Appeals Flashcards
(32 cards)
What is meant by destination (or route) of an appeal?
Which court/judge will hear the appeal
NB distinguish ‘appeal court’ from ‘Court of Appeal’
What must the lower court’s decision be for the appeal court to allow an appeal?
- Wrong; or
- Unjust because of a serious proedural or other irregularity in proceedings
Will appeals re-hear or merely review the lower court’s decision?
Normally only review
What evidence will the appeal court usually have access to?
- The evidence and representations heard by the lower court
- No access to any new evidence and cannot hear/examine evidence ‘live’ as lower court has done
COURT HAS DISCRETION HERE
How can a lower court’s decision be ‘wrong’?
Due to either:
- An error of law
- An error of fact
- An error in the exercise of the court’s discretion
When the decision was primarily based on the assessment of evidence (which the appeal court is unable to conduct), what will the approach of the appeal court be?
Will be reluctant to declare lower court’s decision wrong
Does not have access to same evidence lower court did
E.g. appeal court cannot consider the credibility of a witness whereas the lower court did = appeal court’s interference may be inappropriate
How can a lower court’s decision be ‘unjust’?
Must have been a serious irregularity causing the lower court’s decision to be unjust
E.g. …
* Party not given chance to make submissions
* Lower court judge involved in previous proceedings
* The manner in which the judge handled the evidence
Can a decision be ‘unjust’ even if the lower court’s decision was not wrong?
Yes
When will permission to appeal be granted by the court?
(Not location)
Where the court considers:
- Appeal has a real prospect of success
- There is another compelling reason why appeal should be heard
When can an appellant apply for permission to appeal? And in what form is this done?
- At the lower court at the time the decision (to be appealed) is made - done orally
- To the appeal court - done in writing using appellant’s notice usually with no hearing
How long does the appellant have to make an application to the appeal court after lower court’s decision?
Within 21 days
Does applying for permission from the lower court prevent an application to the appeal court?
No (even if unsuccessful at lower court)
Why would an appellant choose one time to apply for permission to appeal over another?
- Lower court - saves time for court and parties, saves costs
- Appeal court - more time to prepare application and can apply anyway
How is an application for permission dealt with where the appeal court is the County or High Court and it has refused paper application?
Appellant may request the decision be reconsidered at oral hearing (the decision of which cannot be appealed)
I.e. if permission is refused at the oral hearing, no appeal against that decision is possible
How long does the appellant have to request decision is reconsidered at an oral hearing after their paper application is refused?
Where appeal court is County/High Court
7 days after service of the notice refusing permission
How is an application for permission dealt with where the appeal court is the Court of Appeal?
Applications for permission will be determined on papers alone unless judge considers matter should be dealt with orally (at hearing)
Why would a judge direct a hearing takes place for an appeal to the Court of Appeal?
(Rather than just determined on papers)
The judges have a duty to direct a hearing takes place if they are of the opinion that they ‘cannot fairly determine’ the application on the papers alone
When will an oral hearing be listed for permission to appeal to the Court of Appeal?
Within 14 days
When must an appeal/application for permission be made and what is the application called?
Within 21 days of the decision of the lower court - called the ‘Appellant’s notice’ (form N161)
Can apply for extension if it has a good reason for seeking longer period in which to appeal
From when do judgements and orders take effect? What is the effect in formally drawing up a judgement after it is made?
I.e. when does the clock start running for time to appeal
From the date they are given/made (even if a delay in formally drawing up judgement!)
What is the difference between a first appeal and a second appeal?
- First appeal = appeal against first court who has made the decision
- Second appeal = appeals of the decision made on the first appeal of the lower court’s decision (i.e. do not like the judgement that came from appeal, not that appeal was rejected)
What is the test for permission on the first appeal?
Usual test: real prospect of success or other compelling reason
What is the test for permission on the second appeal?
- Appeal would have a real prospect of success and raise an important point of principle or practice or
- There is some other compelling reason for CoA to hear it
What two functions does the appellant’s notice have?
Requests permission and initiates the appeal itself (where permission granted)
