Appeals Flashcards
Norman wishes to appeal against an interim order made in a fast track breach of contract claim by District Judge Smith in the County Court sitting at Gladbury yesterday. No submissions were made in relation to appeal at the hearing.
Which one of the following is correct in relation to the process to appeal this decision?
The appeal may be made with permission. The appeal will be heard by a Circuit Judge sitting in the County Court. The appeal is likely to be limited to a review of the decision of District Judge Smith.
The appeal may be made as of right. The appeal is likely to be heard by a High Court Judge. The appeal is likely to be limited to a review of the decision of District Judge Smith.
The appeal may be made without permission. The appeal is likely to be heard by a Circuit Judge sitting in the County Court. The appeal is likely to take the form of a rehearing of the matter.
The appeal may be made with permission. The appeal will be heard by the Court of Appeal. The appeal is likely to be limited to a review of the decision of District Judge Smith.
The appeal may be made with permission. The appeal will be heard by a Circuit Judge sitting in the County Court. The appeal is likely to be limited to a review of the decision of District Judge Smith.
Permission to appeal is required pursuant to CPR Rule 52.3(1) this is not a case to which one of the 3 exceptions to the requirements for permission apply. The destination for appeal would be a Circuit Judge in the County Court – see Table 1 beneath paragraph 3.5 in Practice Direction 52A, which shows that a decision of a District Judge should be appealed to a County Court Circuit Judge in matters other than non-insolvency proceedings brought pursuant to the Companies Acts. There is nothing on the fact pattern to suggest that the general rule – that an appeal will be by way of review, rather than rehearing- will be displaced here – see CPR Rule 52.21(1) and the commentary at 52.21.1 of the White Book. Note that appeal would be in writing in the appeal notice – see CPR 52.3(3)
Harvey was the Defendant to a breach of contract claim which was heard in the County Court. The Judge found that Harvey sold the Claimant a broken car and he was ordered to pay damages of £5000 to the Claimant. Harvey now has a new statement, which he considers to be in support of his version of events, from his friend Hamish. Harvey is determined to appeal and he seeks your advice in relation to the ability to rely on Hamish’s statement at the appeal hearing.
Hamish has just been released from prison having served a sentence for fraud by false representation. The statement has many inconsistencies in it, and only addresses Harvey’s apparent surprise that the car he had sold had broken down 5 minutes after the Claimant paid for it and drove off in it. Harvey knew, prior to the trial, that Hamish could have given this evidence and had regularly visited him in prison where they had discussed the claim but he only thought it was worthwhile to obtain the statement once he found out that he had lost at trial.
Which ONE of the following is the best advice concerning the appeal court’s discretion to hear new evidence?
New evidence cannot be used on an appeal unless a practice direction provides otherwise. Therefore, it would be a waste of time and expense applying to the court for permission to rely on the statement from Hamish.
The appeal court has general discretion to admit new evidence if to do so would be in the interests of justice in the circumstances of an individual appeal. There is a strong chance that the appeal court would admit the new evidence on the facts of this case in light of the factors the court normally considers.
The appeal court will consider whether the evidence could have been obtained with reasonable diligence for use at trial, whether the evidence is apparently credible, and whether it was probable that it would have an important influence on the outcome of the case. Whilst the Court has discretion the appeal court is unlikely to exercise it in Harvey’s favour.
The appeal court will consider whether the evidence could have been obtained with reasonable diligence for use at trial, whether the evidence is apparently credible, and whether it was probable that it would have an important influence on the outcome of the case. Whilst the Court has discretion the appeal court is likely to exercise its discretion in Harvey’s favour.
The appeal court will consider whether the evidence could have been obtained with reasonable diligence for use at trial, whether the evidence is apparently credible, and whether it was probable that it would have an important influence on the outcome of the case. Whilst the Court has discretion the appeal court is unlikely to exercise it in Harvey’s favour.
