22 Appeals

Question 1

Lower court CC DJ APPEAL COURT?

Answer 1

Appeal court CC Circuit Judge

Question 2

Lower court HC Master APPEAL COURT?

Answer 2

Appeal court HC Judge

Question 3

Lower court CC Judge APPEAL COURT?

Answer 3

Appeal court HC Judge

Question 4

Lower court HC Judge APPEAL COURT?

Answer 4

Appeal court CA

Question 5

Lower court CA APPEAL COURT

Answer 5

Appeal court Supreme Court

Question 6

Insolvency appeal routes

Court Deciding: County Court

Who is the Deciding jUdge?

Answer 6

DJ or CJ

At the high court

Question 7

Court Deciding = highH COURT

Answer 7

Registrar or HCJ

Question 8

Court Deciding judge Decision under appeal Destination === IPEC

Answer 8

IPEC District Judge Any Enterprise Judge IPEC Enterprise Judge Any Court of Appeal

Question 9

Court Deciding judge Destination Insolvency Appeal Routes COUNTY COURT

Answer 9

County Court DJ or CJ HCJ

Question 10

What is the exception to basic appeal routes

Answer 10

1) Second appeals

Second appeals = appeal route ALWAYS CA.

Permission to bring second appeal: more onerous test.

What is a second appeal?

Example: Interim application is made to the CC DJ First appeal is to the CC CJ (the usual route of appeal) Any further appeal from CC CJ goes to CA (being a second appeal)

Question 11

Is permission required for appeal?

Answer 11

PERMISSION TO APPEAL

NORM permission required – 4 exceptions (3 where A in custody) + 1 on costs assessments.

Question 12

What is the test for FIRST appeals?

Answer 12

TEST for first appeals= Permission to appeal given where:

1. Appeal has real prospect of success; or
2. Some other compelling reason

Real prospect of success = MUST be realistic NOT fanciful.

Question 13

Procedure for permission to appeal

Answer 13

Different procedure depending if appeal to:

• CC or HC;
• CA

Question 14

Procedure on appeals to CC or HC

Answer 14

Permission:

1. May initially be made ORALLY to lower court at hearing.
2. Made in appeal notice to appeal court
3. Where lower court refuses permission – further app made to appeal court (appeal notice), and determined on paper without an oral hearing.
4. If appeal court refuses on paper, A may request decision within 7 days of being served with notice of refusal to be reconsidered @ oral hearing.

Court notifies R of oral hearing, R NOT expected to attend unless directed.

Question 15

What happens if appeal court refuses appeal on paper?

Answer 15

A may request decision within 7 days of being served with notice of refusal to be reconsidered @ oral hearing.

Question 16

Procedure on appeals to CA

Answer 16

Permission:

1. Made ORALLY to lower court at hearing
2. Made in appeal notice to appeal court
3. CA norm determines app on the papers.
4. If CA judge thinks it cannot fairly be determined on papers, MAY make direction app be determined @ oral hearing:
   
   1. Direction MAY identify issues A should focus its submissions
   2. Direction MAY require R to file + serve written submissions;
   3. MAY require R to attend oral hearing

Question 17

What happens if there is an oral hearing for permission to appeal

IN THE CA.

Answer 17

Oral hearing for permission to appeal in CA MUST be listed no later than 14 days from date of direction + heard by judge making direction

Question 18

Test for granting permission to appeal on second appeals

Answer 18

Permission to make second appeal ONLY be sought from the CA.

Permission for second appeal will only be granted if –

1. Appeal raised prospect of success; AND
2. Raises an important point of principle or practice; OR
3. Some other compelling reason

• This applies both where the appellant:

1. Lost both at the initial hearing and on the appeal to the CC CJ
2. Won at the initial hearing, but lost the appeal to the CC CJ

Question 19

Permission for second appeal TEST

Answer 19

Permission for second appeal will only be granted if –

• Appeal raised prospect of success; AND
• Raises an important point of principle or practice; OR
• Some other compelling reason

Question 20

TIME LIMIT for appeal

Answer 20

21 days from date of decision of lower court.

Question 21

Variation of time limit for appeal

Answer 21

= Apps to extend 21 day period made in appellant’s notice.

Extensions CANNOT be agreed between parties

Apps for extensions of time are considered applying principles on relief from sanctions (Denton v White).

Question 22

Appellant’s Skeleton argument required for appeal?

