24. Appeals

Question 1

Which courts/appeals do the rules in CPR part 52 apply to?

Answer 1

1. Appeals to the civil division of the CoA
2. Appeals to the High Court
3. Appeals to the County Court
4. Applications made in the High court OR CoA for permission to appeal to the supreme court -IN- contempt proceedings; and
5. 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

Question 2

Where does a potentially appellant or respondent require permission to appeal?

Answer 2

1. 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
2. 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
3. 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

Question 3

How may permission to appeal be obtained normally (i.e. non-contempt cases)?

Answer 3

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

Question 4

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?

Answer 4

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

Question 5

How is permission to appeal made in those certain contempt proceedings?

Answer 5

1. 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
2. The application must be made within 28 days of the court providing its reasons

Question 6

How are applications for permission to appeal to courts other than the court of appeal determined?

Answer 6

1. 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:
2. Where, having refused permission, the person requests the decision to be reconsidered at an oral hearing; although
3. 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.

Question 7

What is a ‘specialist circuit judge’ for the purposes of appeals?

Answer 7

A specialist circuit judge means any CJ nominated to sit in circuit commercial, chancery, or TCC lists

Question 8

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?

Answer 8

No

Question 9

By when must a request to reconsider a refusal of permission to appeal be made to courts other than the court of appeal?

Answer 9

Within 7 days after service of the notice that permission has been refused

Question 10

How are applications for permission to appeal made where they are making that application to the court of appeal?

Answer 10

1. 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
2. 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

Question 11

For when and before who should oral hearings for applications to appeal to the court of appeal be listed for?

Answer 11

1. No later than 14 days from the date of direction; and
2. Before the judge who made that direction
   Unless the court directs otherwise

Question 12

What may the court of appeal direct when directing an oral hearing for permission to appeal?

Answer 12

1. 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

Question 13

What is the permission to appeal test on first appeals?

Answer 13

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

Question 14

What may an order allowing for a first appeal do?

Answer 14

1. Limit the issues to be heard; and
2. Be made subject to conditions

Question 15

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)?

Answer 15

The court of appeal. Will then be heard there

Question 16

What are “second appeals”?

Answer 16

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

1. 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.

Question 17

What is the permission to appeal test for second appeals?

Answer 17

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

Question 18

What must the appeal notice contain?

Answer 18

A request for permission if needed

Question 19

When must the appeal notice be filed?

Answer 19

1. Within such period directed by the lower court; or
2. Where no such direction is made, 21 days after the decision date of the lower court which the appellant wishes to appeal

Question 20

Who does an appellant’s notice of appeal need to be served on?

Answer 20

1. 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

Question 21

Must a respondent to an appeal file and serve anything?

Answer 21

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.

Question 22

What must a respondent’s notice to an appeal contain?

Answer 22

Where they seek permission to appeal it must be contained within that

Question 23

When must a respondent’s notice be filed by?

Answer 23

1. Such period as may be directed by the lower court; or
2. 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.

Question 24

Who and when by must a respondent’s notice be served upon?

Answer 24

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.

Question 25

Are there any cases in which a respondent’s notice to an appeal is not required?

Answer 25

Yes. for an appeal against an interim injunction refused on a without notice basis

Question 26

What is the position on transcripts in civil appeals?

Answer 26

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

Question 27

What must the court be satisfied of before making a direction to obtain a transcript for civil appeals at public expense?

Answer 27

1. 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 2. It is necessary in the interests of justice

Question 28

Are there are required ways of asking for a transcript at public expense?

Answer 28

Yes. It must be made in the approved form

Question 29

Can a variation on the time limit for filing an appeal notice be made?

Answer 29

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

Question 30

Will an appeal stay the proceedings below?

Answer 30

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

Question 31

What powers does an appeal court have?

Answer 31

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

Question 32

What may the court of appeal do instead of ordering a new trial in cases involving juries? instead of ordering a new trial?

Answer 32

1. Make an order for damages; or 2. Vary an award of damages made by the jury

Question 33

What should a court consider where it refuses/dismisses/strikes out an appeal?

Answer 33

Whether it was totally without merit

Question 34

Where a court considers an application/appeal ect was totally without merit, what should it do?

Answer 34

1. Record that on the order itself; and 2. At the same time consider whether it is appropriate to make a civil restraint order

Question 35

Are appeals a re-hearing?

