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An appeal is fundamentally an affair pertaining to the transcendence of a particular court in order to solicit and invoke the authority of one of a higher level. So what is originally the purpose of this practice, of many lower courts requiring one to seek their own permission in order to appeal their decisions on to the higher courts that sit above them?

After all, if permission is granted, then presumably the higher court’s permission is still nonetheless required in order for it to hear the appeal. And if it is denied, then one can seemingly always just seek the higher/appellate court’s permission to make the appeal.

So what is the significance of this extra (seemingly usually required, yet apparently all but ceremonial) step? Is it mostly customary?

Is it a practical relic from when postal correspondence and travel were more necessary and more costly?

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In the United States, there are many orders that a court can enter which are generally not appealable since the case is not fully concluded, but that a trial court can certify as eligible for an immediate appeal.

Sometimes this is done because the order concludes the case for some parties without influencing the parties who remain in the case, so there is no good reason to delay the appellate process for the parties who remain in the case.

At other times, the court recognizes that its decision was based upon a close question of law that could have gone either way in the hands of another reasonable judge, and that the decision will profoundly impact the future course of the case causing lots of wasted time for everyone if the issue is reversed on appeal. In this case, the court may prefer to go forward on a more firm foundation to prevent that possibility.

In some other contexts in U.S. law (such as prisoner's petitions), closer to what the question is probably getting at, it was conceived as a way of screening frivolous appeals in cases often brought by people without lawyers. This kind of requirement for permission is somewhat controversial because it presents the kind of tension between an appeal being available when a trial court gets it wrong and the fear that the trial court might try to procedurally wrongfully cover up its own mistakes, that the question suggests.

In any case, it is not just a relic of postal correspondence and travel being more necessary and more costly. Indeed, in many cases (especially in England and Wales, but also in many U.S. contexts), the distance from the court handling the case at the trial level and the court handling the appeal isn't far at all (sometimes the respective courts are even in the same building or within a few blocks of each other).

Also, postal service is slower and less frequent than it was when the practice was first established. At one point, mail would be delivered several times over the course of the day. There are old contract formation cases studied in law school with several rounds letters back and forth exchanged via the postal system in the same day in urban areas.

If anything, it represents a somewhat less modern sense of a judge's role and what the appeal process is about, rather than anything technological.

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    I was mainly referring to appeals of final decisions that resolve cases in one or another party’s favour. Commented Jan 15 at 2:42
  • I see. Is there any way you could further elaborate on the idea of the last paragraph? Commented Jan 15 at 2:44
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The premise of your question is incorrect:

After all, if permission is granted, then presumably the higher court’s permission is still nonetheless required in order for it to hear the appeal.

If the lower court grants permission, then you have permission. There is no need to re-seek permission at the appeal court. You simply file the appeal notice.

With that out of the way, the answer is fairly straightforward and is actually contained in your question:

An appeal is fundamentally an affair pertaining to the transcendence of a particular court in order to solicit and invoke the authority of one of a higher level.

The same logic applies to the permission process. By being able to first apply for permission at the lower court, you are given an opportunity to "appeal" a refusal of permission. Technically that isn't itself an appeal, but the outcome is the same; you are able to request that a higher court step in to reverse a decision to refuse permission from a lower court.

Without the option of a two-stage permission process, you'd effectively grant courts an unchecked power to refuse appeal permission with no recourse. This would be at odds with the purpose of the appeals process which is the ability to review and overturn decisions.

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