Appeals Flashcards
What is the meaning of
1st appeal
2nd appeal
Appellant
Respondent
1st = appeal against the original decision at first instance
2nd = appeal against the decision of the appeal court which heard the first appeal
Appellant = person bringing or seeking to bring an appeal
Respondent = Person other than appellant who is a party to proceedings and affected by the appeal and a person who is permitted to be a party to the appeal
Who will hear + in what court, a 1st appeal from decision of a …
District judge in CC = ?
Circuit judge in CC = ?
Master/District Judge in the HC = ?
High Court Judge in the HC = ?
District judge in CC = Circuit Judge in the County Court
Circuit judge in CC = HC Judge
Master/District Judge in the HC = HC Judge in HC
High Court Judge in the HC = Court of Appeal
Which court hears most 2nd appeals?
What if it an appeal from there?
Court of appeal
Supreme Court
Is permission to appeal required?
Exceptions to the general rule?
Most cases = yes
Exception:
Committal orders
Refusal to grant habeas corpus
To Which court may an application for permission to appeal be made?
To the lower court at the hearing at which the decision to be appealed was made or
The appeal court in an appeal notice
What can a party do in the lower court refuses the application for permission to appeal?
What should an order refusing permission to appeal specify?
Can make a further application to the appeal court
Should specific:
Which court a further applicant for permission should be made to and
The level of judge who should hear the application
In an application for permission to appeal is made to an appeal court - other than the CofA - will there be a hearing?
No application will be determined on a paper unless court otherwise directs
Where an appeal court, without a hearing taking place, refuses permission to appeal, what can the person seeking permission do?
Filling time limits ?
What if the decision was made by a HC judge, designated civil judge or specialist circuit judge?
May request the decision be reconsidered at an oral hearing
Party needs to file request within 7 days after service of the notice that permission has been refused
If they reuse permission to appeal on papers and consider that the application is totally without merit then judge can order that the person seeking permission may not request decision to be reconsidered at an oral hearing
Where an application for permission to appeal is made to the court of appeal, will there be an oral hearing?
No, unless judge thinks application cannot be fairly determined on paper without oral hearing
If there is a hearing must be listed within 14 days of the direction for one, under same judge unless court orders otherwise
What is the test that will be applied when determine permission to appeal on 1st appeals?
What can an order giving permission also do?
Only given where—
Court considers that the appeal would have a REAL PROSPECT of SUCCESS; or
There is some other COMPELLING REASON for the appeal to be heard
Set limit of the issue to be heard at appeal and make the permission subject to conditions
What will the court consider when application is for permission to appeal on case management decisions?
- Sufficient significance to justify the costs of an appeal
- Procedural consequences of appeal outweigh significance of the case management decision
- More convenient to determine issue at or after trial
Can parties agree to vary the time limit for filing an appeal notice?
No, need to make application to appeal court
Within what document can the appellant seek permission to appeal from the appeal court?
When should this be filed?
Served on? When?
APPELLANT’S NOTICE
Within period directed by the lower court, or within 21 DAYS of the DECISION of the lower court which the appeal last wishes to appeal
Appellant’s notice must be served o each respondent ASAP, any event no later than 7 days after it is filed
When must a respondent file a respondent’s notice?
File?
Respondent who is seeking permission to appeal from 1st appeal or
Wishes to ask appeal court to uphold decision which the appellant wants to appeal
Respondents notice must be filed within— period specified by lower court or 14 days after—
A. Date lower court grants permission to appeal - from service of appellant’s notice
B. Date appeal court has granted permission to appeal - from service of the order granting permission
C. Appeal court decide to hear permission applicant together with appeal - RARE
What if the appellant/respondent cannot comply with the time limits?
(Wider powers of court)
Applications can be made to appeal court for an extension of time under CPR 3.1(2)
As long as applicant made before og time expires
If time has already expired, would have to apply for retrospective extension and then relief from sanction under CPR 3.9, because upon time expiring an implied sanction ( i.e no appeal can be brought) takes effect
So court will apply DENTON test
Every appeal will be limited to a ____ of the decision of the lower court unless—
- PD says otherwise; or
- Court considering that in the circumstances it would be ___________ to hold a _______
What evidence can be used by the appeal court?
What if a party admits a matter which they want to rely on from their appeal notice?
REVIEW
IN THE INTERESTS OF JUSTICE
RE-HEARING
Evidence = no oral evidence and no new evidence - unless court orders otherwise
Then cannot rely on it unless court gives permission
What is the difference between a review and a rehearing?
Review:
See if evidence supports decision,
if judge got law wrong;
Exercise of discretion was within reasonable range of decision making
Will not see witness, so should give due wight to deciding judge’s impression of witnesses; but can drawn own inference
Rehearing:
Considers everything afresh and court may hear fresh evidence
If the court does order otherwise, in some circumstances fresh evidence may be allowed BUT special grounds need to be shown
What are the special grounds under, Ladd v Marshall?
- The evidence could not have ben found with reasonable diligence for use at trial
- Evidence, must be such that it would have had an important influence on the case - but need not be decisive
- Evidence must be apparently credible
When will an appeal court allow an appeal?
Where the decision of the lower court was—
A. WRONG; or
B. UNJUST because of SERIOUS PROCEDURAL or other IRREGULARITY in the proceedings in the lower court
When will the decision of a lower court be ‘wrong’?
If judge got
the facts wrong,
The law wrong; or
Exercised a discretion wrongly
Does an appeal operate as a stay of any order or decisions of the lower court?
NO
Unless
Lower court orders otherwise or
Appeal on Immigration and asylum
Can a party apply for a transcript of the judgement of the power court or particular part of proceedings, to be obtained by public expense?
I.e party doesn’t pay for it
Yes, can be granted by lower court or appeal court upon applicant
If…
Applicant is is such poor financial circumstances that cost would be an excessive burden; and
Is necessary in the interests of justice for transcript to be obtained
Where must a party apply for permission to appeal, in second appeals?
Permission is required from the court of appeal
Permission will not be given unless—
A. The appeal would-
Have a real prospect of success; and
Raise an important point of principle or practice; or
B. There is some other compelling reason for the court of appeal to hear the second appeal
In relation to the appeal what powers does the appeal court have?
Appeal court can—
A. ____, ___ or __ any order/judgment made/give by lower court
B. Refer any claim or issue for _____ by the lower court
C. Order a ___ trial/hearing
D. Make orders for the payment of _____
E. Make a ____ order
Appeal court can exercise its powers in relation to ____ or ___ of an order
All the powers the lower court had
A. Affirm/set aside / vary B. Determination C. New D. Interest E. Costs
Whole or part
What must an appeal court do if they
- reuse applicant for permission to appeal
- strike out an appellant’s notice; or
- dismiss an appeal
And it considers that the application ect is totally without merit?
Must record the fact they consider the applicant to be totally without merit; and
At the same time consider whether it is appropriate to make a civil restraint order
