22 Appeals Flashcards
Lower court CC DJ APPEAL COURT?
Appeal court CC Circuit Judge
Lower court HC Master APPEAL COURT?
Appeal court HC Judge
Lower court CC Judge APPEAL COURT?
Appeal court HC Judge
Lower court HC Judge APPEAL COURT?
Appeal court CA
Lower court CA APPEAL COURT
Appeal court Supreme Court
Insolvency appeal routes
Court Deciding: County Court
Who is the Deciding jUdge?
DJ or CJ
At the high court
Court Deciding = highH COURT
Registrar or HCJ
Court Deciding judge Decision under appeal Destination === IPEC
IPEC District Judge Any Enterprise Judge IPEC Enterprise Judge Any Court of Appeal
Court Deciding judge Destination Insolvency Appeal Routes COUNTY COURT
County Court DJ or CJ HCJ
What is the exception to basic appeal routes
1) Second appeals
Second appeals = appeal route ALWAYS CA.
Permission to bring second appeal: more onerous test.
What is a second appeal?
Example: Interim application is made to the CC DJ First appeal is to the CC CJ (the usual route of appeal) Any further appeal from CC CJ goes to CA (being a second appeal)
Is permission required for appeal?
PERMISSION TO APPEAL
NORM permission required – 4 exceptions (3 where A in custody) + 1 on costs assessments.
What is the test for FIRST appeals?
TEST for first appeals= Permission to appeal given where:
- Appeal has real prospect of success; or
- Some other compelling reason
Real prospect of success = MUST be realistic NOT fanciful.
Procedure for permission to appeal
Different procedure depending if appeal to:
- CC or HC;
- CA
Procedure on appeals to CC or HC
Permission:
- May initially be made ORALLY to lower court at hearing.
- Made in appeal notice to appeal court
- Where lower court refuses permission – further app made to appeal court (appeal notice), and determined on paper without an oral hearing.
- If appeal court refuses on paper, A may request decision within 7 days of being served with notice of refusal to be reconsidered @ oral hearing.
Court notifies R of oral hearing, R NOT expected to attend unless directed.
What happens if appeal court refuses appeal on paper?
A may request decision within 7 days of being served with notice of refusal to be reconsidered @ oral hearing.
Procedure on appeals to CA
Permission:
- Made ORALLY to lower court at hearing
- Made in appeal notice to appeal court
- CA norm determines app on the papers.
- If CA judge thinks it cannot fairly be determined on papers, MAY make direction app be determined @ oral hearing:
- Direction MAY identify issues A should focus its submissions
- Direction MAY require R to file + serve written submissions;
- MAY require R to attend oral hearing
What happens if there is an oral hearing for permission to appeal
IN THE CA.
Oral hearing for permission to appeal in CA MUST be listed no later than 14 days from date of direction + heard by judge making direction
Test for granting permission to appeal on second appeals
Permission to make second appeal ONLY be sought from the CA.
Permission for second appeal will only be granted if –
- Appeal raised prospect of success; AND
- Raises an important point of principle or practice; OR
- Some other compelling reason
- This applies both where the appellant:
- Lost both at the initial hearing and on the appeal to the CC CJ
- Won at the initial hearing, but lost the appeal to the CC CJ
Permission for second appeal TEST
Permission for second appeal will only be granted if –
- Appeal raised prospect of success; AND
- Raises an important point of principle or practice; OR
- Some other compelling reason
TIME LIMIT for appeal
21 days from date of decision of lower court.
Variation of time limit for appeal
= Apps to extend 21 day period made in appellant’s notice.
Extensions CANNOT be agreed between parties
Apps for extensions of time are considered applying principles on relief from sanctions (Denton v White).
Appellant’s Skeleton argument required for appeal?
Reasons why decision under appeal is wrong or unjust must NOT be included in grounds of appeal + MUST be confined to SA.
In CA, Skeleton Argument MUST:
- Not norm exceed 25 pages;
- Be on A4, not less than 12-point fond, 1.5 line spacing
All Skeleton Arguments MUST:
- Be concise
- Both define + confine areas of controversy
- Be set out in numbered paras
- Be cross-referenced to any relevant docs in bundle
- Be self-contained + not incorporate by ref materials from previous SA
- Not include extensive quotations.
Where necessary to refer to authority, a Skeleton Argument MUST:
- State proposition of law the authority demonstrates; and
- Identify parts of authority that support the proposition
If more than one authority cited in support of proportion, SA MUST briefly state why.
What are the grounds of appeal?
Grounds of appeal = MUST set out grounds of appeal. This MUST identify concisely the judgment of court below was either:
- Wrong; or
- Unjust because of a serious procedural or other irregularity
Where A seeks permission to appeal. what MUST be stated in appelllant’s notice.
That A seeks permission to appeal,
Applications within appeals
interim apps within appeals MAY be made either including them in appellant’s notice, or by issuing separate Part 23 notice of app.
Apps to Extend time to appeal =
Can be made by including the app in appellant’s notice or separately.
What is an appellant’s notice
Apellant’s Notice (and order granting permission) defines appeal issues = Party may NOT rely on issue not contained in that party’s appeal notice unless permission granted.
Can you amend an appellant’s notice?
Amendment of AN = ONLY be amended with permission.
A MUST file appellant’s notice within 21 days after decision of lower court + MUST serve it on parties within 7 days of being filed.
What are the time limites for appellant’s notice
A MUST file appellant’s notice within 21 days after decision of lower court + MUST serve it on parties within 7 days of being filed.
Is a Respondent’s Notice required for appeals?
Respondent’s Notice
IS REQUIRED unless R is simply relying on reasons of court below.
