APPEALS

Routes
Lower court Appeal court
CC DJ CC Circuit Judge
HC Master HC Judge or s.9 judge sitting as a HC judge
CC Judge HC Judge or s.9 judge sitting as a HC judge
HC Judge CA
CA Supreme Court

Court Deciding judge Decision under Destination

appeal
County Court District Judge Any except next County Court Circuit
entry Judge
County Court District Judge Companies Act case High Court Judge
County Court Circuit Judge Any High Court Judge
High Court Master Any High Court Judge
High Court High Court Judge Any Court of Appeal
IPEC District Judge Any Enterprise Judge
IPEC Enterprise Judge Any Court of Appeal

Exceptions to the Basic appeal routes

Second Appeals
Appeal route: always to the Court of Appeal
Permission to bring a second appeal: more onerous test, see below

What is a second appeal? Example:

Interim application is made to the CC DJ
First appeal is to the CC CJ (the usual route of appeal)
Any further appeal from CC CJ goes to CA (being a second appeal)

Need for permission

- Appellant or Respondent needs permission to appeal
- Appeal is from CC or HC, or to the CA from a decision of a judge in a family court
- PD 52A to 52E
- No need permission when the permission to appeal is against:-
o A committal order
o Refusal to grant habeas corpus
o Secure accommodation order made under s.25 of Childrens Act 1989
Permission
- If apply for permission to appeal in the appeal court other than the CoA, the appeal
court now decide application without hearing
- A party refused application to appeal can request an oral hearing r52.4(2)
- Judge of HC, Designated Civil J or Specialist Circuit J or Specialist Circuit J can
order that party cannot request an oral rehearing if he/she refuses permission on
paper and considers that the application is totally without merit r52.4(3)
- If application for permission to appeal is made to CoA, gen rule is that CoA will
consider the application on paper r52.5(1)
o However the judge who considered the application in paper may direct the
application to be determined at an oral hearing and
o MUST do so if he is in the opinion that the application cannot fairly be
determined on paper without an oral hearing r52.5(2)
o Such hearing must be listed no later than 14 days from the judges direction
and before the same judge r52(3)
Test for permission (1st appeal)
- Appeal court must consider if:- r52.6(1)
(a) Appeal would have real prospect of success; or
(b) There is some other compelling reason for the appeal to do so

Test for permission (2nd appeal)

- Second appeal IS ALWAYS TO THE COA
- Permission to make a 2nd appeal can only be sought from the CoA and not the lower
court.
(a) appellant must demonstrate not only that the appeal would raise an important
point of principle or practice but also that it would have a real prospect of success
r52.7(2)(a); or
(b) there is some other compelling reason for the court to hear it.
Procedure for permission
a) On appeals to the CC or the HC
- Initially made orally to the lower court at the hearing where the decision under appeal
was made r.52.3(2)(a)
- Or it can be initiated in an appeal notice to the appeal court r52.3(2)(b)
- Where the lower court refuses the permission (first bullet), a further application can
be made to the appeal court, made in an appeal notice, and determined on papers
without oral hearings r52.3(3)(a) and 52.4(1)
- If the appeal court refuses permission on the papers (bullet 3 above), the appellant
may request the decision to be reconsidered at an oral hearing - r52.4(2)

b) On appeals to the CoA

- Initially made orally to the lower court at the hearing where the decision under appeal
was made r.52.3(2)(a)
- Or it can be initiated in an appeal notice to the appeal court r52.3(2)(b)
- CoA usually consider the permission application on papers r52.5(1)
- If the CoA judge looking at the application on paper considers that it cannot be fairly
determined on papers, the CoA judge may instead make a direction for the
application to ve determined at an oral hearing r52.5(2)
 o The direction may identify any issued the appellant should focus its
submissions on
o The direction may also require the R to file and serve written submissions
o May also direct R to attend the oral hearing
- The oral hearing must be listed no later than 14 days from the day of direction
(r52.5(3))
- Itll be heard by the judge who made the directions
Time limits to apply
- 21 days from the date of the decision of the lower court r52.12(2)(b)
- Variation of time
o Applications to extend the 21-day period are made in the Appellant's Notice
o Extensions cannot be agreed between the parties (CPR, r. 52.15(2))
o Not a good idea to rely on this

Applications for extensions of time to appeal are considered applying the principles
on relief from sanctions under CPR, r. 3.9 as set out in Denton v TH White Ltd [2014]
1 WLR 3926

- If appellant seek to appeal, MUST file in the appellant notice

- Permission to extend more time needs to be in the As notice. Notice should state the
reason of delay and steps taken prior to the application being made.
- Failure to seek permission in the notice is irregularity, court can cure under its power
in r3.10., applying the criteria in r3.9 and Denton.
- When the extension is sought and permitted, the R has the right to be heard whether
the extension should be allowed.
- If the R unreasonably opposes the extension, he risks being ordered to pay As cost
of application to extend time.

