Appeals (W18)

Question 1

CPR 52.2 - Parties to comply with Practice Directions 52A to 52E

Answer 1

All parties to an appeal must comply with Practice Directions 52A to 52E.

Question 2

CPR 52.3 - Permission to appeal

Answer 2

• An appellant or respondent requires permission to appeal—
  (a) where the appeal is from a decision of a judge in the County Court or the High Court, or to the Court of Appeal from a decision of a judge in the family court, except where the appeal is against—
  (i) a committal order;
  (ii) a refusal to grant habeas corpus; or
  (iii) a secure accommodation order made under section 25 of the Children Act 1989 or section 119 of the Social Services and Well-being (Wales) Act 2014; or
  (b) as provided by Practice Directions 52A to 52E.
• An application for permission to appeal may be made:
  (a) to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or
  (b) to the appeal court in an appeal notice.
• Where the lower court refuses an application for permission to appeal—
  (a) a further application for permission may be made to the appeal court; and
  (b) the order refusing permission must specify—
  (i) the court to which any further application for permission should be made; and
  (ii) the level of judge who should hear the application.

Question 3

CPR 52.4 - Determination of applications for permission to appeal to the County Court and High Court

Answer 3

• Where an application for permission to appeal is made to an appeal court other than the Court of Appeal, the appeal court will determine the application on paper without an oral hearing, unless the court otherwise directs.
• where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at an oral hearing.
• Where in the appeal court a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without an oral hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing.
• “Specialist Circuit Judge” means any Circuit Judge in the County Court nominated to hear cases in the Circuit Commercial, Chancery or Technology and Construction Court lists.
• A request for an appeal to be reconsidered at an oral hearing must be filed within 7 days after service of the notice that permission has been refused.

Question 4

CPR 52.5 - Determination of applications for permission to appeal to the Court of Appeal

Answer 4

• Where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing.
• The judge considering the application on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing.
• An oral hearing directed must be listed:
  (a) no later than 14 days from the date of the direction; and
  (b) before the judge who made that direction,
  unless the court directs otherwise.
• The Court of Appeal may, in any direction:
  (a) identify any issue or issues on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and
  (b) direct the respondent to serve and file written submissions and to attend the oral hearing.

Question 5

CPR 52.6 - Permission to appeal test: first appeals

Answer 5

• Except where rule 52.7 applies, permission to appeal may be given only where:
  (a) the court considers that the appeal would have a real prospect of success; or
  (b) there is some other compelling reason for the appeal to be heard.
• An order giving permission may:
  (a) limit the issues to be heard; and
  (b) be made subject to conditions.

Question 6

CPR 52.7 - Permission to appeal test: second appeals

Answer 6

• Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal, or a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
• The Court of Appeal will not give permission unless it considers that—
  (a) the appeal would—
  (i) have a real prospect of success; and
  (ii) raise an important point of principle or practice; or
  (b) there is some other compelling reason for the Court of Appeal to hear it.

Question 7

CPR 52.12 - Appellant’s notice

Answer 7

• Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice.
• The appellant must file the appellant’s notice at the appeal court within:
  (a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing
  (b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.
• unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent—
  (a) as soon as practicable; and
  (b) in any event not later than 7 days,
  after it is filed.
• Where an appellant seeks permission to appeal against a decision to refuse to grant an interim injunction under section 41 of the Policing and Crime Act 2009, the appellant is not required to serve the appellant’s notice on the respondent.