The appeal court would likely conclude that the criteria from Ladd v Marshall [1954] 1 W.L.R. 1489 have not been satisfied here: the evidence could have been obtained with reasonable diligence for use at trial, the evidence, if given, would, in all probability, not have had an important influence on the result of the case and the evidence is not apparently credible in the circumstances. Please see further the commentary at paragraph 51.21.3
Loretta has brought a £70,000 claim in the High Court against Gladbury Council for personal injuries sustained in one of their parks. At the trial, which took place on Friday last week, judgment was given in favour of Loretta. Permission to appeal was refused by the High Court Judge at the end of the trial. Gladbury Council have a conference with you today (please assume this takes place on the Monday immediately following the trial). At the end of the conference Gladbury Council provide instructions to you that they still wish to appeal the decision on liability made at the conclusion of the trial.
Which of the following is correct in relation to the obtaining of permission to appeal in these circumstances?
Permission to appeal may only be given where the court considers that 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 why the appeal should be heard.
The application will be determined without a hearing. Permission to appeal may only be given where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
If permission is refused without a hearing , the person seeking permission may request the decision to be reconsidered at an oral hearing by filing a request within 7 days of refusal.
Permission to appeal can only be sought once, from the lower court and within three weeks after the decision to be appealed was made. The application will be determined without a hearing.
The application will be determined without a hearing. Permission to appeal may only be given where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
This is the test for permission where the appeal is a first appeal which is the case here. The appeal would lie to the Court of Appeal so in terms of procedure the applicable rule is CPR 52.5 The permission application would be without a hearing unless the court directs that an oral hearing is required. Note that there is no ability to request reconsideration of a decision at an oral hearing. You may like to compare this with the position where the appeal court is the County Court or High Court – see CPR 52.4
Rachel and Sally were involved in a road traffic collision. Both thought the other was to blame. After a short trial, District Judge Davis found that Rachel was at fault and gave judgment for Sally in the amount of £3,400, to be paid within 21 days.
Rachel has not paid anything. Rachel had been ordered to attend court and provide information about her means following an application by Sally. As a result, Sally knows that Rachel used to be an accountant but she recently has changed career. She is now a yoga teacher. She is employed at Yoga Zen Studios and earns approximately £300 per month, which is just about enough to cover her living expenses. Rachel owns her own house which has a mortgage for 95% of its value (leaving equity of £4,000), and has approximately £5,000 in a sole bank account saved from when she was earning more as an accountant.
Please advise Sally on the MOST APPROPRIATE method of enforcement from the following options:
Apply for an attachment to earnings order over the money held by the bank.
Apply for a third party debt order over Rachel’s bank account.
Apply for an attachment to earnings order over Rachel’s yoga income
Apply for a charging order over Rachel’s house.
Apply for a third party debt order over Rachel’s bank account.
This is the best advice as it is the most suitable order on these facts. A bank account in credit is a debt due by the bank to its customer. There is enough in the account to meet the debt. Obtaining a third party debt order in respect of that sum would realise the money owed securely and quickly (as it is paid directly to the judgment creditor) and would be fairly straightforward given that the third party is reliable. See CPR Rules 72.1 – 72.3 and the WB commentary at paragraph 72.0.1 .
Three weeks ago, after trial in the County Court, Ellie obtained a judgment for the sum of £30,000 against Jess. Jess was ordered to pay the judgment sum within two weeks and has failed to do so. Ellie now wishes to enforce the judgment against Jess and seeks your advice as to the BEST method of enforcement to use. Ellie needs to recover money quickly because she has recently been made redundant from her own job when her employer went into liquidation.
In order to assist you in giving your advice, Ellie tells you that:
- Jess (in her sole name) owns a house but both Gladbank and Happyfax Bank have mortgages secured by way of legal charge over the property leaving equity of no more than £25,000;
- Jess is in employment as a building labourer, earning £100 a week working two hours a day covering lunch breaks;
- Jess has a joint bank account (at Gladbank) with her husband, which is currently £50,000 in credit; and
- Jess herself owns a very valuable painting and Rolex watch, which have a market value of roughly £35,000.