Answer 35

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

Question 36

What is the position on evidence in civil appeals?

Answer 36

Unless it orders otherwise, the court will not receive: 1. Oral evidence; or 2. Evidence which was not before the lower court.

Question 37

Where will an appeal court allow an appeal?

Answer 37

Where the decision of the lower court was: 1. Wrong; or 2. Unjust because of a serious procedural or other irregularity in the proceedings

Question 38

May the appeal court draw any inferences of fact?

Answer 38

Yes, those it considers justified.

Question 39

May a party rely on a matter not contained in its appeal notice?

Answer 39

No, not unless the court gives permission

Question 40

When may a re-hearing as an appeal be appropriate?

Answer 40

1. It is an exception to the general rule; so 2. Some injustice must have occurred 3. And a simple failure to put one’s case before the first court is not ordinarily to be cured by a re-hearing 4. Must be in the interest of justice 5. 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

Question 41

Is not giving reasons a ground for holding a re-hearing on appeal?

Answer 41

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

Question 42

Would a rehearing be appropriate in an appeal against a decision against an extension of time?

Answer 42

Only if the DJ’s decision was so inadequately reasons that the losing party does not know why they lost.

Question 43

What is the difference between a re-hearing and a review for an appeal?

Answer 43

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. 1. Precise meaning will vary from case to case 2. But a rehearing is such in the fullest extent of the word 3. Review is not to be equated with JR. it will accord appropriate respect to the lower court

Question 44

Can evidence be received on an appeal re-hearing as well as a review?

Answer 44

Yes.

Question 45

Where may the court consider that further evidence may be allowed in an appeal?

Answer 45

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.

Question 46

Should evidence of changed circumstances be admitted in civil appeals?

Answer 46

Sparingly.

Question 47

What approaches are available where the fresh evidence shows that a judgment was obtained by fraud?

Answer 47

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.

Question 48

Where fresh evidence is before the appeal court to decide whether a judgment was obtained via fraud, what test should the court apply?

Answer 48

1. 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 2. 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.

Question 49

Are there any prescribed destinations for appeals in civil?

Answer 49

Yes, there are some as given by the LC

Question 50

What destination does an appeal from a DJ in the county court go to?

Answer 50

A circuit judge in the county

Question 51

Who does an appeal from a master or DJ in the high court go to?

Answer 51

A high court judge

Question 52

Who does an appeal from a circuit judge go to?

Answer 52

A high court judge

Question 53

Who does an appeal from a high court judge go to?

Answer 53

The court of appeal

Question 54

What is the destination of appeal for a decision which itself was made on appeal?

Answer 54

Court of appeal

Question 55

What may happen where a party attempts to file an appellant’s notice in the wrong court?

Answer 55

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

Question 56

What must the court officer do before notifying a party that they have issued an appellant’s notice in the wrong court?

Answer 56

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

Question 57

Where may an application for permission to appeal be made where they are not contempt proceedings or from the CoA?

Answer 57

1. To the lower court at the hearing at which the decision is given; or 2. Where the lower court refuses or no application is made, to the appeal court

Question 58

What may the court take into account for permission to appeal where the decision is one of case management?

Answer 58

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

Question 59

What is the purpose of a skeleton argument for an appeal?

Answer 59

To assist the court by concisely setting out the argument upon which a party intends to rely

Question 60

What must an appeal skele be/do?

Answer 60

1. Concise 2. Define and confine areas of controversy 3. Set out in numbered paragraphs 4. Cross-reference to any relevant document in the bundle 5. Be self-contained and not incorporate by reference material from previous skeles 6. Not include extensive quotations from documents or authorities 7. Identify documents on which it rely

Question 61

What must an appeal skele do where it is necessary to rely on authority?

Answer 61

It must: 1. State the proposition of law it demonstrates; and 2. Identify the parts which support the proposition

Question 62

What must the appeal skeleton do if it cites more than one authority in support of a given proposition?

Answer 62

The skeleton argument must briefly state why

Question 63

Will costs for preparing a non-compliant appeal skeleton be allowed?

Answer 63

If it does not abide by either the content or time limits, it will not be allowed except as directed

Question 64

In addition to the specifically mentioned matters, what should a drafter of an appeal skeleton do?

Answer 64

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

Question 65

What must a statement of costs do for the amount claimed for an appeal skeleton argument?