Appeals: quick guide

A short guide to appeals in the county courts, the High Court and the Court of Appeal.

What is an appeal?

An appeal is the process by which a party (the appellant) seeks to change a judgment or order (or part of a judgment or order) of a lower court or tribunal by bringing it for reconsideration by a higher court.

For:

• A more detailed introduction to appeals, see Practice note, Appeals: an overview (www.practicallaw.com/3-203-8882).

• A quick guide to the procedure for appealing to the Court of Appeal, see Quick guide, Appeals to the Court of Appeal (www.practicallaw.com/2-521-8795).

• A quick guide to the procedure for appealing in the county courts and High Court, see Quick guide, Appeals in the county courts and High Court (www.practicallaw.com/4-521-8836).

• Information regarding the procedure and documents needed for appeals, see Practice notes:

  • Appeals: procedure and documentation: overview (www.practicallaw.com/3-521-4216);

  • Appeals in the county courts and High Court: the old and new regimes compared (www.practicallaw.com/6-521-4267);

  • Appeals to the Court of Appeal: the old and new regimes compared (www.practicallaw.com/4-521-4268);

  • Appeals in the county courts and High Court: procedure and documentation (from 1 October 2012) (www.practicallaw.com/5-521-5880); and

  • Appeals in the Court of Appeal: procedure and documentation (from 1 October 2012) (www.practicallaw.com/3-521-5881).

• Information on appealing a costs decision, see Practice note, Costs appeals (www.practicallaw.com/9-205-5034). (Note that some costs decisions do, and some do not, fall within the ambit of CPR 52.)

Where to appeal

Usually an appeal lies to the next level of judge in the court hierarchy. For the court or judge to which an appeal is to be made in different types of cases, see the destination of appeal tables in Practice Direction (PD) 52A.3.5.

In certain, limited, circumstances it is possible to appeal straight from a county court to the Court of Appeal (Civil Procedure Rule (CPR) 52.14) or from the High Court to the UK Supreme Court. This process is known as "leapfrogging". For more information on this, see Practice note, Appeals to the United Kingdom Supreme Court: leapfrog appeals (www.practicallaw.com/6-422-4121).

When can an appeal be made?

An appeal may only be brought with the court’s permission, except in certain limited circumstances where the appeal relates to the liberty of the appellant (for example, the appeal is against a committal order or a refusal to grant habeas corpus) (CPR 52.3(1)(a)).

What are the grounds of appeal?

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

• Wrong.

• Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(CPR 52.11(3).)

These are known as the grounds of appeal (see Practice note, Appeals: an overview: What are the grounds of appeal? (www.practicallaw.com/3-203-8882)).

Points of caution

• It is vital to be aware of the procedural requirements and time limits relating to appeals. The courts apply them very strictly.

• Parties to an appeal cannot agree between themselves to extend any date or time limit set by the CPR, relevant practice direction or order of the appeal court or the lower court (CPR 52.6(2)).

• In most cases, there is no automatic stay of the order contained in the judgment to be appealed (see CPR 52.7). If a stay is required, you should seek one from the lower court, especially if the carrying out of the order would defeat the benefit of a successful appeal. If the lower court refuses, or is no longer seised of the case, then the application may be made to the appeal court. ("No longer seised of the case" means that the lower court no longer has the conduct of the case and the judge, therefore, no longer has any power over the case.) The appellant's notice (Forms N161 (www.practicallaw.com/3-508-4432) or N164 (www.practicallaw.com/2-518-9378) in respect of a small claim) makes provision for such an application being made to the appeal court.

• Appeals in the county courts, to the High Court and the Court of Appeal all fall within the scope of CPR 52 and the relevant PDs. There is a different regime for appeals to the UK Supreme court, see Practice note, Appeals to the United Kingdom Supreme Court (www.practicallaw.com/6-386-7241).

Where are the court rules?

The main procedure governing all civil appeals in the county courts, the High Court and the Court of Appeal is in CPR 52.

On 1 October 2012, PD 52, which supplemented CPR 52, was replaced by five separate PDs:

• PD 52A: Appeals: general provisions. (www.practicallaw.com/2-521-4429)

• PD 52B: Appeals in the county courts and the High Court. (www.practicallaw.com/8-521-4431)

• PD 52C: Appeals to the Court of Appeal. (www.practicallaw.com/6-521-4432)

• PD 52D: Statutory appeals and appeals subject to special provision. (www.practicallaw.com/2-521-4434)

• PD 52E: Appeals by way of case stated. (www.practicallaw.com/7-521-4436)

The rules and guidance for appeals are primarily found in:

• CPR 52.

• PD 52A and one or more of the other new PDs, if relevant to the type of appeal being brought.

• Forms N161 (www.practicallaw.com/3-508-4432) (the appellant's notice), N164 (www.practicallaw.com/2-518-9378) (the appellant's notice in respect of a small claim) and N162 (www.practicallaw.com/5-508-8226) (the respondent's notice). These forms have court-issued guidance notes that must be taken into account.

