#10371 - Appeals - BPC Civil Litigation

APPEALS

GROUNDS FOR ALLOWING AN APPEAL

• appeal can only be brought on point taken in court below unless sufficient reason established e.g. recent legal development

The test

• appeal will only succeed if decision below:

1. wrong ("unsustainable"); OR

2. unjust because of serious procedural or other irregularity

Principles

• ? appealing discretion

  • CANNOT interfere with discretion unless:

1. misunderstanding of law / fact

2. new evidence before appeal court makes lower court's inference wrong

3. change of circumstance since lower court decision

4. decision Wednesbury unreasonable (Hadmor v Hamilton)

• questions of fact

• inferences of fact from facts found by lower court

• errors of law and principle

• substantial procedural irregularity

  • misdirections to jury

  • improper admission / non-admission of evidence

  • frequent / intemperate interventions

  • sending letter to judge without sending copy to other dife

  • excessive delay in delivering judgment which may have caused errors (12 months after trial / 4 weeks after II)

• inadequate reasons (rare - remit to lower court for additional reasons)

ROUTES OF APPEAL

Basic structure

• basic structure

1. coco DJ (or deputy) coco CJ

2. coco CJ (or deputy)

   1. generally HC judge

   2. second appeal CA

(i.e. (a) already done)

3. HC master / HC DJ (or deputy)

   1. generally HC judge

   2. final decision: in multi-track

Part 7 claim OR specialist CA

proceedings

4. HC judge (may be second appeal) CA

5. CA SC

• final decisions ref: above

  • final decision =

    • would determine entire proceedings, whichever way court decided issues; OR

    • made at conclusion of hearing / trial split into parts AND determines entirety of that part of the claim

  • examples

    • final decision on aspect of claim e.g. limitation

    • final decision on part of claim tried separately

    • strike out of proceedings

    • strike out of SoC

    • order for SJ (Tanfern v Cameron MacDonald)

    • order on summary / detailed assessment of costs

    • order on application to enforce final decision (PD 52A para 3.6, 3.8(2))

    • case management orders

PERMISSION TO APPEAL

When is permission required?

• required to appeal from any judge in coco OR HC - unless liberty of a subject in issue - i.e. appeal against refusal of:

  • committal order

  • habeas corpus

  • secure accommodation

• NOT required to appeal from decision of authorized costs officer in DA proceedings costs judge / DJ

Test for granting permission

• only grant if:

1. appeal would have real prospect of success (realistic NOT fanciful); OR

2. some other compelling reason why appeal should be heard

• case management decisions only

3. issue justify costs of appeal

4. procedural consequences of appeal (e.g. losing trial date)

5. whether more convenient to determine point at or after trial (PD 52A para 4.6)

Seeking permission and reconsideration of whether to grant

• can seek:

1. from lower court at hearing (unless second appeal)

   • oral application at end of hearing after costs

   • if refuse, seek permission from appeal court

----OR----

2. directly from appeal court (r52.3(2))

   • seek permission in writing in A's notice - within 21 days (see below) (considered on paper without hearing)

     • if totally without merit, court may order that person CANNOT seek reconsideration at hearing if refused (r52.3(4A) (see below)

   • if considered without a hearing (usual) (r53.3(2)(b), 52.4(1))

     • if granted parties notified in writing

     • if refused, parties can request reconsideration at oral hearing:

       • the request - file + serve on R 7 days after notice of refusal

       • the written statement - file + serve on R min 4 days before hearing:

         • points to be raised at hearing

         • reasons why permission should be granted (PD52C para 16(1))

       • the permission hearing - court notifies R, but not required to attend unless court requests

   • if reconsiders (OR considers) at oral hearing, NO appeal (regardless of whether grant / refuse permission) (AJA 1999 s54(4))

Limiting the issues on granting permission

• order giving permission may:

  • limit issues to be heard (A can request to be reconsidered at hearing by giving notice)

  • be made subject to conditions (r52.3(7))

Granting permission

• court notifies parties of decision on permission + reasons (PD 52C para 15(1))

• appeal court may make case management orders, which prevail over PDs (PD 52B para 5.1, PD 52C para 2)

• appeals to CA - Civil Appeals Office sends parties listing window notification

Reasons for refusal

• short reasons given ( art 6 breach)

APPEALS TO CA

Leapfrog appeals to CA

• applies if normal route is:

1. coco DJ (or deputy) coco CJ; OR

2. HC master / DJ (or deputy) HC judge; OR

3. coco CJ (or deputy) HC judge

• lower court OR appeal court may order appeal to be transferred to CA if:

