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Summary Appeals and Enforcement Workbook Civil Litigation LPC Lecture, SGS and Solution Notes and Exam Structure (High Distinction)
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Appeals- Relevant provisions located in CPR Part 52 and PD 52A to 52E
- “appeal court” is the court to which you will appeal, not necessarily the Court of Appeal
Form of appeals
- No automatic right of appeal exists.
- Appeals take the form of review of the lower court’s decision rather than a re-hearing of the matter. There will only be a re-hearing if
a PD allows it or if the court considers it to be in the interest of justice in the circumstances of an individual appeal.
- No fresh evidence can be brought that was not available in the lower court unless the appeal court orders CPR 52.21(2)
Grounds for appeal:
CPR 52.21(3) An appeal will only be allowed by a higher court than the one which made the decision if:
a) Where the court’s decision was wrong; or
b) Was unjust because of a serious procedural or other irregularity; or
c) The decision below was based on a finding which was against the weight of the evidence as a whole
(COURT WILL NOT OVERTURN BECAUSE IT DISAGREES WITH LOWER COURT’S DISCRETION)
Structure
General rule is :
a) You need permission to appeal; and
b) You have 21 days from the original decision to appeal 52.12(2)(b) (not including Supreme Court appeals)- although this can be
extended by an application to a lower court 52.12(2)(a) if a party has good reason for seeking a longer period in which to appeal
52BPD3.
c) Judgments and orders take effect from the date they are given or made or such later date as the court may specify 40.7(1)
Who hears the appeal and transferring an appeal
- Transfer under CPR 52.23- a lower court then CoA can transfer a first appeal directly to the CoA where:
a) The appeal will raise an important point of principle or practice or;
b) There is some other compelling reason for the CoA to hear it.
An appeal from… Who do you appeal to?
County court district judge County court circuit judge
Country court district judge dealing with non-insolvency proceedings brought pursuant to the Companies High court judge or registrar
Act
County court circuit judge High court judge
High court master High court judge
High court judge Court of Appeal
Permission to appeal
- CPR 52.3 provides the general rule that permission is required for all appeals unless the situation falls within one of three exceptions
set out in CPR 52.3(1) where no permission is required
Applying for permission
- May be made orally to the lower court at the time when the decision to be appealed is made CPR 52.3(2)
- Alternatively, an application must be made to the appeal court in the appellant’s notice CPR 52.3(2)(b) and (3)
- Application should be made within the time limit stipulated in CPR 52.12 (21 days)
1. If appealing to the CoA, permission will be determined on papers alone unless the judge considers that matters should be dealt
with orally 52.5(1) and (2) and they will do so if they cannot “fairly determine” the application on papers, hearing will be listed
within 14 days
2. If appealing to the CC or HC, if they refuse the paper application for permission the appellant can request (7 days after service of
the notice refusing permission) that the decision be reconsidered at an oral hearing pursuant to CPR 52.4. If refused at an oral
hearing, no appeal decision is possible.
1
, Test for granting permission
Permission will only be granted where the court considers:
a) That the appeal would have a real prospect of success; or
b) That there is some other compelling reason why the appeal should be heard CPR 52.6
Real prospect of success means that the prospect of success must be realistic rather than fanciful.
Appellants notice
- Must be filed and served within the relevant time period 52.12 and 52BPD 4.1 and 4.2 give further guidance on other documents that
must also be filed and served
- Must also contain the grounds for appeal and state the reasons why CPR 52.21(3) applies (see above at grounds for appeal).
Respondent’s Position and Respondent’s Notice
Respondent’s notice
CPR 52.12(2) provides that a R’sN must be filed and served by a respondent who:
a) Is seeking permission to appeal from the appeal court (second appeal); or
b) Wishes to ask the appeal court ot uphold th order of the lower court for reasons different from or additional to those given
by the lower court.
Three types of respondent
1. A respondent who is happy with the decision of the court below and wishes it tobe upheld for the reasons given by the
lower judge- this respondent does not need to serve a respondent’s notice
2. A respondent who wishes to uphold the decision of the court below but for different reasons- this respondent needs to
serve a respondent’s notice setting out the different or additional reasons 52CPD8(1) and (3)
3. A respondent who wishes to ask the appeal court to vary the order of the lower court- permission to appeal must be
sought on the same basis as for the appellant ie 52CPD 8(2). He also needs to serve a respondent’s notice setting out the
grounds on which it is arguing that the order of the court below should be varied.
Time limits
A respondent should file his R’sN within a period as may be directed by the lower court; or
The notice must be filed within 14 days after the on which the respondent became aware that the appeal was going ahead
52.13(5)
Effect on lower court
- Initiating an appeal does not automatically stay the order (which is being appealed) obtained in the lower court unless there is
good reason for ordering a stay
CPR 52.16 provides that an appeal will operate as a stay if:
a) The appeal court or the lower court so orders; or
b) The appeal is from the Immigration and Asylum Chamber of the Upper Tribunal
Appeal hearings
CC circuit judges and HC judges hear appeals alone
CoA (usually 3 sit) but have two Lord Justice sit on interim appeals and three on final appeals. Where the two are divided, either
party may apply for a rehearing before a three judge court
Supreme court generals sits 5 members
General powers vested in the appeal court
CPR 52.20(1) states that in relation to an appeal, the appeal court has the powers of the lower court.
52.20(2) provides the court has the 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; and/or
f) dismiss the appeal
Second appeals
2
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