Appeals

Question 1

How does a party go about appealing?

Answer 1

Apply to either court -
They can apply to either court (the lower court whose decision they are appealing, or the appeal court, which will hear the appeal). If applying to the appeal court, this is done via an appeal notice.

If refused: further application -
If the application is refused at the lower court, a further application can be made to the appeal court. If permission is then granted by the appeal court, the court will specify which court any further application is to be made to and which level of judge will hear the application.

Question 2

How are applications determined (other than in the Court of Appeal)

Answer 2

Generally on paper -
Generally, applications are determined on paper without an oral hearing, unless the court directs otherwise.

Oral reconsideration at appeal court -
Where an application is being made to an appeal court other than the COA, the appeal court will determine the application on paper without an oral hearing. If the application is refused at this stage, the applicant can request the appeal court to reconsider their refusal at an oral hearing.

Filed within 7 days -
A request for reconsideration at an oral hearing must be filed within 7 days of notice of the refusal.

Question 3

Can a party always request that the appeal court reconsider their refusal at an oral hearing?

Answer 3

No, where the appeal court considers the application to be totally without merit, they may order that the Applicant may not request oral reconsideration. This decision cannot be set aside.

Question 4

How are applications determined at the Court of Appeal?

Answer 4

Generally, on paper -
Generally, applications to appeal are determined on paper, without an oral hearing.

Cannot be fairly disposed of -
However, if the judge considering the application is of the opinion that the application cannot be fairly determined on paper, they may direct that the application be dealt with at an oral hearing.

Listed no later than 14 days later -
An oral hearing (if directed) must be listed no later than 14 days from the date the direction was given.

Identify issues/R’s written submissions -
If an oral hearing is directed, the court may identify issues that the applicant should focus their submissions on and may direct the respondent to file and serve written submissions and to attend the oral hearing.

Question 5

What is needed for permission to be granted for a first appeal?

Answer 5

Permission may be given only where the court considers there is:

• a real prospect of success
• some other compelling reason for the appeal to be heard

An order giving permission for the first appeal may limit the issues to be heard and may be made subject to conditions.

Question 6

If permission to appeal from the initial decision is granted, can the party then appeal again from the appeal itself?

Answer 6

Yes, to the Court of Appeal.

Question 7

Is permission required on an application to appeal to the Court of Appeal?

Answer 7

Yes, permission is required from the COA for any appeal to that court from a decision of the County Court, family court or High Court which was itself made on appeal

Question 8

When will the Court of Appeal give permission to hear a second appeal?

Answer 8

• When the appeal has a strong prospect of success AND raises an important issue of principle or practice
• there is some other compelling reason why they should hear it

Question 9

When must the Appellant’s application for permission be requested in the appellant’s notice?

Answer 9

When the appellant is seeking permission from the appeal court.

Question 10

When must the appellant file the appellant’s notice?

Answer 10

Within the time period directed by the lower court. If the lower court makes no such direction, it must be filed within 21 days of the date of the decision of the lower court which the appellant wishes to appeal.

Note that if the lower court does make a direction of a time frame, it can be less than or more than 21 days.

Question 11

Who needs to be served the appellant’s notice and within what timeframe must this be done?

Answer 11

Unless the court directs otherwise, an appellant’s notice must be served on each respondent as soon as practicable and, in any event, not later than 7 days after it was filed.

Note that the answer to this is NOT the court. The court is not served the appellants notice, it is filed with the court.

Question 12

When will a respondent file a respondent’s notice?

Answer 12

Any respondent may file a respondent’s notice, but there are times when a respondent MUST file one.

A respondent must file a respondent’s notice if

• they are seeking permission to appeal from the appeal court
• they are asking the appeal court to uphold the decision from the lower court for reasons different from or in addition to those given by the lower court.

Question 13

When must the respondent’s notice be filed?

Answer 13

Within any such period is directed by the lower court.

