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Appeals Judicial Review And Enforcement Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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Appeals & Judicial Review Part 36 Offers in Appeals

1. A Pt 36 offer made before trial has effect in relation to costs of proceedings up to final disposal of the 1st instance case (r36.3(4)).

2. Costs for appeals can be resolved by a separate Pt 36 offer for costs in appeal (r36.3(2) (b), 36.3(4)).

Judicial Review (i) What?

* Judicial Review is not an appeal of a decision, but a review of the manner in which the decision was made.

* JR lies against inferior courts, but only rarely against CC because the proper approach is to appeal. Superior Courts (HC and above) are not subject to JR.

* A distinction is drawn between where judge got law/facts wrong, and the procedures frustrated. (ii) Where?

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HC (QBD) per s38(3) CCA 1984.

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Judicial review of planning decisions/highways/compulsory purchase etc take place in Planning Court (r54.21)

(iii) How?

* C must have locus standi (a "sufficient interest in the manner to which the application relates" s31(3) SCA 1981)

* The decision must be susceptible to judicial review. It must affect them either by altering rights which are enforceable in private law, or by depriving a person of some benefit or advantage. It must be an issue of public law, not private law!
(iv) Remedies

1. Quashing Order ("Certiorari") a. This quashes the decision of the inferior court, tribunal, or public authority.

b. It has the power to remit back to the inferior body, and has the alternative power to substitute its own decision provided that: (I) The decision was quashed (ii) It was quashed for an error of law; and (iii) Without the error, there could only have been one decision it could have reached.

2. Mandatory Orders ("Mandamus") a. This requires the body to DO something, carry out its duties etc. b. Disobedience is contempt of court.

3. Prohibitory Orders ("Prohibitions) a. This restrains a lower court acting outside its authority

4. Declaration a. This is a decision of the court on question of law or rights. b. It must be a real rather than theoretical question, and it must be raised between parties having true interest in having it resolved.

5. Injunction a. This is granted where just and convenient (s37 SCA), but it cannot be ordered against the Crown (s21(2) Crown Proceedings Act 1947) except where to protect rights deriving from EU law (Factortame (No 2)).

6. Money Awards a. Damages, restitution, recovery of a small sum due may be made on an application for JR. b. Only in conjunction with other remedies available in JR claims (r54.3(2)). It is an abuse of process to take a private law action against public body by Judicial REview thereby depriving the public body of the rights which protect it under JR. JR Pre-Action Protocol

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Compliance is not necessary where case is urgent, time limit is less than 3 months etc.

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Should first send Letter of Claim to D seeking to establish whether litigation can be avoided and identifying the issues.

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D should reply within 14 days, or if this is not possible and interim reply should be sent within this time proposing a reasonable extension. It should say in clear terms whether the claim is conceded in full/part or is disputed.

No written evidence may be relied upon unless it has been served or court gives permission (r54.16.) If C seeks to rely on additional grounds, court's permission is needed again r54.15.

D and any other person served with CF who wish to contest/support it, must f/s detailed grounds for contesting/supporting and any written evidence within 35 days of service of order giving permission.

Court may decide JR case without a hearing if all parties agree (r54.18)

JR action accrues on date of judgment/order/conviction. Starting the Application

1. Permission to Proceed a. CF must be issued promptly, and in any event not later than 3m after cause of action accrued (r54.5(1)). It may not be extended by the parties. An extension may be granted by the court applying the OO - Is there a "good reason" to grant the extension?
i. It follows an application may be refused even within 3m if not made promptly. ii. Can refuse relied if delay and granting of relief would cause substantial hardship or substantially prejudice the rights of any person (including the general public) or be detrimental to good administration (s31(6) SCA 1981). No need for causal relationship between prejudice and delay. b. The JR CF is similar to a Pt 8 CF, but different. It must state: i. PD16(15), PD54A, r54.6:

1. Name and address of "interested persons"

2. That C is requesting permission to proceed with JR;

3. Remedies claimed;

4. HRA 1998 - if s4, specify the legislation or public act/court/judicial act ii. PD54A(5.6) - CF must be accompanied by:

1. Statement of C's grounds for bringing claim (PD54A(5.6))

2. Statement of facts relied on;

3. Application to extend time limit for filing CF (if any);

4. Application for directions iii.PD54A(5.7) - JR must be accompanied by:

1. Written evidence;

2. Copy of Order sought to be quashed;

3. Copy of judgment of inferior court (if any)

4. Copies of statutory material;

5. Essential documents for advanced reading by the court;

2. Acknowledgement of Service a. Have 21 days to acknowledge service (r54.8(2)(a)). Must be served within 7 days after it is filed (r54.8(2)(b)). b. The acknowledgment must set out the grounds on which the claim is contested, and set out any "interested persons" per r54.8(4). c.

If fails to AoS, not allowed to take part in Permission Hearing unless court allows him to do so (r54.9(1)).

3. Permission a. Usually done by judge without hearing. - Is there an arguable case from the papers?
b. Judge's Order with reasons are then served on C, D, and any other person who filed AoS (r54.11) c.