Question 8

CPR 52.13 - Respondent’s notice

Answer 8

• A respondent may file and serve a respondent’s notice.
• A respondent who—
  (a) is seeking permission to appeal from the appeal court; or
  (b) wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court,
  must file a respondent’s notice.
• Where the respondent seeks permission from the appeal court it must be requested in the respondent’s notice.
• A respondent’s notice must be filed within—
  (a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or
  (b) where the court makes no such direction, 14 days after the date in paragraph (5).
• This date is:
  (a) the date the respondent is served with the appellant’s notice where—
  (i) permission to appeal was given by the lower court; or
  (ii) permission to appeal is not required;
  (b) the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
  (c) the date the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together.
• Unless the appeal court orders otherwise, a respondent’s notice must be served on the appellant and any other respondent—
  (a) as soon as practicable; and
  (b) in any event not later than 7 days,
  after it is filed.

Question 9

CPR 52.14 - Transcripts at public expense

Answer 9

• the lower court or the appeal court may direct, on the application of a party to the proceedings, that an official transcript of the judgment of the lower court, or of any part of the evidence or the proceedings in the lower court, be obtained at public expense for the purposes of an appeal.
• Before making a direction, the court must be satisfied that—
  (a) the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining a transcript would be an excessive burden; and
  (b) it is necessary in the interests of justice for such a transcript to be obtained.

Question 10

CPR 52.15 - Variation of time

Answer 10

• An application to vary the time limit for filing an appeal notice must be made to the appeal court.
• The parties may not agree to extend any date or time set by—
  (a) these Rules;
  (b) Practice Directions 52A to 52E; or
  (c) an order of the appeal court or the lower court.

Question 11

CPR 52.16 - Stay

Answer 11

Unless—
(a) the appeal court or the lower court orders otherwise; or
(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,
an appeal shall not operate as a stay of any order or decision of the lower court.

Question 12

CPR 52.20 - Appeal court’s powers

Answer 12

• In relation to an appeal the appeal court has all the powers of the lower court.
• The appeal court has power to—
  (a) affirm, set aside or vary any order or judgment made or given by the lower court;
  (b) refer any claim or issue for determination by the lower court;
  (c) order a new trial or hearing;
  (d) make orders for the payment of interest;
  (e) make a costs order.
• In an appeal from a claim tried with a jury the Court of Appeal may, instead of ordering a new trial—
  (a) make an order for damages; or
  (b) vary an award of damages made by the jury.
• The appeal court may exercise its powers in relation to the whole or part of an order of the lower court.
• If the appeal court—
  (a) refuses an application for permission to appeal;
  (b) strikes out an appellant’s notice; or
  (c) dismisses an appeal,
  and it considers that the application, the appellant’s notice or the appeal is totally without merit:
  (a) the court’s order must record the fact that it considers the application, the appellant’s notice or the appeal to be totally without merit; and
  (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 13

CPR 52.21 - Hearing of appeals

Answer 13

• Every appeal will be limited to a review of the decision of the lower court unless:
  (a) a practice direction makes different provision for a particular category of appeal; or
  (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
• Unless it orders otherwise, the appeal court will not receive:
  (a) oral evidence; or
  (b) evidence which was not before the lower court.
• The appeal court will allow an appeal where the decision of the lower court was—
  (a) wrong; or
  (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
• The appeal court may draw any inference of fact which it considers justified on the evidence.
• At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.

Question 14

Destination of an appeal of a decision made in the County Court by a District Judge (other than decisions in non-insolvency proceedings brought pursuant to the Companies Acts)

Answer 14

To be heard by a Circuit Judge in the County Court

Question 15

Destination of an appeal of a decision made in the County Court by a District Judge in non-insolvency proceedings brought pursuant to the Companies Acts

Answer 15

To be heard by High Court Judge or Registrar

Question 16

Destination of appeal of a decision made in the County Court by a Circuit Judge

Answer 16

To be heard by a High Court Judge

Question 17

Destination of appeal of a decision made in the High Court by a Master, Registrar or District Judge

Answer 17

High Court Judge

Question 18

Destination of appeal of a decision made in the High Court by a High Court Judge

Answer 18

Court of Appeal

Question 19

Destination of appeal of a decision made in the Intellectual Property Enterprise Court by a District Judge

