24. Appeals Flashcards
Which courts/appeals do the rules in CPR part 52 apply to?
- Appeals to the civil division of the CoA
- Appeals to the High Court
- Appeals to the County Court
- Applications made in the High court OR CoA for permission to appeal to the supreme court -IN- contempt proceedings; and
- Applications to appeal to the supreme court in the CoA (point of difference is for those not in contempt, does not apply to High Court) in proceedings other than contempt
Does not apply to appeal in detailed assessment proceedings against a decision of an authorised court officer
Where does a potentially appellant or respondent require permission to appeal?
- Where the appeal is:
a. About a decision of a judge in the county court,
b. About a decision of a judge high court, or
c. To the court of appeal against a decision in the family court - Where the appeal is from:
a. Divisional court in contempt proceedings
b. Single judge of the high court made on appeal in contempt proceedings
c. Court of appeal in contempt proceedings; or
d. Court of appeal in proceedings other than contempt proceedings - Or as provided in the practice directions
The EXCEPTIONS are where the appeal is against:
4. A committal order in the county or single judge of the High Court not sitting on appeal
5. Refusal to grant habeas corpus or
6. Secure accommodation order
How may permission to appeal be obtained normally (i.e. non-contempt cases)?
UNLESS the appeal is against:
a. High court in contempt proceedings
b. Single judge of the high court made on appeal in contempt proceedings
c. Court of appeal in contempt proceedings; or
It may be made:
1. To the lower court at the hearing at what the decision was to be made or any adjournment of that hearing; or
2. To the appeal court in an appeal notice
Can any further application for permission to appeal where the lower court refuses permission to appeal be made in normal proceedings, by normal proceedings i.e. non-contempt cases not in the court of appeal?
Yes.
Where the lower court refuses:
1. A further application for permission may be made to the appeal court
2. The order refusing permission must specify which court and the level of judge which should hear it
How is permission to appeal made in those certain contempt proceedings?
- An application for permission must be made to the divisional court or single judge of the High Court or the court of appeal (as the case may be); and
- The application must be made within 28 days of the court providing its reasons
How are applications for permission to appeal to courts other than the court of appeal determined?
- Where the application is to an appeal court other than the CoA, it’ll be done on the papers without an oral hearing unless the court otherwise directs or:
- Where, having refused permission, the person requests the decision to be reconsidered at an oral hearing; although
- A judge of the high court, designated civil, or specialist CJ refused permission without an oral hearing and deems is totally without merit, they may order that the applicant may not request it to be reconsidered.
QUICK EXPLANATION lower than CoA (1) will be done without unless directs otherwise but (2) can request it to be at an oral hearing (2) may not if a certain judge deems it totally without merit
A specialist circuit judge means any CJ nominated to sit in circuit commercial, chancery, or TCC lists.
What is a ‘specialist circuit judge’ for the purposes of appeals?
A specialist circuit judge means any CJ nominated to sit in circuit commercial, chancery, or TCC lists
Can a party use the power to apply to set aside a decision made of the court’s own initiative where a relevant judge has deemed the appeal totally without merit so that no oral reconsideration hearing can be requested?
No
By when must a request to reconsider a refusal of permission to appeal be made to courts other than the court of appeal?
Within 7 days after service of the notice that permission has been refused
How are applications for permission to appeal made where they are making that application to the court of appeal?
- On paper, except:
a. They may direct an oral hearing; and
b. MUST direct oral hearing where they consider the application cannot be fairly determined without - Should be listed:
a. No later than 14 days from the date of direction; and
b. Before the judge who made that direction
Unless the court directs otherwise
The CoA may identify in a direction which the party seeking permission should focus its submissions and direct the respondent to serve and file written submissions and to attend the oral hearing
For when and before who should oral hearings for applications to appeal to the court of appeal be listed for?
- No later than 14 days from the date of direction; and
- Before the judge who made that direction
Unless the court directs otherwise
What may the court of appeal direct when directing an oral hearing for permission to appeal?
- The CoA may identify in a direction:
a. what the party seeking permission should focus its submissions on and;
b. direct the respondent to serve and file written submissions and to attend the oral hearing
What is the permission to appeal test on first appeals?
May ONLY be given where:
1. court considers it would have a real prospect of success; or
2. there is some other compelling reason for the appeal to be heard
What may an order allowing for a first appeal do?
- Limit the issues to be heard; and
- Be made subject to conditions
Who needs to give permission for appeals to the court of appeal for any appeal in which there was already an appeal (i.e. a second appeal)?
The court of appeal. Will then be heard there
What are “second appeals”?
any appeal to the court of appeal from:
1. a decision of the County Court,
2. the family court or the High Court
3. which was itself made on appeal,
OR
- a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
What is the permission to appeal test for second appeals?