If so requested in the Notice, Applicant may ask for Hearing.

d. Court will give other Case Management Directions (r54.10).

4. Reconsideration a. IF refused, C may file a request for decision to be reconsidered at hearing (r54.12(3)). b. This must be made within 7 days of service of the refusal of the permission.

The Substantive JR Hearing

1. If Claim made under HRA 1998, court may give direction to give notice to Crown, or join Crown as a party per PD54A(8.2).

2. Detailed grounds of contention and Papers must be filed within 35 days after service of Order giving permission (r54.14).

3. Parties may be joined per r54.17. Such applications should be made promptly.

4. Usual rule is no oral evidence, and disputes of fact are resolved in favour of D.

5. It is possible to apply for orders of disclosure, further info under Pt 18, permission to XX any person who has given written evidence, as well as interim injunctions.

6. Disclosure is not required except for express court Order (PD54A(12.1)). Won't be permitted if Applicant is merely fishing.

7. Skeleton Arguments must be filed not less than 21 working days before Hearing Date. (PD54A(15.1)).

8. Other parties may file and serve their skeleton arguments not less than 14 working days before the hearing or warned date.

9. C's skeleton argument must be accompanied by a paginated/indexed bundle of all relevant documents.

10. Skeleton arguments must contain: a. Time Estimate for complete hearing (including judgment) b. Issues c.

Legal points to be taken;

d. Chronology; e. Essential Documents for advanced reading by judge; f.

List of persons referred to; (Dramatis Personae)

11. The Hearing a. Conducted in public, generally. b. Generally dealt with on written evidence, but witnesses may be exceptionally called for XX. c.

The court is not bound by the decision to grant permission - It has a discretion to grant relief.

Conversion to CL Claim

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Court may order JR proceedings can be continued as a Pt 7 claim where relief should be granted in ordinary claim.

Consent Orders

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Parties can agree a consent Order, and Court can put that agreement into writing without need for a hearing.

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Document should set out terms of proposed order, containing short statement of matters relied on to justify the order, and statutory authorities relied on.

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Original should be handed to Judge, with two copies.

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If court satisfied order should be made, it will be pronounced in public, without parties needing to attend. If not, the case will be listed for hearing in the normal way.

Civil Appeals (i) When?

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Permission must be sought at the hearing before the Judge rises.

(ii) Where?

*

*

CC

o

If DJ, then to CC Judge;

o

If CC, then to HC Judge;

o

If a "final decision" in a multi-track Pt 7 claim, or in specialist proceedings, it goes straight to CoA, not HC. Examples of final decisions are limitation bars.

o

If CC's decision was itself an appeal from CC DJ ("second appeal") it goes to CoA.

o

If HC Master/DJ, then to HC Judge;

HC

o

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CoA

o

*

If HC Judge, then to CoA;

To SC

Exceptionally, an appeal may leapfrog from HC to SC under s12,13,15 AOJ 1969 if:

o

Point of law of general public importance;

o

Relates to construction of Act or Statutory Instrument, or 1st instance judge bound by decision of CA/HL/SC.

o

All parties consent;

o

Trial Judge certifies immediately/end of trial/within 14 days case is suitable for Direct Appeal to SC;

o

SC grants permission to bring the appeal direct.

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As a general rule, appeal lies to the next level of judge in the court hierarchy. Thus in the county court appeal lies from a district judge to a circuit judge, and from a circuit judge to a high court judge; and in the high court appeals lie from a master or district judge of the high court to a high court judge and from a high court judge to the Court of Appeal. The court hearing a first appeal is described in CPR Part 52 as "the appeal court" (CPR

52.1(3)(b)), and the court from whose decision an appeal is brought is described as "the lower court" (CPR

52.1(3)(c)). A high court judge hearing an appeal must have attained the status of a high court judge or a judge of the Court of Appeal. Although retired judges of this status may hear such appeals, they may not be heard by deputies of lesser status (PD 52, para 8.9(1)).

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Appeal to next level in judicial hierarchy: The exceptions

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The normal route of appeal will not be followed where a district judge or a circuit judge in the county court, or a master or district judge of the high court gives the final decision in a multitrack claim allocated by a court to the multitrack under CPR 12.7, 14.8 or 26.5 (DO, Article 4(1)). This exception does not apply to a decision made in a Part 8 claim (which is treated as allocated to the multitrack pursuant to CPR 8.9(c)) or a decision in a claim allocated to the multitrack under some other provision, where the normal route of appeal will apply.

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For this purpose a final decision is one that would finally determine the entire proceedings, subject to any possible appeal or detailed assessment of costs, whichever way the court decided the issues before it (DO, Article 1(2)(c)).

(iii) How?

1. Permission to Appeal a. r52.3(!) CPR requires A/R requires permission to appeal where decision is from judge in HC/HC except where appealling against the following (i.e. where liberty of subject is in issue): i. Committal Order; ii. Refusal to grant habeas corpus; iii.Secure Accommodation Order under s25 CA 1989.

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