Answer 19

Enterprise Judge

Question 20

Destination of appeal of a decision made in the Intellectual Property Enterprise Court by an Enterprise Judge

Answer 20

Court of Appeal

Question 21

Destination of appeal of a decision made in the County Court by a District Judge on individual insolvency

Answer 21

High Court Judge

Question 22

Destination of appeal of a decision made in the County Court by a Circuit Judge on corporate insolvency

Answer 22

High Court Judge or Registrar

Question 23

Destination of appeal of a decision made in the High Court by a Master, Registrar or DJ

Answer 23

High Court Judge

Question 24

Destination of appeal of a decision made in the High Court by a High Court Judge

Answer 24

Court of Appeal

Question 25

52APD.6 - Where to apply for permission to appeal

Answer 25

An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or
(b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court.

Question 26

5APD.7 - Form of application for permission to appeal

Answer 26

An application for permission to appeal to the appeal court must be made using an appellant’s notice (Form N161 or N164 (small claims track)).

Question 27

5APD.8 - Appeals from Masters, Registrars and District Judges of the High Court

Answer 27

• In relation to appeals from Masters—
  (a) applications for permission to appeal must be heard by a Group A Judge;
  (b) if permission to appeal is given, the appeal may be heard by a Group A Judge or a Group B Judge authorised to hear the appeal by the Judge in Charge of the Queen’s Bench List or the Chancellor of the High Court.
• In relation to appeals from Registrars: applications for permission to appeal and appeals must be heard by a Group A Judge.
• In relation to appeals from District Judges of the High Court:
  (a) applications for permission to appeal must be heard by a Group A Judge;
  (b) if permission to appeal is given, the appeal may be heard by either:
  (i) a Group A Judge;
  (ii) a Group C Judge sitting in the High Court; or
  (iii) in exceptional circumstances, a Group D Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge.

Question 28

5APD.9 - Appeals from the County Court to the High Court

Answer 28

Where the lower court is the County Court:
subject to sub-paragraph (b)—
(i)applications for permission to appeal must be heard by a Group A Judge;
(ii)if permission to appeal is given:
(A)where the appeal is from a Recorder, the appeal may be heard by either a Group A Judge or, in exceptional circumstances, a Group C Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge;
(B)in all other cases, the appeal may be heard by either a Group A Judge or, in exceptional circumstances, a Group D Judge authorised to hear the appeal by the Appropriate Presiding or Supervising Judge.
- where the appeal is from a District Judge in proceedings brought pursuant to the Companies Acts, an appeal to the High Court will be dealt with as follows—
(i)applications for permission to appeal must be heard in accordance with the following provisions:
(A)if the appeal centre is the RCJ, by a salaried Registrar in Bankruptcy; or
(B)in any other appeal centre, by a Group C Judge or Group A Judge provided that the judge is one who could hear the appeal in accordance with sub-paragraph (iii).
- (ii) for appeals in which the appeal centre is the RCJ: appeals must be heard by a Registrar;
(iii)for appeals in any other appeal centre: appeals may be heard by a Group A Judge or a Group B Judge, provided that—
(A)the Group A Judge is a judge of allocated to the Insolvency and Companies List of the Business and Property Courts or is authorised by the Chancellor of the High Court to hear the appeal;
(B)if the Group B judge is a Group D Judge, they have been authorised by the Supervising Judge of the Business and Property Courts to hear the appeal;
(C)if the Group B Judge is a Group C Judge, they have appropriate authorisation.

Question 29

5APD.10 - Appeals within the County Court

Answer 29

The Designated Civil Judge in consultation with the appropriate Presiding or Supervising Judge has responsibility for allocating appeals from decisions of District Judges in the County Court to Circuit Judges and/or Recorders. Such an appeal may only be allocated to a Recorder in exceptional circumstances.