In the light of this information, which of the following is the BEST method of enforcement to pursue in the first instance from the following options?
Ellie should initially seek to obtain a third party debt order with respect to the £50,000 held in the joint account with Gladbank.
Ellie should initially seek to obtain an attachment of earnings order against Jess.
Ellie should initially seek to transfer proceedings from the County Court to the High Court and then seek a writ of control.
Ellie should initially seek to obtain a charging order over the property which Jess owns.
Ellie should initially seek to transfer proceedings from the County Court to the High Court and then seek a writ of control.
This is the best advice to give in the circumstances. Jess has valuable assets which will satisfy the full judgment sum which is outstanding. This method should quickly realise the judgment sum (albeit that it is, to some extent, dependent on third parties buying the goods at auction for the appropriate price). Out of the 4 options given, transfer to the High Court followed by an attempt to secure a writ of control is comfortably the best course of action to adopt: see further CPR Rule 70.3 and the commentary at paragraph 83.0.3.
Question 1
The claimant has issued proceedings against the defendant. Negotiations break down and
the matter is proceeding towards trial on the multi- track.
Which of the following statements is correct?
A A witness summons should be issued for all witnesses to ensure their attendance
at trial.
B The parties must complete a pre- trial checklist.
C The court will list the case for a pre- trial review in every case.
D Each party must prepare their own trial bundle.
E A case summary is not required as it only applies to the fast track.
Answer
Option B is correct as the parties must complete a pre- trial checklist to assist the court
in establishing that all directions have been complied with and that the claim is ready
to proceed to trial. Option A is wrong because a witness summons will not be required
in ‘all’ cases. It will only usually be applied for where there is some doubt about a
witness of fact attending voluntarily, although a witness may require a summons to show
their employer. Option C is wrong because the court will not always list the case for a
pre- trial review.
Option D is wrong as the claimant (or their lawyer if they are legally represented) is
responsible for preparing the trial bundle unless the court orders the defendant to
do so but, in any event, it will be a joint bundle. A case summary may be ordered for
the multi- track but not generally for cases allocated to the fast track – hence, option E
is wrong.
Question 2
A claim for breach of contract proceeds to trial and a timetable is set by the court.
Which of the following statements best describes what will happen at trial?
A The order of events is likely to be preliminary issues (if any), examination of the
claimant’s witnesses, examination of the defendant’s witnesses, closing speeches by
both advocates.
B A witness’s statement stands as their evidence so examination- in- chief will usually be
limited to requiring the witness to take the oath, identify their personal details and
confirm that the contents of their witness statement are true.
C A witness may always add to or expand their witness statement to clarify a point or to
clear up any ambiguities.
D Witnesses may be asked open, leading or closed questions by the advocates for both
parties.
E The judgment will address all disputed issues of liability and (where relevant) quantum,
but the issue of costs is always reserved for a subsequent hearing.
Answer
Option B is correct. The witness statement stands as that witness’s evidence- in- chief.
Option A is wrong because, ordinarily, the claimant will be given permission to make an
opening speech, once preliminary issues have been addressed and before witnesses are
examined. Option C is also wrong. Although a witness may amplify their statement to clarify
a point or give evidence in relation to new matters which have arisen since they signed
their statement, they will not ‘always’ be able to do so, as permission of the judge must be
obtained first.
Option D is wrong because, when examining their own witness, an advocate can usually only
ask open and non- leading questions. Closed and leading questions can generally only be
used during cross- examination.
Option E is not the best answer. If the case is proceeding on the fast track, the judge will
summarily assess costs when giving judgment. If the case is proceeding on the multi- track,
the judge will, when handing down judgment, usually order who shall pay whose costs, but
will leave the quantification of those costs to a subsequent detailed assessment (if the parties
cannot agree the matter).
