236. See too, eg, the Commissioner for Children and Young People (NI) Order 2003, art 14(1)(b).

¹⁷⁷ Re E (A Child) [2008] UKHL 66, [2009] 1 AC 536, 542, paras 2-3, Lord Hoffmann.

¹⁷⁸ For other cases where third party interventions were made to the courts see, eg, Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2005] NI 188, and Re Neill’s Application [2006] NI 278. On the role of an amicus curiae see Re Northern Ireland Human Rights Commission [2002] NI 236, 261, para 72, Lord Hobhouse.

¹⁷⁹ See JUSTICE/Public Law Project, A Matter of Public Interest: Reforming the law and practice on interventions in public interest cases (London, 1996).

¹⁸⁰ Re Northern Ireland Human Rights Commission [2002] NI 236, 246, para 32, Lord Woolf.

¹⁸¹ Available through www.courtsni.gov.uk.

iv. The granting of permission to intervene in a case is always a matter for the Court.

v. When seeking permission to intervene, an NGO etc should file a letter of applica­tion in the relevant court office at least twenty one working days before the hearing date. The letter should include: the name of the case in question; the name and contact details of the proposed intervener; the nature of the intervener’s interest in the proceedings; an indication of the content of the proposed intervention and how the interests of justice would be promoted by allowing the intervention; the proposed means of intervention, i.e. written and/or oral submissions; whether or not the parties to the proceedings have consented to the application to intervene; details of any previous requests for permission to intervene in the proceedings, including the result; and any other relevant information.

vi. The proposed intervener should send a copy of the letter of application to all parties to the proceedings.

vii. The Court may either refuse or grant permission to intervene. Where permission is granted, this may allow interventions by written submissions only; by written and oral submissions; or by written submissions with the possibility of oral sub­missions being permitted later in the proceedings.

viii. Subject to the discretion of the Court, third party interveners bear their own costs. Orders for costs will not normally be made either in favour of or against inter­veners but such orders may be made if the Court considers it just to do so.

ix. A third party intervener may apply for a Protective Costs Order (on which see [3.35]). Any such application should be made as soon as is practicable after per­mission to intervene is granted.

[3.41] It should lastly be cautioned that, while the courts have become increasingly receptive to third party interventions in recent years, they have made it clear that inter­ventions should be strictly confined �to relevant and apposite matters which directly address the issues before the court’.^[455] It has also been emphasised that submissions that merely repeat points advanced by one of the parties to the case will not be welcomed.^[456]

Where Leave Is Refused: Appeals

[3.42] Where an application for leave is refused, the refusal may be appealed to, or renewed before, the Court of Appeal (on refusals in criminal causes see [3.21]).^[457] While appeals and renewals may both result in an application for leave being granted, the Court of Appeal has emphasised that an appeal can be procedurally advantageous.^[458] The point here is that it is possible for the Court of Appeal in a suitable case on appeal—but not on the renewal of an application for leave—to hear and determine the substantive application under RCJ Order 53, rule 5(8).^[459] This point should, however, be read with the Court of Appeal’s related statement that leave should ordinarily be granted in the High Court where a matter cannot be clearly resolved against the appli­cant, as this will result in any subsequent appeal having the benefit of fuller evidence and submissions from the substantive hearing at first instance.¹⁸⁷

[3.43] It is to be noted that it is only applicants who have rights of appeal at the leave stage. Therefore, respondents and notice parties who wish to challenge the grant of leave cannot do so by way of appeal but must apply to the High Court to have the grant of leave set aside (see [3.26]). In the event that such an application is unsuccessful, the decision of the High Court may be appealed, with the leave of the High Court or the Court of Appeal, to the Court of Appeal.¹⁸⁸ Such appeals must be made within 21 days.¹⁸⁹