Appeals Flashcards
What is an appeal?
An appeal is intended to review the lower court’s decision based on the evidence and representations that the lower court heard, rather than being a full rehearing.
Parties are normally not allowed to adduce new evidence and the court will be reluctant to allow an appeal where the decision was based primarily on the assessment of evidence.
What are the 3 steps of an appeal?
- Permission to appeal
- Grounds of appeal
- Destination of appeal
How can the appellant apply for permission to appeal in the lower court?
Orally before a judge. If refused, can apply later in writing to the appeal court.
How can the appellant apply for permission to appeal in the appeal court?
In writing (Form N161), without a hearing and the time limit to file the appellant’s notice with the appeal court is within 21 days of the decision of the lower court.
How is the application for permission to appeal considered by the CoA?
On the papers alone unless the judge considers it should be oral, i.e cannot be fairly determined on papers. Oral hearing listed within 14 days unless there are exceptional circumstances.
How is the application for permission to appeal considered by the CC or HC?
Paper application. If this fails, request an oral hearing within 7 days of notice refusing permission. No further appeal if refused at oral hearing.
What is the test for granting permission to appeal?
Permission will only be granted where there is a real prospect of success or some other compelling reason.
On second appeal, must be:
1. Real prospect of success
2. Raise important point of principle or practice or some other compelling reason.
What are the grounds for appeal?
- Decision of lower court was wrong (in law, fact or exercise of discretion);
- Decision of lower court was unjust because of serious procedural or other irregularity:
* no chance to make submissions
* submissions / skeleton argument too heavily incorporated into judgment
* lower court judge involved in previous proceedings
* manner of handling evidence.
Will be on Form N161 and made within 21 days of lower court decision.
What is the effect of a successful appeal?
Offending judgment remains effective and enforceable pending appeal BUT high court or COA may stay order pending outcome of appeal.
Court may:
* Affirm, set aside, vary order or judgment
* Dismiss appeal
* Refer claim / issue back to the lower court for determination
* Order new trial or hearing
* Make order for payment of costs or interest
What will be the destination of the appeal?
County Court District Judge => County Court Circuit Judge
County Court District Judge dealing w/ non-insolvency CA 2006 proceedings => High Court
County Court Circuit Judge => High Court Judge
High Court Master => High Court Judge
High Court Judge => COA