The appeal would:
1. Have a real prospect of success; and
2. Raise an important point of principle or practice; OR
3. There is some other compelling reason for the CoA to hear it
What must the appeal notice contain?
A request for permission if needed
When must the appeal notice be filed?
- Within such period directed by the lower court; or
- Where no such direction is made, 21 days after the decision date of the lower court which the appellant wishes to appeal
Who does an appellant’s notice of appeal need to be served on?
- As soon as practicable, and in any event not later than 7 days after it is filed
No notice is required for appeal against an interim injunction refused on a without notice basis
Must a respondent to an appeal file and serve anything?
ONLY if they are seeking permission from the appeal court to appeal; or
to uphold the lower court’s decision for different or additional reasons
must they file and serve a respondent’s notice.
Otherwise, they may file and serve a respondent’s notice.
What must a respondent’s notice to an appeal contain?
Where they seek permission to appeal it must be contained within that
When must a respondent’s notice be filed by?
- Such period as may be directed by the lower court; or
- Where the lower court makes no such direction, 14 days after:
a. The date the respondent is served with the notice where:
i. Permission to appeal was given by the lower court; or
ii. Permission to appeal is not required
b. The date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
c. The date the respondent is served with notification that application for permission and the appeal itself are to be heard together.
Who and when by must a respondent’s notice be served upon?
The appellant and any other respondent:
(a) As soon as practicable; and
(b) In any event not later than 7 days
After it is filed.
Are there any cases in which a respondent’s notice to an appeal is not required?
Yes. for an appeal against an interim injunction refused on a without notice basis
What is the position on transcripts in civil appeals?
The lower court or appeal court may direct ON REQUEST that a transcript of the whole or part of the proceedings be obtained at public expense
What must the court be satisfied of before making a direction to obtain a transcript for civil appeals at public expense?
- The request part qualifies for fee remission or is otherwise in poor financial circumstances that the cost of obtaining the transcript would be an excessive burden; and
- It is necessary in the interests of justice
Are there are required ways of asking for a transcript at public expense?
Yes. It must be made in the approved form
Can a variation on the time limit for filing an appeal notice be made?
Yes, upon application to the appeal court.
Cannot be done via agreement where the time limit is in the rules, PDs, or via order fo the court
Will an appeal stay the proceedings below?
No, unless:
1. The appeal court or lower court orders otherwise
2. The appeal is from the immigration and asylum chamber of the upper tribunal
What powers does an appeal court have?
All the powers of the court below.
It can also:
1. Affirm, set aside, or vary any order or judgment from below
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
In cases involving juries, the court of appeal may also (instead of ordering a new trial):
1. Make an order for damages; or
2. Vary an award of damages made by the jury
The appeal court may exercise its power in relation to the whole or part of the lower court’s decision
What may the court of appeal do instead of ordering a new trial in cases involving juries?
instead of ordering a new trial?
- Make an order for damages; or
- Vary an award of damages made by the jury
What should a court consider where it refuses/dismisses/strikes out an appeal?
Whether it was totally without merit
Where a court considers an application/appeal ect was totally without merit, what should it do?
- Record that on the order itself; and
- At the same time consider whether it is appropriate to make a civil restraint order
Are appeals a re-hearing?
No. they will be limited to a review of the decision of the lower court UNLESS:
1. A PD makes different provision for a particular category of appeal (i.e. merchant shipping act or carrier’s liability); or
2. In the individual circumstances of the appeal, the court considers it would be in the interests of justice to hold a re-hearing
What is the position on evidence in civil appeals?
Unless it orders otherwise, the court will not receive:
1. Oral evidence; or
2. Evidence which was not before the lower court.
Where will an appeal court allow an appeal?
Where the decision of the lower court was:
1. Wrong; or
2. Unjust because of a serious procedural or other irregularity in the proceedings
May the appeal court draw any inferences of fact?
Yes, those it considers justified.
May a party rely on a matter not contained in its appeal notice?
No, not unless the court gives permission
When may a re-hearing as an appeal be appropriate?
- It is an exception to the general rule; so
- Some injustice must have occurred
- And a simple failure to put one’s case before the first court is not ordinarily to be cured by a re-hearing
- Must be in the interest of justice
- Material to have regard, in procedural or other irregularity cases, that an appeal will be allowed on such grounds
Patents and trademark appeals are normally just review hearings
Is not giving reasons a ground for holding a re-hearing on appeal?
Not generally, but it would be otherwise if it had been asked to and refused or if there was some good reason for not asking the court to give its reasons.
Conflicting authority on this. Other judges have said not giving may be as if reasons are not set out properly it is very difficult to review them
Would a rehearing be appropriate in an appeal against a decision against an extension of time?
Only if the DJ’s decision was so inadequately reasons that the losing party does not know why they lost.
What is the difference between a re-hearing and a review for an appeal?
