Appeals

Question 1

What are the key concepts when considering an appeal?

Answer 1

Grounds of appeal: whether grounds exist and the likelihood of success

Permission to appeal: nearly always needed

Destination (or route) of appeal

Question 2

When will the appeal court allow an appeal?

Answer 2

Where the decision of the lower court was either:
- Wrong
- Unjust because of a serious procedural impropriety or other irregularity in the proceedings in the lower court

Question 3

How do courts assess grounds of appeal?

Answer 3

Normal practice takes the form of a review of the lower court’s decision based on the evidence and representations the lower court heard, rather than a re-hearing.

Means when assessing grounds, the court will usually not have access to any new evidence or live witnesses.

Question 4

For appeals, how can a decision be wrong?

Answer 4

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

Court will be reluctant to declare lower court wrong if primarily based on an assessment of evidence (and appeal court will not have access to the evidence in the same form as the lower court.

Question 4

For appeals, how can a decision be unjust?

Answer 4

Irregularity must be ‘serious’ and lead to decision being unjust - onerous to prove.

Succeeding does not depend on decision being wrong, so may apply even if the same decision would have been reached without the irregularity.

Question 5

What does a party have to do before they can appeal?

Answer 5

Need to obtain permission to appeal.

Question 6

How can a party apply for permission to appeal?

Answer 6

Two ways:

1. Apply for permission from the lower court at the time when the decision is made
   - Done orally
   - Saves time, saves costs, does not prevent later application to appeal court
2. Make the application to the appeal court later
   - Done in writing using Form N161, usually no hearing
   - More time to prepare application. Can pursue even if applied unsuccessfully to lower court

Question 7

How is the application for permission for appeal dealt with (Court of Appeal)?

Answer 7

Default position: applications for permission determined on papers alone UNLESS judge considers the matter should be dealt with orally

Judges have a duty to direct that a hearing takes place if they are of the opinion that they cannot ‘fairly determine’ the application on the papers. Oral hearings are listed within 14 days.

Question 8

How is the application for permission for appeal dealt with (County Court or High Court)?

Answer 8

Paper application.

If appeal court refuses the paper application, appellant may normally request (within 7 days of service of notice for refusing permission) that the decision be considered at an oral hearing.

If refused at that oral hearing, no appeal against that decision is possible.

Question 9

What is the time limit for obtaining permission/appealing?

Answer 9

General rule: an appeal (including application for permission) must be made within 21 days of the lower court’s decision using Form N161.

Question 10

What is the test for granting permission for a first appeal?

Answer 10

Only be granted where court considers:

• that the appeal would have a real prospect of success; or
• that there is some other compelling reason why the appeal should be heard.

Question 11

What is the test for granting permission for a second appeal?

Answer 11

Court of Appeals will not give permission for a second appeal unless it 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 for the Court of Appeal to hear it

An order giving permission to appeal may limit the issues to be heard and made subject to conditions.

Question 12

Does an appeal act as a stay of execution?

Answer 12

General rule is that it does not act as a stay of execution of the lower court’s order.

If this leads to unfairness (e.g. disproportionate outcome if order is enforced and the reversed), High Court and Court of Appeal do have power to order a stay pending outcome of any appeal process.

A stay pending appeal only justified in certain circumstances, and an application will need to be made.

Question 13

Where is the destination of appeal from a County Court District Judge?

Answer 13

County Court Circuit Judge

Question 14

Where is the destination of appeal from a County Court Circuit Judge?

Answer 14

High Court Judge

Question 15

Where is the destination of appeal from a County Court District Judge dealing with non-insolvency proceedings brought pursuant to the Companies Act?

Answer 15

High Court

Question 16

Where is the destination of appeal from a High Court Master?

Answer 16

High Court Judge

Question 17

Where is the destination of appeal from a High Court Judge?

Answer 17

Court of Appeal

Question 18

What orders can the appeal court make?

Answer 18

1. It can replace the the lower court’s judgment with its own

OR has the power to:

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

Can also dismiss the appeal.

Question 20

Where can an application for appeal be made?

Answer 20

Can be made at the lower court or to the appeal court or to both of these courts in turn.

The appellant has a choice and an unsuccessful application to the lower court does not preclude a further application for permission to the appeal court.

Question 21

What happens is an application for appeal is refused by the lower court?

Answer 21

Can still make an application to the appeal court.