Where R counter-appeals = R MUST have permission to appeal.
Where the Respondent counter appeals, the Respondent’s notice must:
R’s notice MUST be filed 14 days after date:
- R served with appellant’s notice where
- Permission given by lower court;
- Permission to appeal not required
- Date R was notified A got permission;
- Date R served notification app for permission + appeal heard together
Respondent’s Notice MUST be served 7 days after filed.
what isn an APPEAL HEARING
It is a REVIEW, not rehearing.
Every appeal will be limited to REVIEW of decision of lower court – UNLESS
- PD makes different; or
- Court considers it would be in the interests of justice to hold a re-hearing.
Every appeal will be limited to REVIEW of decision of lower court – UNLESS
- PD makes different; or
- Court considers it would be in the interests of justice to hold a re-hearing.
EXCEPTIONS where appeal is by Rehearing NOT Review
Gen rule = all appeals by review. Undesirable to attempt to formulate criteria. Material to consider if the alleged lower court’s decision is unjust because of serious procedural or other irregularity.
To have rehearing not review, some injustice MUST have occurred. Asking lower court for reasons + none given or reasons so inadequate.
Grounds for allowing appeal
- Wrong
- Unjust through some serious procedural or other irregularity
Review v Rehearing
Review involves = looking @ docs seen by lower court + asking is something is seriously wrong. On review = appropriate respect given to lower court’s decision. Very difficult to overturn lower court’s decision if based on exercise of discretion.
Rehearing = appeal court consider material afresh + makes own decision.
Power to receive fresh evidence applies on review + rehearings.
Review is NOT
judicial review.
Rehearing appropriate if judge’s decision so inadequately reasoned losing party doesn’t know why it lost
Is FRESH EVIDENCE allowed?
Appeals = reviews, so norm rule = only look at material before lower court.
Basic rule: deploy whole case @ first instance. Cannot bring extra material on appeal.
Appeal courts MAY allow fresh evidence.
“special grounds” required before fresh evid admitted. Due regard given for finality. Court considers proportionality in costs of investigating point.
TRANSCRIPTS
Except where claim allocated to SMALL CLAIMS TRACK, appellant MUST obtain transcript or other record of reasons of lower court -
Transcript of judgment gen required. Except where claim allocated to SMALL CLAIMS TRACK, appellant MUST obtain transcript or other record of reasons of lower court –
- Where judgment officially recorded, A MUST apply for approved transcript within 7 days of filing AN;
- Where judgment under appeal been handed down in writing, A MUST obtain + retain copy
- Other case = A MUST cause a note of judgment under appeal to be made + types. Parties agree note -) sent to judge for approval. Parties have duty to make + co-operate in agreeing a note of judgment.
TRANSCRIPTS
Except where claim allocated to ___________ appellant MUST obtain transcript or other record of reasons of lower court –
SMALL CLAIMS TRACK,
Lower court/ appeal court MAY direct transcript obtained @ public expense if:
1.
- A qualifies for fee remission; and
- Necessary in interests of justice.
NOT PRIMARY RULES but relevant consideration for fresh evidence:
- Evidence couldn’t have been obtained with reasonable diligence
- Evidence would have important influence on result (doesn’t need to be decisive)
- Evidence credible
On appeal from interim decision = fresh evidence MAY be permitted if material change of circumstances.
Evidence of changed circumstances should only be sparingly admitted.
APPEAL COURT POWERS =
What are their powers?
MAY draw inference of facts which is justified on evid. Appeal court has ALL powers of lower court. Appeal court has power to:
- Affirm, set aside, vary order/judgment
- Refer any claim/issue for determination by lower court
- Order new trial or hearing
- Make orders for payment of interest
- Make a costs order
Appeal court MAY exercise decision to whole/part of order of lower court.
Can you have a collateal attack on interim decisions?
Interim appeals MUST be respected = Cannot have a collateral attack on interim decision.
APPEAL TOTALLY WITHOUT MERIT
If appeal court:
- refuses permission;
- strike out appellant’s notice; or
- dismisses appeal
AND considers app, appellant’s notice or appeal totally without merits, then:
- Court’s order MUST record that fact; AND
- At same time, consider whether to make a civil restraint order.
Don’t need permission to appeal where:
- liberty of subject is in issue. OR
- appeal from decision in detailed assessment proceedings to costs judge or District Judge.
When does judgment take effect?
Judgment takes effect from day it was given. Judgment for money MUST be complied with within 14 days of judgment
For PI cases, can the court make provisional damages?
yes
But PoC MUST include a claim for this.
Who normally draws up the order?
Normally the court will draw up the order but:
- In the QBD, TCC and Commercial Court, orders are norm drawn up by the parties. Elsewhere it is norm done by court.
Every order MUST state:
name + judicial title of judge who made it. Party required to draw up judgment allowed 7 days to file document with copies.
TOMLIN ORDERS
Tomlin orders = Proceedings stayed on agreed terms scheduled to order.
For Tomlin orders, what are schedule terms?
Schedule terms NOT part of order + cannot be enforced as order.
SO no money judgment can be enforced + cannot carry statutory interest. Terms not enforceable without further order. Terms not for approval by judge. Judge WILL approve order itself though, i.e.:
- Proceedings are stayed
- Payment of monies payed into court
- For costs for be assessed.
Tomlin order contains binding contract. Thus 6 year time limit applies. Settlement in Tomlin order is a commercial instrument. If terms too vague = court will decline to enforce them under “permission to apply” provision of order. Parties can include in schedule which court couldn’t have ordered + which goes beyond dispute itself.
