Appeals Flashcards
Key concepts for appeals
- Grounds of appeal
- Permission to appeal
- Destination of appeal
Grounds of appeal
Appeal court will allow an appeal where decision of the lower court was either:
- wrong
- unjust because of serious procedural or other irregularity in the proceedings
Appellant needs to satisfy appeal court that one of these grounds is met
Form of appeals
Usually takes the form of a review of the lower court’s decision based on the evidence and representation in the lower court heard rather than a re-hearing of the matter in question.
Means court will usually not have access to any new evidence and will not have the benefit of being able to hear and examine the evidence live as the lower court has done.
Wrong decisions in the lower court
- error of law
- error of fact
- error in the exercise of the court’s discretion
Because it is a review on paper the appeal court will be reluctant to declare a decision wrong if primarily based on evidence which the appeal court is unable to conduct.
Unjust decision
Onerous ground to prove.
Irregularity must be serious and it mist have caused the lower court’s decision to be unjust.
Also succeeding on this ground does not depend on the decision of the court being wrong so it may apply even if the same decision would have been reached.
Permission to appeal
Can either:
- Apply for permission from the lower court at the time when the decision to be appealed is made:
+ done orally
+ saves time and can save costs
+ does not prevent a later application - Make the application to the appeal court later
+ done in writing and usually no hearing
+ more time to prepare the application - can pursue even if applied unsuccessfully to the lower court
Application for permission
County or High Court
- If paper application is refused, appellant may normally request (within 7 days) decision be reconsidered by hearing
- if refused again no appeal is possible
Court of Appeal
- determined on papers alone UNLESS judge considers applicaiton should be made orally
- any oral hearing will be listed within 14 days
Time limits for obtaining permission/appealing
An appeal must be made within 21 days of the date of the lower court’s decision
Court may extend with good reason .
A delay in drawing up a judgment will not delay the time running for the purpose of making an appeal
Test for appeals - first court
1) appeal would have a real prospect of success; or
2) some other compelling reason why the appeal should be heard
Test for second appeals
Some second appeals are heard by Court of Appeal:
Court of appeal will not give permission for a second appeal to go ahead 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
After permission to appeal is granted
Appellent’s notice will double as the document which initiates the appeal
Appellant also gives the details of the grounds of their appeal and other information, evidence and supporting documentation.
Appeal court uses the contents of the appellant’s notice to progress the appeal to its final determination.
Stay pending appeal
Not generally ordered but in some circumstances it is appropriate and application should be made
Routes of appeal
County court district judge
—> county court circuit judge
cc circuit –> high court judge
High court master –> high court judge
Hight court judge —> Court of Appel
What orders can an appeal court make?
Appeal court has all the powers of the lower court so it could replace the lower court’s judgment with its own.
Has power to:
- affirm, set aside or vary any order or judgment made
- refer any claim or issue for determination by the lower court
- order new trial or hearing
- make orders for the payment of interest
- make a costs order
- dismiss the appeal
