6.1 Documents, procedure and hearings

Question 1

What goes into the appellant’s notice?

Answer 1

1.
Grounds;
2.
arguments;
3.
the order sought;
4.
evidence in support.

Question 2

What is the deadline for filing an appellant’s notice?

Answer 2

CPR 52.12
(2)
The appellant must file the appellant’s notice at the appeal court within—
(a)
such period as may be directed by the lower court …; or
(b)
where the court makes no such direction… 21 days after the date of the decision of the lower court which the appellant wishes to appeal.

Question 3

Can the parties agree to extend the deadline for applying for permission to appeal?

Answer 3

CPR 52.15
(1)
An application to vary the time limit for filing an appeal notice must be made to the appeal court.
(2)
The parties may not agree to extend any date or time set by—
(a)
these Rules;
(b)
Practice Directions 52A to 52E; or
(c)
an order of the appeal court or the lower court.

Question 4

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

Answer 4

CPR 52.12(3)
Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent—
(a)
as soon as practicable; and
(b)
in any event not later than 7 days,
after it is filed.

Question 5

What must the respondent do to appeal an appeal decision it is not happy with?

Answer 5

CPR 52.13(2)
A respondent who—
(a)
is seeking permission to appeal from the appeal court; or
(b)
wishes 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,
must file a respondent’s notice.

Question 6

When is the deadline for the respondent to file its respondent’s notice?

Answer 6

CPR 52.13
(4)
A respondent’s notice must be filed within—
(a)
such period as may be directed by the lower court; or
(b)
where the court makes no such direction, 14 days after the date in paragraph (5).
(5)
The date referred to in paragraph (4) is—
(a)
the date the respondent is served with the appellant’s notice …
(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 the application for permission to appeal and the appeal itself are to be heard together.

Question 7

When must the respondent serve its respondent’s notice on the appellant and any other respondents?

Answer 7

CPR 52.13(6)
Unless the appeal court orders otherwise, a respondent’s notice must be served on 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 8

When must the appeal bundle be filed?

Answer 8

52B PD 6.3
As soon as practicable, but in any event within 35 days of the filing of the appellant’s notice, the appellant must file an appeal bundle which must contain only those documents relevant to the appeal…

Question 9

When is a skeleton argument necessary for an appeal?

Answer 9

52B PD 8.3
Subject to any order of the court, the parties to the appeal should file and serve skeleton arguments only where –
(a)
the complexity of the issues of fact or law in the appeal justify them; or
(b)
skeleton arguments would assist the court in respects not readily apparent from the papers in the appeal.

Question 10

What is the purpose of a skeleton argument?

Answer 10

52B PD 5.1(1)
The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

Question 11

What kind of evidence is used in an appeal?

Answer 11

CPR 52.21(2)
Unless the court orders otherwise, the appeal court will not receive -
(a)
oral evidence; or
(b)
evidence which was not before the lower court.

Question 12

Does an appeal take the form of a review or a re-hearing?

Answer 12

CPR 52.21(1)
Every appeal will be limited to a review of the decision of the lower court unless—
(a)
a practice direction makes different provision for a particular category of appeal; or
(b)
the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

Question 13

Under what circumstances will the appeal court allow fresh evidence to be heard under CPR 52.21(2)(b)?

Answer 13

Ladd v Marshall [1954] 1 WLR 1489
The general rule as stated in this case is that fresh evidence will not be allowed unless it
1.
could not have been obtained with reasonable diligence for use in the lower court,
2.
would probably have an importance influence on the result and
3.
is apparently credible.

Question 14

When will the appeal court exercise its discretion to allow a new point of law that was not raised in the trial?

Answer 14

Pitallis v Grant [1989] QB 605 (CA)
1.
The appellate court will be cautious;
2.
generally, it will not permit a new point of law that would necessitate new evidence;
3.
allow even ‘pure’ points of law only:
(a)
where the other party has adequate time to deal with the point;
(b)
where the other party has not acted to its detriment in reliance on the earlier omissions; and
(c)
the other party can be adequately protected on costs.

Question 15

What powers does the appeal court have?

Answer 15

CPR 52.20
(1)
In relation to an appeal the appeal court has all the powers of the lower court.
(2)
The appeal court has power to—
(a)
affirm, set aside or vary any order or judgment made or given by the lower court;
(b)
refer any claim or issue for determination by the lower court;
(c)
order a new trial or hearing;
(d)
make orders for the payment of interest;
(e)
make a costs order.

Question 16

What should the appeal court do if it determines that an appeal is totally without merit?

Answer 16

CPR 52.20(6)
(a)
the court’s order must record the fact that it considers the application, the appellant’s notice or the appeal to be totally without merit; and
(b)
the court must at the same time consider whether it is appropriate to make a civil restraint order.