24. Appeals

Question 1

Which appeals do the rules on appeals that we’re studying apply to?

Answer 1

(1) CoA civil division
(2) High Court
(3) County Court

Question 2

Do you need permission to appeal?

Answer 2

Yes

This is worded somewhat confusingly in the CPR, but the commentary helpfully puts it this way: the general, and almost universal rule, is that the exercise by a party of a right of appeal to the Court of Appeal, to the HC or to the CC, requires the permission of the lower court or of the appeal court.

Question 3

Where may an application for permission to appeal be made?

Answer 3

(1) to the lower court at the hearing at which the decision to be appealed was made (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or
(2) to the appeal court in an appeal notice

Question 4

If a lower court refuses an application for permission to appeal, what can the applicant do?

Answer 4

Make a further application for permission to the appeal court

Question 5

If a lower court refuses permission to appeal what must the order refusing permission specify?

Answer 5

(1) the court to which any further application for permission should be made; and

(2) the level of judge who should hear the application

Question 6

How will a court other than the CoA consider an application for permission to appeal?

Answer 6

On paper without a hearing unless the court otherwise directs.

Question 7

What can an applicant do if an appeal court has refused permission to appeal without a hearing? What is the timeframe for this option? When is the option unavailable?

Answer 7

• Request the decision to be reconsidered at an oral hearing.
• Application must be filed within 7 days after service of the notice that permission has been refused
• The applicant can be deprived of this option if the judge considering the application initially (on paper, without a hearing) considers the application to be totally without merit, but ONLY if the judge in question is a High Court, Designated Civil or a Specialist Circuit Judge.

Question 8

How will an application for permission to appeal to the CoA be determined?

Answer 8

• By the CoA on paper, without a hearing
• BUT the CoA judge considering the application can direct that the application be determined at an oral hearing, and MUST so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing

Question 9

If a hearing for permission to appeal to the CoA is directed, when must the hearing be listed and before which judge? What other directions can the CoA make in relation to the hearing?

Answer 9

Unless the court directs otherwise:

• No later than 14 days from the date of the direction
• Before the judge who made the direction

Other directions:

• Identify any issue or issues on which the party seeking permission should specifically focus in its submissions at the oral hearing in order to assist the court to determine the application; and
• Direct the respondent to serve and file written submissions and to attend the oral hearing

Question 10

What is the test for second appeals?

Answer 10

Permission to appeal will not be given unless the court considers that

(1) the appeal would have a real prospect of success and raise an important point of principle or practice; or

(2) there is some other compelling reason for the CoA to hear it

Question 11

Is permission required for second appeals, and if so who from?

Answer 11

Yes, permission is required from the CoA for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal.

Question 12

How do you request permission to appeal from the appeal court?

Answer 12

By filing an appellant’s notice.

Question 13

When must the appellant’s notice be filed at the appeal court?

Answer 13

Within 21 days after “the date of the decision” under appeal, unless the lower court directs a different period

Question 14

When must the appellant’s notice be served on the respondents?

Answer 14

As soon as is practicable but not later than 7 days after it is filed.

Question 15

When may and when must a respondent file a respondent’s notice to an appeal?

Answer 15

They’re always allowed to file one.

They MUST be file one where they are:

(1) seeking permission to appeal from the appeal court; or
(2) wishing to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court

Question 16

How can a respondent to an appeal seek permission to appeal from the appeal court?

Answer 16

By requesting this in the respondent’s notice

Question 17

What is the timeframe for filing a respondent’s notice?

Answer 17

Either: the period specified by the lower court at the hearing at which the judgment sought to be appealed is given

Or: 14 days after

• (1) if permission was given by the lower court or permission is not required -> the date the respondent is served with the appellant’s notice
• (2) the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
• (3) the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together

Question 18

When must the respondent’s notice be served on the other parties?

Answer 18

As soon as practicable and in any event not later than 7 days after it is filed.

Question 19

Can transcripts be obtained at public expense for the purposes of appeal?

Answer 19

Yes, the lower court or the appeal court can make such an order on the request of a party, but the court must be satisfied that-

(1) the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining a transcript would be an excessive burden; and

(2) it is necessary in the interests of justice for such a transcript to be obtained.

Question 20

Can the time limit for filing an appeal notice be varied? If so, how and by whom?

Answer 20

Yes, but only by the court (not by the parties). Need to appeal to the appeal court for this.

Question 21

Will the appeal operate as a stay of any order or decision of the lower court?

Answer 21

No, not unless the appeal court or the lower court orders otherwise

Question 22

What powers does an appeal court have?

Answer 22

The appeal court has all of the powers of the lower court and can-

(1) affirm, set aside or vary any order or judgment made or given by the lower court
(2) refer any claim or issue for determination by the lower court
(3) order a new trial or hearing
(4) make orders for the payment of interest
(5) make a costs order

Question 23

In a claim tried with a jury, does the CoA have to order a new trial?

Answer 23

No, instead of doing that it can:

(1) make an order for damages; or
(2) vary an award of damages made by the jury

Question 24

Does an appeal court have to exercise its powers in relation to the whole of an order of the lower court?

Answer 24

No - it can also exercise it just in relation to a part of it

Question 25

What must the appeal court do if it refuses an application for permission to appeal, strikes out an appellant’s notice or dismisses an appeal and it considers that the appellant’s notice or the appeal is totally without merit?

Answer 25

(1) It must record the fact that it considers the application, the appellant’s notice or the appeal to be totally without merit; and

(2) The court must consider whether it is appropriate to make a civil restraint order

Question 26

Which issues can be dealt with in an appeal?

