#14948 - Appeals - Principles of Civil Procedure

Appeals

General

• Almost always with permission — from lower or higher court

• Criteria — whether appeal has real prospects of success / other compelling reason

• Review rather than rehearing of lower decision — can only interfere in limited circumstances

• Finality

  • Second appeal only if important principle or some other compelling reason, with permission of CA

  • New arguments on appeal

Permission

• As of right for

  • Committal order

  • Refusal to grant habeas corpus

  • Secure accommodation order under Children Act 1989

• Permission scheme similar to Victoria

• Criteria — CPR 52.3(6)

  • First appeals — real prospects of success / other compelling reason

    • Higher than resisting summary judgment because evidence has already come out — less uncertainty

  • Second appeal — important point of principle or practice / other compelling reason

    • Other compelling reason incl visitation jurisdiction

• Interim decisions also subject to appeal

  • Previously, interim appeals would be de novo

• Hypothetical appeals — can hear if in the public interest & have consent of parties

  • Can apply to have costs indemnified

Time limits

• 21 days to file appeal

• Court will take into account CPR 3.9 to decide whether to grant extension: Sayers

  • AZ says should strictly enforce

Standing

• Not limited to parties — persons affected can join appeal to defend it: Wimpey (planning dispute — one party got a permission, neighbour didn’t — neighbour sued & lost — first party had permission revoked as a consequence — so joined appeal to contest it)

• Interventions / amicus briefs —

  • SC Rule 15 — any person can make submissions

  • Not of assistance to simple reiterate the same point: E v Chief Constable (2008)

  • How to draw the line? Depending on how representative a body is, or does this amount to political judgments

Powers on appeal

• Appeal court has all powers of lower court

  • Affirm/vary/set aside

  • Remit/order retrial

  • Vary remedy

  • Vary costs

• Standard of review

  • De novo appeals now largely dispensed with

• Interaction with human rights

  • MT (Algeria) v Sec of State per Lord Hoffmann (at trial found that permissible to deport suspected terrorists back to Algeria & Jordan — on appeal, argued that would be tortured — and that trial would be on evidence obtained by torture — argued that ECHR prohibits torture — argued that Art 6 requires appeal court to decide whether deportation would breach rights against torture ECHR does not guarantee right of appeal — if there is an appeal, must comply with right to fair trial)

    • Lord Hoffmann: CA can only do what it is empowered to do by statute — only has power to hear appeals by review

  • B (Care Proceedings) (Art 8 right to family life — adoption order to put child into adoption against wishes of parents — trial judge determined that was proportionate to Art 8

    • Neuberger for majority — fact of involvement of Convention right doesn’t require CA to exceed appeal rights — requires only that court system as a whole determines question for itself

    • Lord Kerr & B Hale dissenting — appellate court must act in a way compatible with art 6 — must decide for itself whether it is proportionate

• Deference to trial court

  • Rationale — Biogen v Medeva (1997) per Lord Hoffmann — written reasons never gives all of the reasons

  • Arab Insurance Group per Clarke LJ

    • Give deference to extent that primary judge has an advantage

    • AH: to minimise risk of error — no reason that appeal court will be any better at determining question of fact than trial court

  • Query whether exposure to oral evidence actually puts trial judge in better position

    • Biases / incorrect interpretation of human behaviour

    • Are judges better equipped to escape biases or just convince themselves they are trained to avoid them?

  • Deference to exercises of discretion — in remedy, sentence etc

• Types of factual findings

  • Bare facts

  • Whether standard met

  • Counterfactuals — what would have happened (but for causation)

  • Predictions — assessment of damages

Finality

• Discovery of new evidence before appeal /...