Appeals

Question 1

What is the meaning of

1st appeal

2nd appeal

Appellant

Respondent

Answer 1

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

Question 2

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 = ?

Answer 2

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

Question 3

Which court hears most 2nd appeals?

What if it an appeal from there?

Answer 3

Court of appeal

Supreme Court

Question 4

Is permission to appeal required?

Exceptions to the general rule?

Answer 4

Most cases = yes

Exception:
Committal orders
Refusal to grant habeas corpus

Question 5

To Which court may an application for permission to appeal be made?

Answer 5

To the lower court at the hearing at which the decision to be appealed was made or
The appeal court in an appeal notice

Question 6

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?

Answer 6

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

Question 7

In an application for permission to appeal is made to an appeal court - other than the CofA - will there be a hearing?

Answer 7

No application will be determined on a paper unless court otherwise directs

Question 8

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?

Answer 8

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

Question 9

Where an application for permission to appeal is made to the court of appeal, will there be an oral hearing?

Answer 9

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

Question 10

What is the test that will be applied when determine permission to appeal on 1st appeals?

What can an order giving permission also do?

Answer 10

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

Question 11

What will the court consider when application is for permission to appeal on case management decisions?

Answer 11

1. Sufficient significance to justify the costs of an appeal
2. Procedural consequences of appeal outweigh significance of the case management decision
3. More convenient to determine issue at or after trial

Question 12

Can parties agree to vary the time limit for filing an appeal notice?

Answer 12

No, need to make application to appeal court

Question 13

Within what document can the appellant seek permission to appeal from the appeal court?

When should this be filed?

Served on? When?

Answer 13

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

Question 14

When must a respondent file a respondent’s notice?

File?

Answer 14

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

Question 15

What if the appellant/respondent cannot comply with the time limits?

(Wider powers of court)

Answer 15

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

Question 16

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?

Answer 16

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

Question 17

What is the difference between a review and a rehearing?

Answer 17

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

Question 18

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?

Answer 18

1. The evidence could not have ben found with reasonable diligence for use at trial
2. Evidence, must be such that it would have had an important influence on the case - but need not be decisive
3. Evidence must be apparently credible

Question 21

When will an appeal court allow an appeal?

Answer 21

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

Question 22

When will the decision of a lower court be ‘wrong’?

Answer 22

If judge got

the facts wrong,
The law wrong; or
Exercised a discretion wrongly

Question 23

Does an appeal operate as a stay of any order or decisions of the lower court?

Answer 23

NO

Unless

Lower court orders otherwise or
Appeal on Immigration and asylum

Question 24

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

Answer 24

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

Question 25

Where must a party apply for permission to appeal, in second appeals?

Answer 25

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

Question 27

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

Answer 27

All the powers the lower court had

A. Affirm/set aside / vary 
B. Determination 
C. New 
D. Interest 
E. Costs 

Whole or part

Question 28

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?

Answer 28

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