Salford Estates (No 2) Ltd v Altomart Ltd [2015] 1 WLR 1825

- Application to extend time for serving Rs notices in appeal are also governed by the
implied sanctions doctrine. What it meant was that, a court has refused the
application, and that the applicant will suffer adverse consequences, and so making
an application to relief from sanctions. Court will therefore apply the principles in r3.9
and only grant it if satisfies the criteria in Denton

o Time limit for doing so:

Period directed by lower court or
If no direction, 21 days after the date of the decision
o Unless appeal court orders otherwise, appellants notice must be served on
respondent:
As soon as practicable and
In any event not later than 7 days after it is filed
o Need not serve if appeal against refusal to grant interim injunction under s41
of PCA 2009

- If Respondent seeks to appeal/seek to uphold lower courts order for reasons

different from/additional to lower court, must file respondent notice
o Time limit for doing so:
 Period directed by lower court or

If not direction 14 days after R is:

served w AN
served w notification that appeal court has given permission
R is served with notification that application for permission to
appeal and appeal itself are to be heard together
o Unless appeal court orders otherwise, RN must be served on the A:
as soon as practicable and
in any event not later than 7 days after it is filed.
o Need not serve if appeal against refusal to grant interim injunction under s.41
PCA 2009
- Time may be extended or shortened per r3.1(2)(a). Parties can't agree this
themselves per r52.6(2).
Notices
Appellants Notice
- Must set out the grounds of appeal. They must identify as concisely as possible the
respects in which the judgment of the lower court was either wrong/ unjust because
of a serious procedural or other irregularity.
- Set out in general form, not lengthy because thatll be in the SA.
- If A seeks permission from the appeal court, must state it in the notice
- Interim application within appeal may be made either by including them in the notice,
or by issuing a separate Pt 23 Notice of application
- Application to extend time to appeal can be made by including it in the notice, or by a
separate N244
- The notice must defines the appeal issue, in which a party cannot rely on matters not
contained in the notice unless ct gives permission.
- Appeal notice can only be amended with Cts permission

Respondents Notice
- Is required unless the R is simply relying on the reasons of the court below
- If R is counter-appealing, R also needs permission to appeal and notice as above.

Skeleton Arguments
- Purpose is to assist the court by setting out concisely as practicable the arguments
upon which party intends to rely.
- The reason as to why the decision under appeal is wrong or unjust must not be
included in the grounds of appeal and must be confined to the skeleton argument
- SA must be: (PD 52A, para 5.1)
o Concise
o Both define and confine the areas of controversy
o Set out in numbered paragraphs
o Be cross-referenced to any relevant doc in the bundle
o Be self-contain (not include reference to previous SA)
o Not include extension quotations from doc or authorities
o Identified doc relied on

- If rely on authority must: PD 52A, para 5.1(4),

 o State the proposition of law the authority demonstrates;
o Identify the parts of the authority that support the proposition
- If cite more than one authority for one proposition, must state why
- Cost of SA that does not comply with these requirements or not filed within the time
limits, will not be allowed on assessment except as directed by the court.
- Statement of costs must show amount claimed for SA
Stay
- Application to stay of enforcement of the lower courts decision are made in the
appellants notice or by separate N244.
- NOTE: unless the appeal court or the lower court order otherwise, an appeal shall
not operate as a stay of any order or decision of the lower court.
Power of the appeal court
- Appeal court has all the powers to:-
o Affirm, set aside, vary decision of the lower court
o Refer any issue back for redetermination
o Order new trail/hearing (LAST RESORT)
o Order cost/ interest
- If the case was heard by jury, CA instead of ordering a retrial:-
o Make an order for damages, or
o Vary an award of damages made by the jury.
- Where an appeal court:-
o Refuses an application for permission to appeal
o Strikes out an appellants notice, or
o Dismisses an appeal,

And it considers that the application/AN or appeal is totally without merit, courts
order must record this fact and at the same time consider whether to make a civil
restraint order.

Hearing of the Appeal

Grounds for Allowing an Appeal \
An appeal can be allowed if the decision below was:

Wrong
Unjust through some serious procedural or other irregularity

CPR, r. 52.21(1):

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.

Exceptions where an Appeal is by Rehearing

Auderson v La Baguette Ltd [2002] EWCA Civ 10
(1) The general rule is that all appeals are by review
(2) Rehearing only if in all the circumstances of the individual appeal it is in the interests
of justice to do so
(3) Undesirable to attempt to formulate criteria
(4) Material where it is alleged the lower court's decision is unjust because of serious
procedural or other irregularity
When it is in the interests of justice to have a rehearing?