Question 30

5APD.11 - Applications within appeals to the High Court and within the County Court

Answer 30

Where the appeal is an appeal to the High Court or within the County Court, any judge who may hear the appeal, could be authorised to hear the appeal or to whom the appeal could be allocated may:

(a) hear any application made within the appeal, including an application for a stay but excluding an application for permission to appeal; and
(b) give directions in the appeal.
- In addition, where the appeal is to the High Court and is from the decision of a Circuit Judge sitting in the County Court, a Group C Judge may—
(a) hear any application made within the appeal, including an application for a stay but excluding an application for permission to appeal; and
(b) give directions in the appeal.

Question 31

5APD.12 - Appeal in relation to case management decision

Answer 31

Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether:

(a) the issue is of sufficient significance to justify the costs of an appeal;
(b) the procedural consequences of an appeal (e.g loss of trial date) outweigh the significance of the case management decision;
(c) it would be more convenient to determine the issue at or after trial.

Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts’ reports, directions about the timetable of the claim, adding a party to a claim and security for costs.

Question 32

5APD.13 - Second appeal

Answer 32

An application for permission to appeal from a decision of the High Court or the County Court which was itself made on appeal is a second appeal and must be made to the Court of Appeal. If permission to appeal is granted the appeal will be heard by the Court of Appeal.

Question 33

5APD.14 - Skeleton arguments

Answer 33

• The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.
• A skeleton argument must—
  o be concise;
  o both define and confine the areas of controversy;
  o be set out in numbered paragraphs;
  o be cross-referenced to any relevant document in the bundle;
  o be self-contained and not incorporate by reference material from previous skeleton arguments;
  o not include extensive quotations from documents or authorities.
• Documents to be relied on must be identified.
• Where it is necessary to refer to an authority, a skeleton argument must—
  (a)state the proposition of law the authority demonstrates; and
  (b)identify the parts of the authority that support the proposition.
  If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.
• The cost of preparing a skeleton argument which—
  (a) does not comply with the requirements set out in this paragraph; or
  (b) was not filed within the time limits provided by this Practice Direction (or any further time granted by the court),
  will not be allowed on assessment except as directed by the court.
• The parties should consider what other information the appeal court will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.
• Any statement of costs must show the amount claimed for the skeleton argument separately.

Question 34

CPR 52.21.1 - Whether the appeal should be by way of review or rehearing

Answer 34

• every appeal will be limited to a review of the decision of the lower court, unless (a) a practice direction makes different provision or (b) in the circumstances of an individual appeal “it would be in the interests of justice to hold a re-hearing”.
• the decision whether to review or to re-hear will be heavily conditioned by the facts of particular cases, although (where the Practice Direction does not require a re-hearing) the normal practice will be to review.
• (1) generally the fact that the court below had not given reasons was not a ground for holding a re-hearing, rather than a review, but (2) it would be otherwise if the court below had been asked to give its reasons and had refused to do so or if there was some good reason for not asking the court below to give its reasons.
• where the judge’s evaluation of the facts or exercise of discretion is challenged, then the difference between a review and a rehearing will be of considerable importance.
• “review” is not to be equated with judicial review. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material.
• The power of the appeal court to receive fresh evidence pursuant to r.52.21(2) arises both on a re-hearing and on a review

Question 35

CPR 52.21.3 - Fresh evidence

Answer 35

• Unless the appeal court orders otherwise, it will not receive evidence (oral or written) which was not before the lower court.
• Prior to May 2000, after there had been a trial on the merits, by rule the Court of Appeal had power to receive “further evidence”, but could admit such evidence only on “on special grounds”.
• Subject to certain established exceptions, the “special grounds” were: (1) the evidence could not have been obtained with reasonable diligence for use at the trial;
  (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.
• r.52.21(2) did not retain the former requirement for “special grounds”. Nevertheless the principles reflected in Ladd v Marshall remain relevant. They are matters which the Court of Appeal must consider in the exercise of its discretion, when deciding whether to receive fresh evidence.