As part of a recent EU project, Marc Willers has produced this rough guide to the Civil Appeal System in England and Wales.
1. Civil Justice in England and Wales
1.1 In England and Wales civil justice is administered mainly by judges who sit in local civil courts, known as County Courts or by judges sitting in the High Court and is governed by the Civil Procedure Rules (CPRs), Statute and the doctrine of precedent.
1.2 The High Court is divided into three main Divisions: the Chancery Division, the Family Division and the Queen’s Bench Division:
• The core business of the Chancery Division is the resolution of disputes involving property in all its forms, including commercial, business and intellectual property, competition disputes, taxation and its work relating to companies, partnerships, mortgages, insolvency land and trusts.
• The Family Division deals with the most serious family cases and also with matters relating to probate.
• The Queen’s Bench Division deals mainly with civil actions in contract and tort (civil wrongs) and also hears more specialist cases including applications for judicial review of decisions made by public bodies.
2. Judicial Review
2.1 Applications for judicial review of decisions taken by public authorities are heard by specialist High Court Judges sitting in the Queen’s Bench Division, in what is known as the Administrative Court. Judicial review procedure is laid down in the CPRs:
• Applicants must obtain permission to seek judicial review and will only do so if they satisfy the Court that the application is arguable.
• An appeal against the refusal of permission can be made to the Court of Appeal.
• Generally, a substantive case is likely to involve an allegation of illegality or irrationality or procedural impropriety and/or an allegation that the decision challenged breaches a right protected by the European Convention on Human Rights.
• An appeal lies to the Court of Appeal against the substantive decision to grant or refuse a claim for judicial review.
3. The Tribunal System
3.1 In 2008 the First-tier Tribunal (FTT) and Upper Tribunal (UT) were created to cater for a variety of appeals from decisions taken by public authorities and regulatory bodies which are not determined by the Administrative Court. They were formed in order to create a coherent system and structure with consistent rules of procedure and to ensure a common approach was taken in cases before tribunals.
• The FTT is divided into six Chambers – the General Regulatory Chamber, the Health, Education and Social Care Chamber, the Immigration and Asylum Chamber, the Social entitlement Chamber, the Tax Chamber and the War Pensions and Armed forces Compensation Chamber.
• The UT is organised into four Chambers – the Administrative Appeals Chamber, the Immigration and Asylum Chamber of the UT, the Tax and Chancery Chamber and the Lands Chamber
• Appeals to the FTT are on facts and/or law.
• Usually, appeals against decisions made by the FTT are to the UT on a point of law.
• Second appeals can be heard by the Court of Appeal subject to the rules relating to second appeals.
• However, some tribunals remain outside the system, such as the Employment Tribunal (ET).
• Appeals from the ET are heard by the Employment Appeal Tribunal (EAT). A second appeal from the EAT can be made to the Court of Appeal.
4. The Civil Appeals System
4.1 The civil appeal system in England and Wales can be summarised as follows:
• Appeals against first instance decisions in civil cases made by the lowest level judges (district judges) who sit in local civil courts, known as County Courts, are made to the next level of judge, the circuit judges (who also sit in the County Courts).
• Appeals against first instance decisions of circuit judges are made to High Court Judges sitting in the Royal Courts of Justice in London (and other regional centres).
• Appeals against decisions made by circuit judges determining appeals (second appeals) should be made to the Court of Appeal.
• Appeals against first instance decisions of High Court judges in civil and judicial review (administrative law) cases are made to the Court of Appeal Civil Division and are usually heard in the Royal Courts of Justice in London.
• Appeals against decisions made by the UT and EAT are made to the Court of Appeal Civil Division.
• A second appeal can only be considered by the Court of Appeal and permission for a second appeal will not be granted unless
– The appeal would raise an important point of principle or practice; or
– There is some other compelling reason for the Court of Appeal to hear it.
• Appeals against decisions of the Court of Appeal are considered by the Supreme Court (formerly the House of Lords) which sits in London.
• Occasionally, appeals against first instance decisions of High Court judges in civil cases are made directly to the Supreme Court (‘leapfrog appeals’) rather than to the Court of Appeal.
• There is a final avenue of appeal in a case concerning a right protected by the European Convention on Human Rights once all domestic remedies have been exhausted; an application can be made to the European Court of Human Rights in Strasbourg, providing it is made within six months of the final decision made in the domestic Courts.
5. Appeal statistics
5.1 There are 12 Supreme Court Justices, 40 Lord Justices of Appeal (sitting in the Court of Appeal) and 108 High Court Judges. In 2011:
• The Supreme Court disposed of 174 applications for permission to appeal against decisions in civil cases made in England and Wales and granted permission in 49 of those cases (171 of the applications related to decisions of the Court of Appeal) and it determined 58 civil appeals, allowing 33 of them.
• The Court of Appeal Civil Division disposed of 1,263 appeals, allowing 520 and dismissing 475 of them (199 of those appeals were from decisions made in the Administrative Court).