The distinction between a mere review and rehearing is not always necessarily clear:
e.g. it may be that they are saying that the judge could not have found the facts he did, rather than just saying his exercise of discretion was wrong.
- Precise meaning will vary from case to case
- But a rehearing is such in the fullest extent of the word
- Review is not to be equated with JR. it will accord appropriate respect to the lower court
Can evidence be received on an appeal re-hearing as well as a review?
Yes.
Where may the court consider that further evidence may be allowed in an appeal?
Matter of discretion, but principles on it include (which are not decisive, nor exhaustive, nor entitles someone to any particular outcome. The main thing is they are a discretion):
1. Whether it could have been obtained with reasonable diligence at trial (which may include proportionality considerations)
2. The evidence must be such that, if give, it would probably have an important influence on the result, though need not be decisive
3. The evidence must be credible, though not incontrovertible
Above principles are from Ladd v Marshall. They are not the sole guiding principles esp in light of the overriding objective
Pre-cpr cases on this will remain persuasive.
May be less strictly applied in cases involving children or in trade mark appeals.
The fact of a haring being a reh-earing may lend itself to fresh evidence. However, if such evidence would lead to a re-trial this should only be allowed if imperative in the interests of justice. Same principle applies for apply for SJ appeals or striking out orders.
Should evidence of changed circumstances be admitted in civil appeals?
Sparingly.
What approaches are available where the fresh evidence shows that a judgment was obtained by fraud?
Firstly, was that the applicant should not be permitted to raise this on appeal, but should commence a fresh action to set it aside.
The second approach is to appeal. If it is admitted or incontrovertible, a retrial will be ordered.
If it is not incontrovertible, it will be referred back to the original trial judge to decide it.
Where fresh evidence is before the appeal court to decide whether a judgment was obtained via fraud, what test should the court apply?
- The court should decide, as a threshold test, whether the evidence could show the judge was deliberately misled and the judgment may have been obtained by fraud
- The evidence must be such as to:
a. Justify a case of forward being pleaded; and
b. Demonstrate conscious and deliberate dishonesty
c. Causing the judgment to be given
If the threshold test is made out then court then must, taking account of the specific facts and circumstances of the case, determine if the matter can be properly remitted on the fraud issue to the trial court. This will be particularly acute where it may have been a fraudulent RTA claim.
Are there any prescribed destinations for appeals in civil?
Yes, there are some as given by the LC
What destination does an appeal from a DJ in the county court go to?
A circuit judge in the county
Who does an appeal from a master or DJ in the high court go to?
A high court judge
Who does an appeal from a circuit judge go to?
A high court judge
Who does an appeal from a high court judge go to?
The court of appeal
What is the destination of appeal for a decision which itself was made on appeal?
Court of appeal
What may happen where a party attempts to file an appellant’s notice in the wrong court?
The court officer may notify them in writing
They first must confer:
1. With a judge of the appeal court; or
2. Where the court of appeal is the appeal court, with a court officer who exercises the jurisdiction of the court
What must the court officer do before notifying a party that they have issued an appellant’s notice in the wrong court?
They first must confer:
1. With a judge of the appeal court; or
2. Where the court of appeal is the appeal court, with a court officer who exercises the jurisdiction of the court
Where may an application for permission to appeal be made where they are not contempt proceedings or from the CoA?
- To the lower court at the hearing at which the decision is given; or
- Where the lower court refuses or no application is made, to the appeal court
What may the court take into account for permission to appeal where the decision is one of case management?
They may take into account whether:
1. The issue is of sufficient significance to justify costs of an appeal;
2. The procedural consequences outweigh the significance (like loss of trial date)
3. It would be more convenient to determine the issue at or after trial.
Include decisions like disclosure, filing of witness statements or reports, directions, adding parties and security for costs
What is the purpose of a skeleton argument for an appeal?
To assist the court by concisely setting out the argument upon which a party intends to rely
What must an appeal skele be/do?
- Concise
- Define and confine areas of controversy
- Set out in numbered paragraphs
- Cross-reference to any relevant document in the bundle
- Be self-contained and not incorporate by reference material from previous skeles
- Not include extensive quotations from documents or authorities
- Identify documents on which it rely
What must an appeal skele do where it is necessary to rely on authority?
It must:
1. State the proposition of law it demonstrates; and
2. Identify the parts which support the proposition
What must the appeal skeleton do if it cites more than one authority in support of a given proposition?
The skeleton argument must briefly state why
Will costs for preparing a non-compliant appeal skeleton be allowed?
If it does not abide by either the content or time limits, it will not be allowed except as directed
In addition to the specifically mentioned matters, what should a drafter of an appeal skeleton do?
Consider what other information the appeal court will need.
This may include a dramatis personae or glossary of technical terms
A chronology will be necessary in most appeals
What must a statement of costs do for the amount claimed for an appeal skeleton argument?
