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Appeals Notes

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This is an extract of our Appeals document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.

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APPEALS, CPR 52

52.1, Scope and interpretation
-(1) The rules in this Part apply to appeals to:
o (a) the civil division of the CA;
o (b) the High Court; and

(c) the County Court.
-(2) This party does not apply to an appeal in detailed assessment proceedings against a decision of an authorised court officer.
-(3) In this part:
o "Appeal" includes an appeal by way of case stated;
o "Appeal court" = the court to which an appeal is made;
o "Lower Court" = the court, tribunal or other person or body from whose decision an appeal is brought;
o "appellant" = a person who brings or seeks to bring an appeal

"respondent" =
-(i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and
-(ii) a person who is permitted by the appeal court to be a party to the appeal;
o "appeal notice" = an appellant's or respondent's notice.
-(4) This part is subject to any rule/enactment/PD which sets out special provisions re any particular category of appeal.

52.3, Permission to appeal
-(1) an appellant or respondent requires permission to appeal:
o (a) where the appeal is made from a decision of a judge in the County Court or the High Court; or to the CA from a decision of a judge in the family court; except where the appeal is against [[no permission needed where]]:
-(i) a committal order;
-(ii) a refusal to grant habeas corpus; or
-(iii) a secure accommodation order under s25 Children Act 1989 or s119 Social Services & Well-Being (Wales) Act 2014; or

(b) as provided by PD 52A to 52E.
o [[so basically you always require permission to appeal except in above 3 situations]]
-(2) An application for permission to appeal may be made:
o (a) to the lower court, at the hearing at which the decision to be appealed was made; OR
o (b) to the appeal court, in an appeal notice.
-(r52.12 re time limits for filing an appellant's notice at the appeal court; r52.13 time limits for filing a respondent's notice at the appeal court. Any application for permission to appeal to the appeal court must be made in the appeal notice).
-Application to lower court normally made orally, at the end of the hearing.
-(3) Where the lower court refuses an application for permission to appeal:

(a) a further application for permission made be made to the appeal court;
and

(b) the order refusing permission must specify:
-(i) the court to which any further application for permission should be made; and
-(ii) the level of judge who should hear the application.

52.4, Determination of applications for permission to appeal to the County Court and High
Court
-(1) Where an application for permission to appeal is made to an appeal court other than the Court of Appeal ? the appeal court will determine the application on paper, without an oral hearing, unless court orders otherwise; OR as provided for under para (2).
-(2) Subject to para (3), and except where a rule/PD provides otherwise, where the appeal court, without a hearing, refuses permission to appeal ? the person seeking permission may request the decision to be considered at an oral hearing.
o (6) a request under (2) , must be filed within 7 DAYS after service of the notice that permission is refused.
-SO 3 OPPORTUNITIES TO OBTAIN PERMISSION to appeal (where appeal is not to CA):
o (1) in lower court, made orally

(2) seek permission (in appeal notice) from appeal court on the papers without a hearing

(3) within 7 days of notice of refusal, request reconsideration at an oral hearing.
-(3) where in the appeal court a judge of the High Court/Designated Civil Judge/or
Specialist Circuit 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 decision to be reconsidered at an oral hearing.
o (4) For the purposes of (3), "Specialist Circuit Judge = any Circuit Judge in the
County Court nominated to hear cases in the Circuit Commercial, Chancery or Technology and Construction Court lists.
-(5) r3.3(5) [party able to apply to set aside a decision made of court's own initiative] ? does NOT apply to an order made under (3) (an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing)

52.5, Determination of applications for permission to appeal (first appeals) to the Court of
Appeal
-(1) where an application for permission to appeal is made to the CA ? the CA will determine the application on paper without an oral hearing; EXCEPT as provided for in (2).
-(2) the judge considering the application on paper may direct that the application be determined at an oral hearing;
o and MUST so direct IF judge is of opinion that the application cannot be fairly determined without an oral hearing. ??[[whichever method CA choose, paper or oral, there's no right to request reconsideration if refused. CF above for County/High Court, if refused on paper, can apply for oral hearing]]
(3) An oral hearing directed under (2) must be listed:
o (a) no later than 14 days from date of the direction under that para; and

(b) before the judge who made that direction

? unless court directs otherwise
(4) The CA may, in any direction under (2):
o (a) identify any issue(s) on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and

(b) direct the respondent to serve & file written submissions and to attend the oral hearing.
So 2 OPPORTUNITIES for permission to appeal if appeal is to CA:
o (1) at lower court, mode orally

(2) permission through appeal notice to CA. Determined on papers (unless judge decides can only be fairly determined with an oral hearing, will be within 14 days after the direction).

