Appeals

Question 1

What is meant by destination (or route) of an appeal?

Answer 1

Which court/judge will hear the appeal

NB distinguish ‘appeal court’ from ‘Court of Appeal’

Question 2

What must the lower court’s decision be for the appeal court to allow an appeal?

Answer 2

1. Wrong; or
2. Unjust because of a serious proedural or other irregularity in proceedings

Question 3

Will appeals re-hear or merely review the lower court’s decision?

Answer 3

Normally only review

Question 4

What evidence will the appeal court usually have access to?

Answer 4

• The evidence and representations heard by the lower court
• No access to any new evidence and cannot hear/examine evidence ‘live’ as lower court has done

COURT HAS DISCRETION HERE

Question 5

How can a lower court’s decision be ‘wrong’?

Answer 5

Due to either:

• An error of law
• An error of fact
• An error in the exercise of the court’s discretion

Question 6

When the decision was primarily based on the assessment of evidence (which the appeal court is unable to conduct), what will the approach of the appeal court be?

Answer 6

Will be reluctant to declare lower court’s decision wrong

Does not have access to same evidence lower court did

E.g. appeal court cannot consider the credibility of a witness whereas the lower court did = appeal court’s interference may be inappropriate

Question 7

How can a lower court’s decision be ‘unjust’?

Answer 7

Must have been a serious irregularity causing the lower court’s decision to be unjust

E.g. …
* Party not given chance to make submissions
* Lower court judge involved in previous proceedings
* The manner in which the judge handled the evidence

Question 8

Can a decision be ‘unjust’ even if the lower court’s decision was not wrong?

Answer 8

Yes

Question 9

When will permission to appeal be granted by the court?

(Not location)

Answer 9

Where the court considers:

• Appeal has a real prospect of success
• There is another compelling reason why appeal should be heard

Question 10

When can an appellant apply for permission to appeal? And in what form is this done?

Answer 10

1. At the lower court at the time the decision (to be appealed) is made - done orally
2. To the appeal court - done in writing using appellant’s notice usually with no hearing

Question 11

How long does the appellant have to make an application to the appeal court after lower court’s decision?

Answer 11

Within 21 days

Question 12

Does applying for permission from the lower court prevent an application to the appeal court?

Answer 12

No (even if unsuccessful at lower court)

Question 13

Why would an appellant choose one time to apply for permission to appeal over another?

Answer 13

• Lower court - saves time for court and parties, saves costs
• Appeal court - more time to prepare application and can apply anyway

Question 14

How is an application for permission dealt with where the appeal court is the County or High Court and it has refused paper application?

Answer 14

Appellant may request the decision be reconsidered at oral hearing (the decision of which cannot be appealed)

I.e. if permission is refused at the oral hearing, no appeal against that decision is possible

Question 15

How long does the appellant have to request decision is reconsidered at an oral hearing after their paper application is refused?

Where appeal court is County/High Court

Answer 15

7 days after service of the notice refusing permission

Question 16

How is an application for permission dealt with where the appeal court is the Court of Appeal?

Answer 16

Applications for permission will be determined on papers alone unless judge considers matter should be dealt with orally (at hearing)

Question 17

Why would a judge direct a hearing takes place for an appeal to the Court of Appeal?

(Rather than just determined on papers)

Answer 17

The judges have a duty to direct a hearing takes place if they are of the opinion that they ‘cannot fairly determine’ the application on the papers alone

Question 18

When will an oral hearing be listed for permission to appeal to the Court of Appeal?

Answer 18

Within 14 days

Question 19

When must an appeal/application for permission be made and what is the application called?

Answer 19

Within 21 days of the decision of the lower court - called the ‘Appellant’s notice’ (form N161)

Can apply for extension if it has a good reason for seeking longer period in which to appeal

Question 20

From when do judgements and orders take effect? What is the effect in formally drawing up a judgement after it is made?

I.e. when does the clock start running for time to appeal

Answer 20

From the date they are given/made (even if a delay in formally drawing up judgement!)

Question 21

What is the difference between a first appeal and a second appeal?

Answer 21

• First appeal = appeal against first court who has made the decision
• Second appeal = appeals of the decision made on the first appeal of the lower court’s decision (i.e. do not like the judgement that came from appeal, not that appeal was rejected)

Question 22

What is the test for permission on the first appeal?

Answer 22

Usual test: real prospect of success or other compelling reason

Question 23

What is the test for permission on the second appeal?

Answer 23

• 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 CoA to hear it

Question 24

What two functions does the appellant’s notice have?

Answer 24

Requests permission and initiates the appeal itself (where permission granted)

Question 25

What does the appellant’s notice contain and how is it used by the appeal court?

Answer 25

• Contains details of the grounds of their appeal, evidence and supporting documentation
• Used to progress the appeal to its final determination

Question 26

Can the offending (original) judgement still be enforced pending appeal?

I.e. is judgement still effective in spite of appeal?

Answer 26

Yes! An appeal does not operate as a stay of execution on the order of the lower court

Can lead to unfairness if order is enforced and reversed

Question 27

How can the High Court and CoA mitigate the fact that an appeal does not operate as a stay of execution?

Answer 27

Have the power to order a stay pending the outcome of any appeal process

Not generally ordered but will sometimes be justified

E.g. lower court’s order to demolish building - successful appeal pointless

Question 28

What does ‘route/destination of appeal’ refer to?

Answer 28

Which court/judge will be the appeal court for the lower court’s decision

Question 29

Where does appeal lie (route) according to the general rule?

Answer 29

To the next level of the judge in the hierarchy

Question 30

Where will a second appeal be?

Answer 30

Always the Court of Appeal (unless first appeal was to CoA - then it is to Supreme Court)

Question 31

What orders can the appeal court make?

Answer 31

1. Can replace the lower court’s judgement with its own judgement
2. Dismiss the appeal
3. Take a different approach…

Question 32

What different approach can an appeal court take if not replacing the judgement nor dismissing the appeal?

Answer 32

• Affirm, set aside or vary any order or judgement made
• Refer any claim or issue for determination to the lower court
• Order new trial/rehearing
• Make orders for the payment of interest
• Make a costs order