Appeals Flashcards
What are the grounds for appeal?
Appeal when a decision is wrong or unjust due to a serious procedural or other irregularity in proceedings
This includes errors of law, errors of fact, or errors in the exercise of the court’s discretion.
What is the usual proceeding for an appeal?
A review of the lower court’s decision based on evidence and representations rather than re-hearing
The appeal court typically does not reassess evidence.
What are the types of wrong decisions in the lower court?
- An error of law
- An error of fact
- An error in the exercise of the court’s discretion
The appeal court is reluctant to declare a decision wrong if it was based on evidence assessments.
What constitutes an unjust decision in the lower court?
Irregularity must be serious - onerous to prove
Examples include lack of opportunity to make submissions or a judge’s prior involvement in proceedings.
What are the two ways to seek permission to appeal?
- Apply for permission from the lower court orally at the time of the decision and/or
- Make a written application to the appeal court using Form N161
What is the time frame for making an application for permission to appeal from the County Court or High Court?
21 days
What is the time frame for making an application for permission to appeal from the Court of Appeal?
28 days
How does the Court of Appeal handle permission applications?
This is where the CoA is the appeal court
Applications are determined on the papers alone unless an oral hearing is deemed necessary
Oral hearings will be listed within 14 days if needed.
What happens if a paper application for appeal is refused in the County Court or High Court?
The appellant may request a reconsideration at an oral hearing
This provides an additional opportunity to argue for permission.
What is the general rule regarding the timing of an appeal?
Must be made within 21 days of the lower court’s decision using Form N161
Judgments and orders take effect from the day they are given unless specified otherwise.
What is the test for granting permission for first appeals?
- The appeal must have a real prospect of success or
- There must be some other compelling reason for the appeal to be heard
What is the test for granting permission for second appeals?
- The appeal must have a real prospect of success and raise an important point of principle or practice
- There must be some other compelling reason for the Court of Appeal to hear it
Permission can be limited to certain issues or conditions.
What happens after permission is granted for an appeal?
The appellant’s notice doubles as the document initiating the appeal
It contains grounds of appeal, evidence, and supporting documentation.
What is the effect of an appeal on the execution of a lower court’s order?
An appeal does not operate as a stay of execution on the order of the lower court.
What must a client be aware of regarding an existing judgment during an appeal?
The client needs to be aware that the offending judgment is still effective and may still be enforced.
What could happen if an order is enforced and subsequently reversed?
It could lead to unfairness, therefore HC and CoA do have the power to order a stay pending the outcome of the appeal process
Appeal from County Court circuit judge goes to …
County Court district judge
Appeal from County Court DJ goes to …
High court
Appeal from High Court Master goes to…
High Court Judge
Appeal from High Court Judge goes to …
CoA
On Second appeal, the CoA hears appeals from …
- County Court Circuit Judge
- High Court Judge
Appeals from the CoA are heard by…
Supreme Court
Orders tha can be made by the appeal court x6
- Replace judgment with its own judgment
- Power to affirm, set aside or vary any order to 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 payment of interest
- Make a costs order