Answer 22

Reasons why decision under appeal is wrong or unjust must NOT be included in grounds of appeal + MUST be confined to SA.

Question 23

In CA, Skeleton Argument MUST:

Answer 23

• Not norm exceed 25 pages;
• Be on A4, not less than 12-point fond, 1.5 line spacing

Question 24

All Skeleton Arguments MUST:

Answer 24

1. Be concise
2. Both define + confine areas of controversy
3. Be set out in numbered paras
4. Be cross-referenced to any relevant docs in bundle
5. Be self-contained + not incorporate by ref materials from previous SA
6. Not include extensive quotations.

Question 25

Where necessary to refer to authority, a Skeleton Argument MUST:

Answer 25

1. State proposition of law the authority demonstrates; and 2. Identify parts of authority that support the proposition If more than one authority cited in support of proportion, SA MUST briefly state why.

Question 26

**_What are the grounds of appeal?_**

Answer 26

*Grounds of appeal =* MUST set out grounds of appeal. This MUST identify concisely the judgment of court below was either: 1. Wrong; or 2. Unjust because of a **serious procedural** or **other irregularity**

Question 27

Where A seeks permission to appeal. what MUST be stated in appelllant's notice.

Answer 27

That A seeks permission to appeal,

Question 28

Applications within appeals

Answer 28

interim apps within appeals MAY be made either including them in appellant’s notice, or by issuing separate Part 23 notice of app.

Question 29

Apps to Extend time to appeal =

Answer 29

Can be made by including the app in appellant’s notice or separately.

Question 30

What is an appellant's notice

Answer 30

Apellant's Notice (and order granting permission) defines appeal issues = Party may NOT rely on issue not contained in that party’s appeal notice unless permission granted.

Question 31

Can you amend an appellant's notice?

Answer 31

Amendment of AN = ONLY be amended with permission. A MUST file appellant’s notice **within 21 days** after decision of lower court + MUST serve it on parties within **7 days of being filed.**

Question 32

What are the time limites for appellant's notice

Answer 32

A MUST file appellant’s notice within 21 days after decision of lower court + MUST serve it on parties within 7 days of being filed.

Question 33

Is a Respondent's Notice required for appeals?

Answer 33

**Respondent’s Notice** IS REQUIRED **unless R is simply relying on reasons of court below**. Where R counter-appeals = R MUST have permission to appeal.

Question 34

Where the Respondent counter appeals, the Respondent's notice must:

Answer 34

R’s notice MUST be filed **14 days after date:** 1. R served with appellant’s notice where 1. Permission given by lower court; 2. Permission to appeal not required 2. Date R was notified A got permission; 3. Date R served notification app for permission + appeal heard together Respondent’s Notice MUST be served **7 days after** filed.

Question 35

**_what isn an APPEAL HEARING_**

Answer 35

It is a REVIEW, not rehearing. Every appeal will be **limited to REVIEW** of decision of lower court – UNLESS 1. PD makes different; or 2. Court considers it would be **in the interests of justice to hold a re-hearing**.

Question 36

Every appeal will be **limited to REVIEW** of decision of lower court – UNLESS

Answer 36

1. PD makes different; or 2. Court considers it would be **in the interests of justice to hold a re-hearing**.

Question 37

_EXCEPTIONS where appeal is by Rehearing NOT Review_

Answer 37

**Gen rule** = all appeals by review. Undesirable to attempt to formulate criteria. Material to consider if the alleged lower court’s decision is unjust because of **serious** procedural or other irregularity. To have rehearing not review, some injustice MUST have occurred. _Asking lower court for reasons + none given or reasons so inadequate._

Question 38

_Grounds for allowing appeal_

Answer 38

1. Wrong 2. Unjust through some serious procedural or other irregularity

Question 39

_Review v Rehearing_

Answer 39

**Review involves =** looking @ docs seen by lower court + asking is something is seriously wrong. On review = appropriate respect given to lower court’s decision. Very difficult to overturn lower court’s decision if based on exercise of discretion. **Rehearing** = appeal court consider material afresh + makes own decision. Power to receive fresh evidence applies on review + rehearings.

