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Are appeals more appealing?

Posted on 17th January 2018

When I first started in private practice over 10 years ago, appeals were rare creatures but in recent years I have noted a spike in the number of cases which are appealed.

According to the Judicial and Court Statistics 2011 report published by the Ministry of Justice in the Court of Appeal alone there were 3758 applications which was an increase of 12% from 2010 and at the highest level since 2005.

This is rather frustrating especially for my clients who had secured favourable judgment after a long and hard fought battle.

On one of my cases, judgment was given in 2015. The application for permission to appeal was refused on papers in June 2016. Permission was further refused at an oral hearing in May 2017.

On the other hand I have also seen an increase in enquiries from potential clients who are eager to overturn an unfavourable judgment, but usually have come to us too late as there are very strict time limits for appeals.

Permission

In most cases before you can even consider an appeal you will require permission to appeal the original decision of the court.

You should orally ask the judge who has made the original decision at the time of judgment for permission.

If this is refused (which is the norm) then you can make a formal paper application for permission to appeal.

Permission is usually dealt with on papers unless the court decides that an oral hearing is required. In certain courts the applicant can also request a redetermination at an oral hearing if permission is refused on papers.

Although you cannot appeal the decision refusing to grant permission you can make a further application for permission to the same or another court.

Permission will only be granted if there is a real prospects of success or there is some other compelling reason.

NB You should note that merely making an application for permission will not automatically stop enforcement of the original decision (which stands until such time as it is appealed) so at the same time as any application for permission you should also ask for a ‘stay of execution’.

Process

Which court you have to make your application/appeal depends on which court and level of judge first determined your case.

Time Limit

The application for permission to appeal as contained in the Appellant’s Notice must be filed at the relevant appeal court within 21 days after the date of the original decision (and not the order reflecting this decision).

This time limit cannot be extended by agreement between the parties, although an extension of time can be sought from the court.

Grounds

You will only succeed in an appeal if you can show that the original decision was:

  • Wrong (in law/fact or the exercise of discretion)
  • Unjust due to a serious procedural or irregularity in the proceedings

The relevant provisions relating to appeals can be found in section 52 of the Civil Procedure Rules and the accompanying Practice Direction.

Conclusion

Appeals can be very technical and should not be embarked lightly. You should seek legal advice where possible and DO NOT DELAY.

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