Court below has not given reasons is not a ground for holding a re-hearing

BUT if court below had been asked to give its reasons and had refused to do so

Appeals for Registrar of Trade Marks will proceed by way of review so does application
for extension of time
Difference between Review and Rehearing - they are almost always reviews (unless if
interest of justice to do so, then It will be a re-hearing it must be a strong case)

EI Du Pont Nemours & Co v ST Du Pont [2003] EWCA Civ 1368

The precise meaning of 'review' and 'rehearing' depends on the circumstances of

each case
A review involves looking at the documentary materials seen by the lower court and
asking the appeal court to find something in the lower court's decision which is
seriously wrong. An appeal will not be allowed just because the appeal court
disagrees with the lower court's decision
On a review appropriate respect will be given to the lower court's decision
The degree of respect given is a spectrum. At one extreme are decisions (i) of
primary fact where credibility is in issue and (ii) purely discretionary decisions, both of
which are given the greatest respect. It means that it is very difficult to overturn a
lower court's decision if based on the exercise of a discretion: APA para 50.63
At the other end of the spectrum, appeal courts are more ready to interfere with (i)
inferences from primary fact and (ii) analysis of documentary evidence
A rehearing means a re-hearing in the fullest sense of the word. The appeal court
considers the materials (usually in documentary form) afresh, and makes its own
decision on them
The power to receive fresh evidence applies both on reviews and rehearings

Evidence (see Evidence below)

Appeal Court will not receive oral evidence or fresh evidence which was not before the
lower court, unless it orders otherwise
o Ladd v Marshall: fresh evidence can be adduce where:
The evidence could not have been obtained w reasonable diligence for
use at trial
The evidence must be such that if given it would have an important
influence on the result of the case (though need not be decisive)
 Evidence must be such as is presumed to be believed (apparently
credible)
Party may not rely on a matter not contained in his appeal notice unless the appeal
court gives permission
Appeal court may draw any inference of fact which it considers justified on the evidence

Transcripts
A transcript of the judgment of the judge in the court below is generally required on an
appeal, because:
(a) Appeals are generally reviews of decisions, so the appeal court needs to know the
reasons given by the lower court judge so they can be reviewed; and
(b) Appeals inter alia are allowed if the lower courts decision was wrong, so the appeal
court needs the reasons of the lower court to assess whether it was indeed wrong.

Except where the claim has been allocated to the small claims track, the appellant must
obtain a transcript or other record of reasons of the lower court as follows

(a) where the judgment has been officially recorded, the appellant must apply for an
approved transcript as soon as possible and, in any event, within 7 days of the filing of the
appellants notice;
(b) where the judgment under appeal has been handed down in writing, the appellant must
obtain and retain a copy of the written judgment;
(c) in any other case, the appellant must cause a note of the judgment under appeal to be
made and typed. The parties to the appeal should agree the note, which should then be sent
to the judge of the lower court for approval. The parties and their advocates have a duty to
make, and to co-operate in agreeing, a note of the judgment.

CPR, r. 52.14 The lower court or the appeal court can direct that a transcript be obtained at
public expense if:
(a) The applicant qualifies for fee remission; and
(b) It is necessary in the interests of justice.

Fresh Evidence
Appeals are reviews, so the usual rule is that the appeal court only looks at the materials
that were before the lower court. Appeals are not an opportunity to have "another bite at the
cherry". The basic rule is: deploy your whole case at the first instance hearing. You cannot
bring out extra material on the appeal.
Appeal courts do have an exceptional power to allow in fresh evidence.

Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 (and other cases)

The Ladd v Marshall principles survive into the CPR as guidelines

 'Special grounds' are required before fresh evidence will be allowed

Exercised in accordance with the overriding objective

Due regard is given to the need for finality in litigation

And the proportionality in costs terms of investigating the point

Ladd v Marshall [1954] 1 WLR 1489

On an appeal from a final decision, fresh evidence will only be permitted if:

Evidence could not have been obtained with reasonable diligence

Evidence would have had an important influence on the result, though it need not be
decisive

Evidence is apparently credible

On an appeal from an interim decision, fresh evidence may be permitted if there has been a
material change of circumstances:
R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982
A challenge is sustainable in only four types of case. These are where the tribunal has
(i) made perverse or irrational material findings of fact;
(ii) failed to take into account and/or resolve conflicts of fact or opinion on material
matters;
(iii) given weight to immaterial factors; or
(iv) made a mistake as to a material fact, which could be established by objective and
uncontentious evidence, and which results in unfairness