Question 40

Review is NOT

Answer 40

judicial review. Rehearing appropriate if judge’s decision so inadequately reasoned losing party doesn’t know why it lost

Question 41

**_Is FRESH EVIDENCE allowed?_**

Answer 41

Appeals = reviews, so norm rule = only look at material before lower court. **_Basic rule:_** deploy whole case @ first instance. Cannot bring extra material on appeal. Appeal courts MAY allow fresh evidence. **_"special grounds”_** required before fresh evid admitted. Due regard given for finality. Court considers *proportionality* in costs of investigating point.

Question 42

**_TRANSCRIPTS_** Except where claim allocated to **SMALL CLAIMS TRACK**, appellant MUST obtain transcript or other record of reasons of lower court -

Answer 42

Transcript of judgment gen required. Except where claim allocated to **SMALL CLAIMS TRACK**, appellant MUST obtain transcript or other record of reasons of lower court – 1. Where judgment officially recorded, A MUST apply for approved transcript within **7 days** of filing AN; 2. Where judgment under appeal been handed down in writing, A MUST obtain + retain copy 3. Other case = A MUST cause a note of judgment under appeal to be made + types. Parties agree note -) sent to judge for approval. Parties have duty to make + co-operate in agreeing a note of judgment.

Question 43

TRANSCRIPTS Except where claim allocated to ___________ appellant MUST obtain transcript or other record of reasons of lower court –

Answer 43

SMALL CLAIMS TRACK,

Question 44

Lower court/ appeal court MAY direct transcript obtained @ public expense if: 1.

Answer 44

1. A qualifies for fee remission; and 2. Necessary in interests of justice.

Question 45

NOT PRIMARY RULES but relevant consideration for fresh evidence:

Answer 45

1. Evidence couldn’t have been **obtained with reasonable diligence** 2. Evidence would have **important influence** on result (doesn’t need to be decisive) 3. Evidence **credible** On appeal from interim decision = fresh evidence MAY be permitted if material change of circumstances. Evidence of changed circumstances should only be sparingly admitted.

Question 46

**_APPEAL COURT POWERS =_** What are their powers?

Answer 46

MAY draw inference of facts which is justified on evid. Appeal court has ALL powers of lower court. Appeal court has power to: 1. Affirm, set aside, vary order/judgment 2. Refer any claim/issue for determination by lower court 3. Order new trial or hearing 4. Make orders for payment of interest 5. Make a costs order Appeal court MAY exercise decision to whole/part of order of lower court.

Question 47

Can you have a collateal attack on interim decisions?

Answer 47

Interim appeals MUST be respected = Cannot have a collateral attack on interim decision.

Question 48

**_APPEAL TOTALLY WITHOUT MERIT_**

Answer 48

If appeal court: 1. refuses permission; 2. strike out appellant’s notice; or 3. dismisses appeal AND considers app, appellant’s notice or appeal **totally without merits,** then: 1. Court’s order MUST record that fact; AND 2. At same time, consider whether to make a **civil restraint order**.

Question 49

Don’t need permission to appeal where:

Answer 49

1. liberty of subject is in issue. OR 2. appeal from decision in detailed assessment proceedings to costs judge or District Judge.

Question 50

When does judgment take effect?

Answer 50

Judgment takes effect from day it was given. Judgment for money MUST be complied with within 14 days of judgment

Question 51

For PI cases, can the court make provisional damages?

Answer 51

yes But PoC MUST include a claim for this.

Question 52

Who normally draws up the order?

Answer 52

Normally the court will draw up the order but: * In the QBD, TCC and Commercial Court, orders are norm drawn up by the parties. Elsewhere it is norm done by court.

Question 53

Every order MUST state:

Answer 53

name + judicial title of judge who made it. Party required to draw up judgment allowed **7 days to file document with copies.**

Question 54

TOMLIN ORDERS

Answer 54

**Tomlin orders =** Proceedings stayed on agreed terms scheduled to order.

Question 55

For Tomlin orders, what are schedule terms?

Answer 55

Schedule terms NOT part of order + cannot be enforced as order. SO no money judgment can be enforced + cannot carry statutory interest. Terms not enforceable without further order. Terms not for approval by judge. Judge WILL approve order itself though, i.e.: 1. Proceedings are stayed 2. Payment of monies payed into court 3. For costs for be assessed. Tomlin order contains binding contract. Thus **6 year time limit applies**. Settlement in Tomlin order is a commercial instrument. If terms too vague = court will decline to enforce them under “permission to apply” provision of order. Parties can include in schedule which court couldn’t have ordered + which goes beyond dispute itself.