52.6, Permission to appeal test - first appeals
-(1) except where r52.7 applies [second appeals], permission to appeal may be given
ONLY where:
o (a) the court considers that the appeal would have a 'real prospect of success'; OR
o (b) there is some other compelling reason for the appeal to be heard.
-(2) an order giving permission under this rule or under r52.7, may:
o (a) limit the issues to be heard; and

(b) be made subject to conditions (eg paying security for costs of appeal).
-(r3.1(3): the court may make an order subject to conditions)
-(r25.15: court can order security for costs of an appeal).

52.7, Permission to appeal test - second appeals
-(1) Permission is required from the CA for:
o any appeal to the CA from a decision of the County Court/family court/High
Court which was itself made on appeal;
o or a decision of the Upper Tribunal which was made on appeal from decision of First-Tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the CA.
-(2) the CA will not give permission unless it considers that:
o (a) the appeal would:
-(i) have a real prospect of success; AND
-(ii) raise an important point of principle or practice; OR
o (b) there is some other compelling reason for the CA to hear it.
[[NB: the above are the tests for whether to grant permission to appeal; CF, if permission for granted, the test for whether an appeal will be successful is in 52.21(3): where decision of lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity.]]

52.12, Appellant's Notice (where appellant seeks permission from the appeal court)
-(1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant's notice.
-(2) the appellant must FILE the appellants notice at the appeal court within:
o (a) such period as may be directed by the lower court (which may be longer or shorter than the period in (b)); OR
o (b) where the court makes no such direction; and subject to specific provision in r52.8-122 and PD 52D; 21 DAYS after the date of decision of the lower court which the appellant wishes to appeal.
-(3) Subject to para (4); and unless the appeal court orders otherwise, an appellant's notice must be SERVED on each respondent:
o (a) as soon as practicable; and

(b) in any event not later than 7 days

After it is filed.
-(4) Where an appellant seeks permission to appeal against a decision to refuse to grant an interim injunction under s41 Policing & Crime Act 2009: the appellant is not required to serve the appellant's notice on the respondent.

52.13, Respondent's Notice
-(1) a Respondent may file & serve a respondent's notice
-(2) a respondent MUST file a respondent's notice when:
o (a) is seeking permission to appeal from the appeal court [i.e. wants to cross-appeal]; or

(b) wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court

? MUST file a respondent's notice
-[[i.e. no RN required if the R simply wishes to uphold the decision of the lower court for the same reasons as given]]
-(3) Where the respondent's seeks permission from the appeal court, it must be requested in the respondent's notice.
-(4) A respondent's notice must be FILED within:
o (a) such period as may be directed by the lower court; or

(b) where the court makes no such direction, 14 days after the date in para
(5), i.e 14 days after: (basically 14 days after it is served with notice that appeal will be happening):
-(a) the date the respondent is served with the appellant's notice ,
where (i) permission to appeal was given by the lower court; or (ii)
permission to appeal is not required.
-(b) (where permission has been applied for from the appeal court) ?
the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
-(c) the date the respondent is served with notification that the application for permission to appeal and the appeal itself, are to be heard together. ?(6) unless the appeal court orders otherwise, a respondent's notice must be SERVED
on the appellant and any other respondent:
o (a) as soon as practicable; and

(b) in any event not later than 7 days

After it is filed.
(7): this rule does not apply where r52.12(4) applies [re appeal against decision to refuse to grant an interim junction under s41 Policing & Crime Act 2009, where appellant not required to serve appellant's notice on the respondent.

52.14, Transcripts at public expense
-(1): subject to para (2), the lower court or the appeal court may direct, on the application of a party to the proceedings, that an official transcript of the judgment of the lower court, or of any part of the evidence or the proceedings in the lower court, or of any part of the evidence or the proceedings in the lower court, be obtained at public expense for the purposes of an appeal.
-(2) Before making a direction under (1), the court must be satisfied that:
o (a) the applicant qualifies for fee remission or is otherwise in such poor financial circumstances that the cost of obtaining a transcript would be an excessive burden; and

(b) it is necessary in the interests of justice for such a transcript to be obtained.

52.15, Variation of Time
-(1) an application to vary the time limit for filing an appeal notice must be made to the appeal court.
-(2) The parties may NOT agree to extend any date or time set by:
o (a) these rules;
o (b) PD52A to 52E; or

(c) an order of the appeal court or the lower court.
-(r3.2(1)(a): court may extend or shorten the time for compliance with any rule/PD/court order (even if the application for extension is made after the time for compliance has expired)).
-(r3.1(2)(b): court may adjourn or bring forward a hearing).

52.16, Stay
-An appeal shall NOT operate as a stay of any order or decision of the lower court,
UNLESS:
o (a) the appeal court or lower court orders otherwise; or

(b) the appeal is from the Immigration & Asylum Chamber of the Upper
Tribunal.

52.20, Appeal Court's Powers
-(1) in relation to an appeal, the appeal court has all the powers of the lower court.
-(r52.1(4): this part is subject to any enactment that sets out special provisions re a particular category of appeal; where such enactment gives a statutory power to a tribunal/person/body, it may be that the appeal court may not exercise that power on appeal).

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