1. raises important point of principle / practice; OR

2. some other compelling reason for CA to hear (r52.14); AND

3. permission to appeal has been granted

Second appeals to CA

• application

  • coco DJ coco CJ (dismissed) CA

  • HC master / HC DJ HC judge (dismissed) CA

• must seek permission from CA (NOT lower court)

• CA will only give permission if

1. raises important point of principle / practice; OR

2. some other compelling reason for CA to hear (r52.13(2))

TIME FOR APPEALING

General rule

• A must seek permission OR file A's notice within 21 days of date of decision of lower court (r52.4(2)(a))

• lower court may direct other period for filing A's notice (r52.4(2)(a))

Extending time for appealing

• court may extend OR shorten, time for bringing an appeal, even after expiry (r3.1(2)(a))

• parties CANNOT agree to extend time (r52.6(2))

• must apply to appeal court to extend time for filing A's notice by issuing application in the A's notice itself unless apply orally to lower court after decision to be appealed

• failure to seek in A's notice = irregularity - court can cure under relief from sanctions powers (r3.9)

• R can oppose extension orally at any hearing, but if unreasonable, may be ordered to pay costs of application

Permission to appeal out of time + permission to appeal compared

• permission to appeal refused appeal process ends

• permission to appeal out of time refused A can appeal refusal

PROCEDURE ON APPEAL

SUMMARY OF PROCEDURE ON APPEAL

1. [A seeks permission from lower court at hearing]

2. A files + serves A's notice [= seeking permission in writing if NOT sought from lower court]

3. court notifies parties of decision on permission + reasons

4. appeal court may make case management orders

5. R files + serves R's notice + skel (if any)

6. A serves proposed appeal bundle index on R

7. A must complete + file appeal Q + time estimate for appeal

8. A serves skel on R

9. parties agree appeal bundle

10. R files skel (if did NOT file R's notice at (3))

11. hearing date fixed + final bundles + skels filed

APPELLANT: PROCEDURE ON APPEAL

Appellant's notice

• A must

1. file A's notice at appeal court within 21 days of decision / period lower court directs (may be electronic)

1. grounds must specifically ID why decision = wrong / unjust (PD 52C para 5(1))

2. each ground should be stated as appeal on point of law OR fact

3. may include application for:

   1. permission to appeal

   2. permission to appeal out of time

   3. interim remedies in course of appeal

2. service on R

1. must serve ASAP + within 7 days of filing (unless appeal court orders otherwise) (r52.4(3))

3. the hearing

1. A CANNOT rely on matter NOT contained in appeal notice unless court gives permission (r52.11(5))

2. if court does NOT request R's submissions / attendance, costs NOT normally allowed if R does (PD 52B para 8.1)

Appeal bundle

• must lodge with A's notice

• contents:

1. sealed copy of A's notice

2. copy of A's skel

3. relevant SoCs

4. transcript of judgment of lower court (except small claims)

5. only other documents which are relevant to issues in appeal (PD 52C para 27(1))

RESPONDENT: PROCEDURE ON APPEAL

Respondent's notice

• need for R's notice

  • R may file + serve (r52.5(1))

  • R must file + serve if = cross-appeal:

1. asking appeal court for permission to appeal (on same basis as A); OR

2. wishes to ask appeal court to uphold decision of lower court (for reasons different / additional to those given) (r52.5(2))

• filing

  • must file within period lower court directs OR if no direction 14 days after:

1. date R served with A's notice (permission not needed / lower court grants permission); OR

2. date R served with notice that appeal court has given A permission to appeal; OR

3. date R served with notification that application for permission to appeal and appeal itself are to be heard together

• serving

  • must serve on A + other Rs ASAP + within 7 days after filing (unless appeal court orders otherwise)

BOTH: PROCEDURE ON APPEAL

Skeleton argument

• CA = obligatory (PD 52C paras 3, 9 and 13)

• coco / HC = only if complexity justifies / would assist

• should:

1. be self-contained (PD 52A para 5.1)

2. be concise

3. define + confine issues

4. numbered paragraphs

5. x-ref documents in appeal bundle

6. authorities: state proposition of law + ID relevant parts

7. dramatis personae, chronology, glossary = useful

Authorities

• coco - photocopies of reports available at hearing

• HC - provide to head usher by 5.30pm working day before hearing

• CA - file bundles of photocopies of authorities (max 10) at least 7 days before hearing

FRESH EVIDENCE

• appeal court will NOT receive oral evidence OR any evidence before lower court, unless it orders otherwise (r52.11(2))

• interim appeals - may adduce fresh evidence if has been change of circumstances

• appeals from final determinations - fresh evidence allowed if considering OO, evidence:

1. could NOT have been obtained with reasonable diligence for lower court hearing; AND

2. would probably have an important influence on the result; AND

3. was apparently credible (guidelines not strict rules)

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