Answer 26

Appeals are limited to a review of the decision of the lower court, unless

(1) a PD makes a different provision; or
(2) the court considers that it is in the interest of justice to hold a re-hearing

Question 27

What are the rules of evidence applicable to appeals?

Answer 27

The court will not receive oral evidence or evidence which was not before the lower court (unless ordered otherwise).

This rule applies equally to reviews and rehearings.

Question 28

When will the appeal court allow an appeal?

Answer 28

(1) where the decision of the lower court was wrong; or
(2) where it was unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

Question 29

What factual inferences can the appeal court draw?

Answer 29

Any inference of fact which it considers justified on the evidence

Question 30

At an appeal hearing can a party rely on any matters not included in the appeal notice?

Answer 30

Not unless the court gives permission

Question 31

What principles govern the appeal court’s discretion to admit fresh evidence?

Answer 31

No hard rules. But the pre-CPR case law continue to be highly persuasive. Pre-CPR Ladd v Marshall laid down the following test:

(1) Could the evidence have been obtained with reasonable diligence for use at the trial?
(2) Is the evidence such that, if given, it would probably have an important influence on the result of the case (though it need not be decisive)?
(3) Is the evidence apparently credible (although it does not have to be incontrovertible)?

This ‘test’ is no longer binding, but the principles/ideas are still very persuasive

It has also been held that if the reception of fresh evidence would lead to a re-trial, this should only be allowed “if imperative in the interests of justice”.

Question 32

Describe the approach applied where the proposed fresh evidence on appeal indicates that the original judgment was obtained by fraud.

Answer 32

Traditional approach = this issue should not be raised on appeal. Instead the applicant should commence a fresh action to set aside the original judgment for fraud.

Other approach = Appeal the judgment on the ground that it was obtained by fraud. Where the fraud is either admitted or incontrovertible, a re-trial will be ordered. In the remaining cases, the fraud issue will be remitted to the original trial judge to decide the issue in the proceedings. If the issue of fraud was contested, the court had to determine if the fresh evidence before it warranted a trial on the fraud issue. Test = does the evidence show that the trial judge was deliberately misled and the judgment may have been obtained by fraud? For this, the evidence must be such as to: (a) justify a case of forward being pleaded (I don’t know what this means…) and (b) demonstrate conscious and deliberate dishonesty by a party or someone bribed or knowingly misled by a party, which caused the judgment to be given. If this test is met, then the court can decide whether the matter can be remitted on the fraud issue to the trial judge.

Question 33

What would be the destination of appeal and which judge would decide the appeal if the deciding judge have been a District judge in the County Court?

Answer 33

The case would appear before a circuit judge in the County Court

Unless it’s a decision in non-insolvency proceedings brought pursuant to the Companies Act, then -> would go before a High Court Judge or Registrar

Question 34

What would be the destination of appeal and which judge would decide the appeal if the deciding judge have been a Circuit judge in the County Court?

Answer 34

Before a High Court judge in the High Court

Question 35

Where would an appeal from a decision of a Master, Registrar or District judge in the High Court appear?

Answer 35

Before a High Court judge in the High Court

Question 36

Where would an appeal against a decision of a High Court judge in the High Court appear?

Answer 36

In the CoA

Question 37

Where would an appeal against a decision of a District Judge in the Intellectual Property Enterprise Court appear?

Answer 37

In front of an enterprise judge

Question 38

Where would an appeal against a decision of an Enterprise Judge in the Intellectual Property Enterprise Court appear?

Answer 38

In the CoA

Question 39

Where would an appeal against a decision of a District Judge in the Intellectual Property Enterprise Court appear?

Answer 39

Enterprise Judge

Question 40

What is the destination of a second appeal?

Answer 40

The CoA

Question 41

What happens when an appellant files the appellant’s notice in the wrong court?

Answer 41

A court officer may notify that party in writing that the appeal court does not have jurisdiction in respect of the notice. They must first confer with a judge of the appeal court or if the CoA is the appeal court, with a court officer who exercises jurisdiction of the CoA.

Question 42

What can the court take into account when the application for permission to appeal is from a case management decision? What decisions does the term ‘case management’ decision include for this purpose?

Answer 42

(1) the issue is of sufficient significance to justify the costs of an appeal
(2) the procedural consequences of an appeal outweigh the significance of the case management decision
(3) it would be more convenient to determine the issue at or after trial

Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts’ reports, directions about the timetable of the claim, adding a party to a claim and security for costs.

Question 43

What is the purpose of a skeleton argument?

Answer 43

To assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely

Question 44

What must a skeleton argument do?

Answer 44

(1) be concise
(2) define and confine the areas of controversy.
(3) be set out in numbered paragraphs
(4) be cross-referenced to any relevant document in the bundle
(5) be self-contained and not incorporate by reference material from previous skeleton arguments.
(6) not include extensive quotations from documents or authorities.

Also:

• Documents to be relied on must be identified
• Where it is necessary to refer to an authority, a skeleton argument must (a) state the proposition of law the authority demonstrates; and (b) identify the parts of the authority that support the proposition
• If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why

Question 45

What is the consequence of a skeleton argument not complying with the rules that apply to it or filing it late?

Answer 45

The cost of preparing a skeleton argument which does not comply with the requirements set out in PD52A or was not filed within the time limits provided will not be allowed on assessment except as directed by the court.

N.B. we’re not told what the time limit is

Question 46

What else should the parties consider providing to the court (in addition to what they are told they must provide in the skeleton argument)?

Answer 46

Any other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.

Question 47

What must a statement of costs show for the skeleton argument?

Answer 47

The amount claimed for the skeleton argument must be stated separately.