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Appeal Process

View profile for Mark Holloway
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Appeal Process – Practice Note

 

CPR 52 and practice direction 52A to 52E cover the appeal process in the civil division of the Court of Appeal, High Court, and County Court. The only exception is following a Detailed Assessment undertaken by an authorised costs officer, this is covered by CPR 47.21 to 47.24 and CPR 47 PD 20.1 to 20.6.

 

Appeals from Authorised Court Officers in Detailed Assessment Proceedings

 

The key difference between the provisions under CPR 52 and CPR 47 is that there is no requirement to obtain permission to appeal when seeking to appeal a decision by an authorised costs officer.

An appeal notice (Form N161) must be filed within 21 days after the date of the decision against which it is sought to appeal. The appeal will be heard by a costs judge or district judge of the High Court.

On the appeal the court officer will re-hear the proceedings which gave rise to the decision being appealed against and make any order or directions as appropriate.

N.B. It is important to note that, where the costs are provisionally assessed, an oral hearing must be requested in the first instance. It is the decisions from the oral hearing that are capable of being appealed - PME v The Scout Association [2019] EWHC 3421 (QB)

 

CPR 52.3 - Permission to Appeal

(2) An application for permission to appeal may be made—

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

 

N.B see CPR 52 PD 4.1.

Permission for appeal should be requested at the hearing, if a party requires more time to consider making the application for permission to appeal the court can adjourn the hearing or part of the hearing in order for an application to be made at a later date - CPR PD 52A, para 4.1(a).

If no request for permission to appeal is made at the hearing and the hearing is not adjourned, the lower court is no longer able to grant permission to appeal, as it no longer has jurisdiction, and the application for permission to appeal must be made with the appeal notice - Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470. The application must be made using from N161.

If the hearing is adjourned the judge will normally provide directions. It is important that the adjournment is dealt with quickly as the 21 day period for filing an appeal notice (CPR 52.12(2)(b)) is not automatically extended - R (Hysaj) v SSHD [2014] EWCA Civ 1633. When seeking an adjournment it is therefore important that permission is sought for an extension of time for service of the appeal notice - CPR 52.12(2)(a).

The application for permission to appeal will be heard on paper unless the court orders otherwise- CPR 52.4 and CPR 52.5. In the lower courts, if the application is refused on paper, the party seeking permission may request the decision be reconsidered at an oral hearing. However, in the lower appeal court, if a judge refuses permission to appeal without an oral hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision be reconsidered at an oral hearing, CPR 52.4(3).

 

Granting Permission to Appeal

 

First Appeal – CPR 52.6

(1) Except where rule 52.7 applies, permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason for the appeal to be heard.

(2) An order giving permission under this rule or under rule 52.7 may—

(a) limit the issues to be heard; and

(b) be made subject to conditions.

 

The test for whether the appeal would have real prospects of success, does not mean the appeal will be successful it ‘merely means a more than fanciful prospect of succeeding, or whether there is some other compelling reason for giving permission to appeal’ - Kingley Developments v L Brudenell [2015] EWCA Civ 823.

 

Jemai v Otkkritie International Investment Management Ltd [2015] EWCA Civ 766

Obvious errors in the judgment in relation to the defendant and the judge’s analysis of the evidence in so far as it affected the defendant, overcame the hurdle that the court of appeal will not normally entertain appeals based on challenges to careful findings of fact by a judge after a lengthy trial where the judge has had the opportunity of seeing the witnesses and considering their evidence. Permission was granted.

 

Barton v Wright Hassall Solicitors LLP [2015] EWCA Civ 757

The court granted permission to appeal on the basis that as there were two recent authorities that supported the relaxation of the rules re service and that there was reasonable prospects of success on appeal.

 

Second Appeal – CPR 52.7

(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal, or a decision of the Upper Tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.

(2) The Court of Appeal will not give permission unless it considers that—

(a) the appeal would—

(i) have a real prospect of success; and

(ii) raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it.

 

A compelling reason may be where the law needs clarifying, or it is a test case in the public interest. For example, in Rogers v Merthyr Tydfll [2006] EWCA Civ 701 permission was given on the basis of “public interest in the Court of Appeal determining the issues in this case at a reasonably early date”.

The test for a second appeal is to be considered a high hurdle - Holton v Bupa Care Homes (CFH Care) [2015] EWCA Civ 825.

 

Appeal Notice

 

CPR 52.12

The appeal notice must be filed within 21 days of the decision of the lower court unless otherwise directed. The appeal notice must be served no later than 7 days after it is filed.

When filing the appeal notice it should contain with it any application being made e.g. a stay in the detailed assessment proceedings.

 

Grounds of Appeal

 

When filing the appeal notice it must set out in clear language the grounds of appeal i.e. why the order of the lower court was wrong or unjust because of a serious procedural or other irregularity (CPR 52.21(3)).

 

An appeal can be made in respect of:

· An error of law

· Findings of fact

· A judgment based on fraud

· Case management decisions

· Costs orders

· A decision made on appeal

 

This is not an exhaustive list.

 

Hearing of Appeals

 

CPR 52.21

Every appeal will be limited to a review of the decisions of the lower court, unless otherwise ordered. The appeal court will not receive oral evidence or new evidence unless it orders otherwise. At the appeal hearing a party may not rely on a matter not contained in the party’s notice unless the court gives permission. When considering the grounds of the appeal the court will only allow the appeal if it can be shown the lower court wrong or unjust because of a serious procedural or other irregularity.

 

The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong (i.e. an error of law or fact or where a Judge has exceeded the generous amount of their discretion); or

Deepchand and another v Sooben [2020] EWCA Civ 1409

In the original proceedings the respondent had made an application for a non-party costs order. The court found that as the issues could not be determined proportionately it could not be heard. As there was no successful party and the outcome neutral the court ordered that there be no order for costs. The appellant appealed this decision and sought an order for costs on the basis that the respondent had sought a non-party costs order in the sum of £50,000.00 and had failed to achieve the same and was therefore the unsuccessful party. On appeal the court agreed that the respondent was the unsuccessful party and ordered the appellant their costs of the application.

 

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

JH v MF [2020] EWHC 86 (Fam)

In the original proceedings the judge had failed to make the required allowances for a vulnerable witness instead requiring the appellant to give evidence from counsel’s row. The respondent was also allowed assistance from his McKenzie friend while giving witness evidence, which is prohibited. The judge also made finding on matters which were not put to the appellant during the hearing and did not form part of the respondent’s cases. There were a myriad of other serious procedural or other irregularities during the hearing leaving the court on appeal to order a re-trial.

 

The Appeal Court’s Powers

 

CPR 52.20

The appeal court has all of the same powers of the lower court. The appeal 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.

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