• Section 56, Access to Justice Act 1999 and the Access to Justice (Destination of Appeals) Order 2000 (SI 2000/1071) that provide the destinations of appeals in different cases. These general destinations of appeal apply subject to any statutory provision to the contrary (PD 52A.3.1).

What is the procedure for appealing?

For a quick guide to the procedure for appealing:

• To the Court of Appeal, see Quick guide, Appeals to the Court of Appeal (www.practicallaw.com/2-521-8795).

• In the county courts and High Court, see Quick guide, Appeals in the county courts and High Court (www.practicallaw.com/4-521-8836).

For more detailed information on the procedure, see Practice notes:

• Appeals: procedure and documentation: overview (www.practicallaw.com/3-521-4216).

• Appeals in the county courts and High Court: procedure and documentation (from 1 October 2012) (www.practicallaw.com/5-521-5880).

• Appeals in the Court of Appeal: procedure and documentation (from 1 October 2012) (www.practicallaw.com/3-521-5881).

• Appeals in the county courts and High Court: the old and new regimes compared (www.practicallaw.com/6-521-4267).

• Appeals to the Court of Appeal: the old and new regimes compared (www.practicallaw.com/4-521-4268).

Practical points

• Permission to appeal may only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard (CPR 52.3(6); see Practice note, Appeals: an overview: What do you need to show to obtain permission to appeal? (www.practicallaw.com/3-203-8882)).

• The appeal court may:

  • strike out the whole or part of an appeal notice;

  • set aside permission to appeal in whole or in part; or

  • impose or vary conditions upon which an appeal may be brought.

  (CPR 52.9(1); see Practice note, Appeals: an overview: striking out, setting aside or imposing conditions on permission to appeal (www.practicallaw.com/3-203-8882)).

• A second appeal is an application for permission to appeal a decision of the High Court or a county court that was itself made on appeal. Only the Court of Appeal can give permission for a second appeal. It will only allow this in an exceptional case, where the appeal would raise an important point of principle or practice (which has not yet been established) or there is some other compelling reason to hear it. For more information, see Practice note, Appeals: an overview: second appeals (www.practicallaw.com/3-203-8882)).

Appeal hearing

• Every appeal will be limited to a review of the decision of the lower court unless either of the below applies:

  • the court orders otherwise because it considers that it would be in the interests of justice to hold a rehearing; or

  • a practice direction makes different provision for a particular category of appeal.

  (CPR 52.11(1)).

  A review of the lower court's decision is a consideration of the relevant material that was before the court below. It is only in such depth as is necessary for the appeal court to understand the case and to address the criticisms that the appellant has raised. A re-hearing is a deeper examination of the material in the case. This means that the appeal court is to a varying extent placing itself more in the position of the trial judge, rather than simply reviewing the judgment. For more information, see Practice note, Appeals: an overview: review or rehearing? (www.practicallaw.com/3-203-8882)

• Unless it orders otherwise, the appeal court will not receive oral evidence or evidence that was not before the lower court (CPR 52.11(2)). In considering whether to allow such evidence, the appeal court will look at whether the three-fold test in Ladd v Marshall [1954] EWCA Civ 1 is satisfied, and whether there are any other reasons for excluding the evidence. For more information on the evidence allowed on appeal, see Practice note, Appeals: an overview: evidence (www.practicallaw.com/3-203-8882)).

• The appeal court will not allow a party at the appeal hearing to rely on a matter that was not in its appeal notice unless it gives permission (CPR 52.11(5)).

Appeals and costs, Part 36 offers and funding agreements

• The costs rules for appeals are generally the same as for other applications and hearings (see Practice note, Costs: an overview (www.practicallaw.com/7-203-1181) and Practice note, Appeals: an overview; Costs (www.practicallaw.com/3-203-8882) and Costs: protecting certain categories of litigant on appeal.) (www.practicallaw.com/3-203-8882)

• The fact that a Part 36 offer has been made must not be disclosed to any judge in the appeal court until all questions (other than costs) have been determined, unless it is relevant to the substance of the appeal (CPR 52.12(1) and (2)). Therefore, you must remove from the appeal documents any references to a Part 36 offer that has been made. A Part 36 offer made in first instance proceedings will not protect you against the costs of a subsequent appeal, so consider whether to make another Part 36 offer on appeal. (Note that Jackson/civil litigation reforms (www.practicallaw.com/6-525-3094) introduce certain changes to Part 36, most significantly, an additional costs sanction (equivalent to 10% of the value of the claim) payable by defendants who do not accept a claimant's reasonable offer that is not beaten at trial. For more on these changes, see Article, Part 36: the key reforms coming into force in April 2013 (www.practicallaw.com/5-524-0441).)

• If your client retained you under a funding agreement, there is the possibility that it will not cover work done in relation to an appeal. If it does not, you will need to discuss with your client how the cost of this work will be covered.