Civil Appeals Lecture Notes

FROM THE MAGISTRATES’ COURT

Appeals from the magistrates’ court in family proceedings lie to the Family Division of the High Court (s61 and sch.1 Supreme Court Act 1981).

Appeals from the magistrates’ court in licensing matters go to the Crown Court (s8 Courts Act 1971 and s45 Supreme Court Act 1981).

FROM THE COUNTY COURTS SMALL CLAIMS

Appeal’s against the district judge’s decision can only be made if there was a serious irregularity in the proceedings or the district judge made a mistake of law. The application for appeal will be referred to a Circuit Judge who may either dismiss the appeal or order that it be listed for hearing. The appeal itself will be heard by a Circuit Judge.

TO THE COURT OF APPEAL

The CPR Part 52 altered the appellate procedure in May 2000.

An appellant requires permission to appeal where the appeal is from a decision of a judge in a county court or the High Court. 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 Court of Appeal. Where the lower court refuses an application for permission to appeal, a further application may be made to the Court of Appeal. Permission to appeal will only be given where (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard (CPR 52.3).

The Court of Appeal will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court (CPR 52.11).

Procedure in the Court of Appeal

An appeal before the Court of Appeal, civil division, is normally heard by three judges sitting together, although any uneven number of judges not less than three (eg, five or seven) will suffice. However, in the interests of the economic and efficient use of judicial time, certain appeals and applications may be heard by only two judges.

The hearing of an appeal by the Court of Appeal is not a retrial. The appeal is determined after reading the documents in the case and hearing counsel’s arguments. In the civil division where the court consists of an uneven number of judges, the majority decision prevails. Each judge is entitled to deliver his own separate judgment.

Powers of the Court of Appeal

In relation to an appeal the Court of Appeal has all the powers of the lower court (CPR 52.10).

The Court of Appeal has 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; or (e) make a costs order. In an appeal from a claim tried with a jury the Court of Appeal may, instead of ordering a new trial (a) make an order for damages; or (b) vary an award of damages made by the jury.

FROM THE HIGH COURT

A) TO THE COURT OF APPEAL

Appeals from all three divisions of the High Court in civil cases lie to the Court of Appeal, civil division. The procedure is contained in the CPR Part 52 (see above, under County Courts).

B) TO THE HOUSE OF LORDS (THE LEAPFROG PROCEDURE)

There is a procedure for missing out, or “leapfrogging”, the Court of Appeal so as to enable an appeal to be taken from the High Court direct to the House of Lords (ss12-15 Administration of Justice Act 1969). The procedure is little used. The conditions which must be satisfied before such a direct appeal can be taken are that:

(a) the trial judge has granted a certificate of satisfaction, and
(b) the House of Lords has given leave to appeal.

A trial judge can only grant a certificate if all the parties consent and the case involves a point of law of general public importance which is either concerned wholly or mainly with the construction of a statute or of a statutory instrument, or is one where the trial judge is bound by a previous decision of the Court of Appeal or the House of Lords. The granting of a certificate by the trial judge is discretionary. No appeal is possible against the granting or refusal of a certificate.

Appeals direct from the High Court to the House of Lords are rare.

Procedure in the House of Lords

Every appeal to the House of Lords must be heard by at least three judges. In practice, five of them usually sit together to form a court, or seven for very important cases. Each judge may deliver his own separate judgment, called a “speech” or “opinion” in the House of Lords. The hearing of the appeal is not a retrial. No oral evidence is given; the judges read all the documents in the case and listen to counsel’s arguments. The majority decision prevails.

The House is usually very reluctant to interfere with a trial judge’s exercise of discretion, save in those cases where the judge is demonstrably wrong either in the light of further evidence, change of circumstances, or in point of law.

Any orders made are, technically, High Court orders, as the House has no machinery for enforcement.

FROM THE COURT OF APPEAL

An appeal may be taken from the Court of Appeal to the House of Lords. Leave of either court is required (s1(1) Administration of Justice (Appeals) Act 1934).

If the Court of Appeal refuses leave to appeal, a party may nevertheless apply to the Appeal Committee of the House of Lords for leave to appeal. The Appeal Committee considers, in private, petitions to the House for leave to appeal. Each petition must be heard by at least three judges.

A civil appeal is usually taken to the House of Lords on a question of law, although the appeal can be on a question of fact, such as the quantum of damages. In a civil appeal to the House of Lords which involves a question of law, there is no statutory requirement that the question must necessarily be one of general public importance, although as a matter of practice, leave to appeal is liable to be refused by the Appeal Committee if the petition does not raise an “arguable point of law of general public importance“.