If the lower court does not give such a direction, it must be filed with 14 days of the ‘date’.

The ‘date’ is either:

• the date the respondent is served with the appellant’s notice (and permission was given or not required)
• the date the respondent is served with a notification that the appeal court has given permission.

Question 14

When must the respondent’s notice be served, and who must it be served upon?

Answer 14

Unless the appeal court orders otherwise, a respondent’s notice must be served on the appellant and any other respondent as soon as practicable and, in any event, no later than 7 days after it was filed.

Question 15

Can any part of an appeal be paid for at public expense?

Answer 15

Yes, on the application of a party, the court may direct that an official transcript of the judgment of the lower court, or of any part of the evidence, be obtained at public expense for the purposes of an appeal.

Question 16

What conditions must be satisfied in order for the court to direct that official transcripts are to be paid at public expense?

Answer 16

The court must be satisfied that:

• the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining the transcript would be an excessive burden; AND
• it is necessary in the interest of justice for the transcript to be obtained.

Question 17

1. Can the time limit for filing an appeal notice be varied?
2. How is this done?
3. When can it not be done?

Answer 17

1. Yes
2. By applying to the appeal court
3. the parties cannot agree to extend any date or time set by PD52 or an order of the appeal court or the lower court.

Question 18

Does an appeal stay the decision of the lower court?

Answer 18

Generally, no, the decision of the lower court is not stayed as a result of the appeal.

However, the decision of the lower court will be stayed if the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal, or the appeal court or lower court orders otherwise.

Question 19

What are the powers of the appeal court?

Answer 19

In relation to an appeal, the appeal court has all the powers of the lower court.

The appeal court may exercise its powers in relation to the whole or part of an order of the lower court

The appeal court has power to -

• affirm, set aside, or vary any judgment or order 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 the payment of interest
• make a costs order

Question 20

What options does the Court of Appeal have when it is hearing an appeal from a claim tried with a jury?

Answer 20

Instead of ordering a new trial, the COA may make an order for damages or vary an award of damages made by the jury.

Question 21

What must the appeal court do if it considers that the application, appellant’s notice or appeal is totally without merit?

Answer 21

Once the application is refused, the appellant’s notice struck out, or the appeal is dismissed, the court must record the fact that it considers it to be totally without merit.

The court must also at the same time consider whether it is appropriate to make a civil restraint order.

Question 22

What is the appeal court’s position regarding the raising of a new point at appeal?

Answer 22

An appeal court will not generally permit a new point to be raised on appeal if that point would necessitate new evidence or, had it been put before the lower court, it would have resulted in the trial being conducted differently with regard to evidence.

Question 23

What are the three conditions which must be satisfied for the court to allow a new point to be raised at an appeal?

Answer 23

• the other party has had adequate time to deal with the point
• the other party has not acted to his detriment on the faith of the earlier omission to raise it
• the other party can be adequately protected in costs.

Question 24

1. Can fresh evidence ever be used in an appeal?

2. When can fresh evidence be used in an appeal?

Answer 24

1. Yes, sometimes (rarely)
2. when the special grounds for the use of fresh evidence in an appeal are met (below).

special grounds:

• the evidence could not be obtained with reasonable diligence for the use at trial
• if given, the evidence would probably have an important influence on the result of the case, though it need not be decisive
• it must be such as is presumably to be believed, it must be apparently credible, though it need not be indisputable.

Question 25

What is the court’s approach to the use of fresh evidence that would lead to a re-trial?

Answer 25

if the fresh evidence would lead to a re-trial, this should only be allowed ‘if imperative in the interest of justice’/

Question 26

Where must an appeal be heard and who must hear the appeal when it is an appeal of decision of:

1. A district judge in the county court
2. a circuit judge in the county court
3. a district judge of the High Court
4. a High Court judge

Answer 26

1. a Circuit judge in the County Court
2. a High Court judge
3. a High Court judge
4. the Court of Appeal