6. Appeals and the Overriding Objective
6.1 Civil procedure (including that relating to appeals) in England and Wales is subject to the ‘overriding objective’ which is set out in Part 1.1 of the CPRs:
1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable—
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate—
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
7. Appeal Procedure and the Formalities
7.1 Appeal procedure is governed by Part 52 of the CPRs which should be applied and interpreted in accordance with the overriding objective. Part 52 of the CPRs lays down the procedure applicable to appeals to be heard in the County Court, High Court and the Court of Appeal Civil Division.
7.2 In summary:
• Generally, permission to appeal is required (other than in cases relating to committal to prison for contempt of Court and habeus corpus cases).
• An application for permission can be made to the lower Court or Tribunal or to the relevant appeal Court in an Appellant’s Notice. Where the lower Court or tribunal refuses the application for permission it can be renewed before the appeal Court.
• Permission to appeal may 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 (for example, so that the law on a particular issue can be clarified).
• An order giving permission may limit the issues to be heard or be made subject to conditions.
• An Appellant’s Notice must be filed within 21 days of the date of the decision of the lower Court or Tribunal to be appealed.
• The appeal Court has the power to grant an extension of time for filing an Appellant’s Notice.
• A respondent to an appeal may file a Respondent’s Notice within 14 days of being served with the Appellant’s Notice and must do in circumstances where permission is sought to appeal against the lower Court’s decision on any point or where the appeal Court is to be asked to uphold the order of the lower Court or Tribunal for reasons different from or additional to those given by the lower Court or Tribunal.
• The appeal Court may order that the appeal shall operate as a stay of the order or decision made by the lower Court or Tribunal – having had regard to all the circumstances of the case.
• An Appellant’s Notice may be amended but only with the permission of the appeal Court.
8. Supreme Court procedure
8.1 The Supreme Court procedure is set out in the Rules of the Supreme Court 2009.
• Other than in leapfrog appeals, an appeal may only be made to the Supreme Court with the permission of the Court of Appeal or the Supreme Court. An application must first be made to the Court of Appeal. If that application is refused then an application should be made to the Supreme Court.
• In the case of leapfrog appeals from the High Court to the Supreme Court, the High Court must issue a certificate stating that the case meets certain conditions and that a sufficient case has been made out to justify an application for permission to appeal to the Supreme Court. An application must then be made to the Supreme Court for permission to appeal.
• An application for permission to appeal to the Supreme Court must be filed within 28 days of the date of the order of the lower Court (or in the case of a leapfrog appeal within 28 days of the date of the certificate).
• An application can be refused if it contains no reasonable grounds or if it constitutes an abuse of process.
• Applications are normally considered on the papers by a panel of Justices.
• The principles applied by the Supreme Court when determining the substantive appeal are the same as those applied by other appeal Courts
9. Hearing of Appeals
9.1 Every appeal will be limited to a review of the decision of the lower Court of tribunal unless
a) A practice direction requires otherwise;
b) The Court considers that in the circumstances of the appeal it would be in the interests of justice to hold a re-hearing.
9.2 At the appeal hearing an appellant may not rely on a matter not contained in his Appellant’s Notice unless the Court gives permission.
9.3 Unless the Court directs otherwise, it will not receive oral evidence or evidence which was not before the lower Court of Tribunal. Any order for fresh evidence must be made in light of the overriding objective of doing justice to the case. In addition the Court will consider the following:
• Whether the evidence could have been obtained with reasonable diligence for use at the trial.
• Whether the evidence would have an important influence on the result of the case, though it need not be decisive.
• Whether the evidence is credible, though it need not be incontrovertible.
9.4 The appeal Court has the power to:
• Affirm, set aside or vary any order or judgment made or given by the lower Court or Tribunal;
• Refer any claim or issue for determination by the lower Court or Tribunal;
• Order a new trial or hearing;
• Make orders for the payment of interest; and
• Make a costs order.
9.5 A new trial may be ordered where fresh evidence is discovered. The appeal Court will allow an appeal where the decision of the lower Court was;
a) Wrong (that is, in law or in fact or on the grounds that the judge erred in the exercise of his or her discretion); or
b) Unjust, because of a serious procedural or other irregularity in the proceedings in the lower Court.
9.6 Errors of law include circumstances in which a lower Court has erred:
• When interpreting and application a statute or policy
• By failing to give any or any adequate reason for his decision.
9.7 Appeals against findings of fact will only be allowed in exceptional circumstances – given that the appeal Court will not have had the chance to make an assessment of the credibility and reliability of witnesses.
9.9 Appeals against decisions relating to the exercise of a judge’s discretion are unlikely to succeed unless it can be shown that the judge had:
• Misunderstood the facts
• Taken account of irrelevant matters;
• In fact failed to exercise the discretion; or
• Made a decision that no reasonable judge could have made or one which there was no material before him to justify.
9.10 An appeal will not be allowed on grounds of a procedural or other irregularity unless it is serious and one which must have caused the decision of the lower Court to be unjust.
Marc Willers ©
21 October 2013