Question 3
A claim between the claimant and the defendant is heard by a district judge in the County
Court. At the end of the trial, the judge gives judgment. The claimant is unhappy with the
outcome and wishes to appeal.
Which of the following statements best describes the approach that would apply to the
claimant’s appeal?
A The claimant’s appeal will be heard by a circuit judge.
B The claimant has 14 days in which to appeal the decision.
C The claimant must apply for permission to appeal to the trial judge.
D Permission will be granted but only if the court considers that the appeal would have a
real prospect of success.
E If dissatisfied with the decision of the appellate court, the claimant will usually be
allowed to appeal further to a court higher up in the hierarchy.
Answer
Option A is correct. Because the matter was decided by a district judge in the County Court,
the appeal will be heard by the next level of judge – a circuit judge. Option B is wrong
because the claimant has 21 days to appeal against a County Court decision (as here).
Option C is wrong because the claimant may also apply for permission to appeal to the
appeal court itself. Option D is wrong as there are two grounds on which permission to
appeal may be granted, the other being that there is some other compelling reason why it
should be heard. Option E is also wrong as in most cases, the decision of the appellate court
will be the final decision as the grounds on which a second appeal may be permitted are
very onerous
Instructing solicitors act for Mark Staley. Good Living Limited (‘Good Living’), a company incorporated in Great Britain, is a market leader in the sale of dairy-free “milk” drinks. Good Living brought proceedings against Mark, alleging that he, having purchased a mass consignment of the drinks from Good Living, has failed to pay the sums apparently due and owing to Good Living.
Mark made an application for security for costs but that application was refused by Browne J in the High Court on the basis that there was no reason to believe that Good Living would be unable to pay Mark’s costs if ordered to do so.
Mark has appealed the decision of Browne J and the matter has now come before the Court of Appeal. At the appeal hearing, Mark wishes to adduce evidence which was not before Browne J, demonstrating that Good Living is, in fact, impecunious. Instructing Solicitors admit that this evidence was freely available prior to the hearing before Browne J and that it is of a highly contentious nature.
Which ONE of the following is the best advice concerning the appeal court’s discretion to hear new evidence?
The appeal court can receive fresh evidence if it would be in the interests of justice to do so. In considering how to exercise its discretion, the appeal court will disregard the fact that the new evidence would have had an important influence on the case.
The appeal court has general discretion to admit new evidence if to do so would be in the interests of justice in the circumstances of an individual appeal. There is a strong chance that the appeal court would admit the new evidence on the facts of this case.
New evidence cannot be used on an appeal unless a practice direction provides otherwise. It would therefore be a waste of time and expense applying to the court for permission to rely on the new evidence.
The appeal court will consider whether the evidence could have been obtained with reasonable diligence for use at the original hearing, whether the evidence itself is apparently credible, and whether it was probable that it would have an important influence on the outcome of the case. Therefore, whilst the Court has discretion to rely on fresh evidence in the interests of justice, in the light of the circumstances of this case, the appeal court is unlikely to exercise its discretion in Mark’s favour.
The appeal court will consider whether the evidence could have been obtained with reasonable diligence for use at the original hearing, whether the evidence itself is apparently credible, and whether it was probable that it would have an important influence on the outcome of the case. Therefore, whilst the Court has discretion to rely on fresh evidence in the interests of justice, in the light of the circumstances of this case, the appeal court is unlikely to exercise its discretion in Mark’s favour.
Correct: this is the best advice. The advice on the law is correct, as is the application of that law to the facts of the case. See the criteria from Ladd v Marshall [1954] 1 W.L.R. 1489 and the commentary at paragraph 52.21.3 of the White Book.
CPR 52.21(2)(b) provides that the court will not receive evidence which was not before the lower court unless it orders otherwise. In addition, the new evidence’s likely influence on the result of the case is one of the factors to which the court will have regard when deciding whether to admit that new evidence.
