Appeals

Question 1

permission to appeal is requires except where the appeal is against —

Answer 1

• committal order
• a refusal to grant habeas corpus
• a secure accommodation order

Question 2

An application for permission to appeal may be made—

Answer 2

(a) to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or
(b) to the appeal court in an appeal notice.

Question 3

Where the lower court refuses an application for permission to appeal—

Answer 3

(a) a further application for permission may be made to the appeal court;

and

(b) the order refusing permission must specify the court to which any further application for permission should be made and the level of judge who should hear the application.

Question 4

Where an application for permission to appeal is made to an appeal court other than the Court of Appeal, the appeal court will determine the application…

Answer 4

…on paper without an oral hearing

Question 5

where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may…

Answer 5

…request the decision to be reconsidered at an oral hearing.

the request must be filed within 7 days after service of the notice that permission has been refused.

Question 6

Where in the appeal court a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without an oral hearing and considers that the application is totally without merit, the judge may…

Answer 6

…make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing.

Question 7

Where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing, except where…

Answer 7

…the judge considering the application on paper may 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 8

where an application for permission to appeal is made in the Court of Appeal and an oil hearing is requested, the oral hearing must be listed —

Answer 8

(a) no later than 14 days from the date of the direction under that paragraph; and
(b) before the judge who made that direction,

unless the court directs otherwise.

Question 9

for a permission to appeal, which is being heard orally to the court of appeal, the Court of Appeal may, in any direction—

Answer 9

(a) identify any issue or issues on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and
(b) direct the respondent to serve and file written submissions and to attend the oral hearing.

Question 10

what is the test for permission to appeal in the case of first appeals?

Answer 10

(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.

Question 11

what can the court do when giving permission to appeal in first appeals?

Answer 11

the appeal itself can:
- have a limit of the issues to be heard; and
- be made subject to conditions.

Question 12

“the court considers that the appeal would have a real prospect of success”, what standard is used for this?

Answer 12

same as when default judgment is to be set aside.

Swain v Hillman test

Question 13

what is the test for permission to appeal for Second Appeals?

Answer 13

• the appeal would have a real prospect of success AND raise an important point of principle or practice; or
• there is some other compelling reason for the Court of Appeal to hear it.

Question 14

how does an appellant seek permissions to appeal?

Answer 14

file an appellant’s notice

Question 15

time limits for the appellant t to file an appellant’s notice

Answer 15

(a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; 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 16

when must the appellant serve notice on the respondents?

Answer 16

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 17

when MAY a respondent file and serve a respondent’s notice?

Answer 17

when the respondent wants the original result to remain

Question 18

when MUST a respondent file and serve a respondent’s notice?

Answer 18

• Respondent wants to change or vary or change the original decision; or
• respondent wants the original result to remain but for further/additional/different reasons.

Question 19

Where the respondent seeks permission from the appeal court it must…

Answer 19

…be requested in the respondent’s notice.

Question 20

A respondent’s notice must be filed within—

Answer 20

(a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing;

OR

(b) where the court makes no such direction, 14 days after the date of:
- permission to appeal
- respondent is served with the permission to appeal
- respondent is served with notification that permission to and the appeal is heard together

Question 21

when must the respondents notice be served?

Answer 21

(a) as soon as practicable; and
(b) in any event not later than 7 days,
after it is filed.

Question 22

can the official transcript of the lower court be obtained for the purpose of the appeal?

Answer 22

Yes. the court may obtain it on application of the appellant and seek it on the public’s expense.
where —
- applicant can have fee remission; and
- necessary for the interests of justice

Question 23

can a party apply to vary the time limit for filing appeals notice?

Answer 23

Yes. must be made to the appeal court

Question 24

can an appeal act as a stay in proceedings?

Answer 24

No. unless—
(a) the appeal court or the lower court orders otherwise; or
(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,

Question 25

what powers does an appeal court have?

Answer 25

• affirm, set aside or vary any order or judgment set by the lower court;
• refer any claim or issue for determination to the lower court;
• order a new trial or hearing;
• make order for payment of interests;
• make a costs order

Question 26

what is the nature of an appeal?

Answer 26

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 27

what are the limitations regarding evidence in an appeal?

Answer 27

Unless it orders otherwise, the appeal court will not receive—
(a) oral evidence; or
(b) evidence which was not before the lower court.

Question 28

The appeal court will allow an appeal where the decision of the lower court was—

Answer 28

(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

Question 29

At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless…

Answer 29

…the court gives permission

Question 30

The appeal court may draw any…

Answer 30

…inference of fact which it considers justified on the evidence.

Question 31

if you are appealing from a county court district judge, who hears the appeal?

Answer 31

county court circuit judge

Question 32

if you are appealing a decision from a county court district judge dealing with insolvency proceedings, who hears the appeal?

Answer 32

High Court

Question 33

if you are appealing a decision from a county court circuit judge, who hears the appeal?

Answer 33

high court judge

Question 34

if you are appealing a decision from a high court master, who hears the appeal?

Answer 34

high court judge

Question 35

if you are appealing a decision from a high court judge, who hears the appeal?

Answer 35

Court of appeal

Question 36

a court lower than the Court of Appeal can transfer a first appeal directly to the Court of Appeal where —

Answer 36

a) the appeal will raise an important point of principle or practice; or
b) there is some other compelling reason for the Court of Appeal to hear it.

This power will be used sparingly and in exceptional circumstances.

Question 37

Where a party attempts to file an appellant’s notice in a court which does not have jurisdiction to issue the notice, a court officer may…

Answer 37

…notify that party in writing that the appeal court does not have jurisdiction in respect of the notice.

Question 38

before the court officer notifies that party in writing that the appeal court does not have jurisdiction in respect of the notice, the court officer must confer—

Answer 38

(a)with a judge of the appeal court; or
(b)where the Court of Appeal is the appeal court, with a court officer who exercises the jurisdiction of that Court

Question 39

Appeals. Review or rehearing? commentary 52.21.1

Answer 39

(1) The general rule is that appeals at all levels will be by way of review…
(2) A decision to hold a re-hearing will only be justified where the appeal court considers that in the circumstances of the individual appeal it is in the interests of justice to do so.
(3) It is undesirable to attempt to formulate criteria to be applied by the appeal court in deciding whether to hold a re-hearing. …
(4) In a case involving some procedural or other irregularity in the lower court it will be material for the appeal court, when considering whether to hold a re-hearing, to have regard to the fact that an appeal will be allowed where the decision of the lower court is rendered ‘unjust because of serious procedural or other irregularity’…

• a re-hearing may happen but depending on the circumstances of the case

Question 40

fresh evidence in appeals

Answer 40

grounds set out inLadd v Marshall:
(1) the evidence could not have been obtained with reasonable diligence for use at the trial;
(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;
(3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible