court appeals

Decisions of courts are final and conclusive upon the parties to the litigation, subject to appeal. It is this quality of decisions made by a court which make it the final course for resolution of disputes between parties. From a public policy perspective, appeals serve the purposes of ensuring that justice is done between the parties, to clarify the law for the lower courts and set precedents. An appeal will only be available where it is apparent that there was a serious procedural irregularity, the decision of the lower court was wrong, or an injustice has been done.

Finality of Decisions

A decision which is final and conclusive is one that finally determines the entire proceedings. Decisions that are not final for the purposes of appeal include applications for summary judgment, strike out applications, case management decisions (such as orders for disclosure, filing witness statements, security for costs and joining a party to litigation) and grants and refusals of interim relief. Appeals are available for all decisions of the lower courts, provided permission is granted (other than limited cases such as an appeal of (1) a committal order, (2) otherwise provided by the Civil Procedure Rules).

That permission may be obtained from either the court from which the decision was made or on application to the appeal court. On occasion, the court which makes the decision that the litigant wishes to appeal will refuse permission to appeal. In those circumstances, the litigant may make the request for permission to appeal directly from the appeal court. These applications are ‘paper appeals’ in the sense that the appeal court will consider the application without a hearing. When paper applications are refused, the unsuccessful party may apply for a hearing to have the refusal reconsidered within 7 days of service of the refusal unless the judge in the higher court finds the appeal is totally without merit.

Permission to appeal is required to appeal a decision from the county court or the High Court. This is always the case where the decision of the lower court was itself an appeal of a decision of one of those courts. Where the decision of the lower court was itself an appeal, lower court may order that the intending appellant may not have the decision reconsidered at a hearing. Permission to appeal may be restricted to specific issues, and made subject to conditions.

Time Limits

There are strict time limits imposed in appellant courts within which an appeal must be lodged. Whether or not an appeal will be made must be decided promptly. The default period to lodge an application under the Civil Procedure Rules is 21 days, however this may be extended or shortened by the lower court. The application to appeal must be served upon the respondent within 7 days of filing.

If permission to appeal is refused in the court in which the decision is made, the appellant must apply for permission to appeal to the appellate Court.

Permission to Appeal

There are several procedural and cost advantages to applying for permission to appeal before the lower court at the time it makes its decision. Firstly, the judge hearing the matter will be aware of the facts and circumstances of the case, and result may have decided that there are issues within the case that are worthy of appeal.

The application for permission avoids the costs that would be incurred when seeking permission directly from the appeal court; the rights of the intended appellant are not affected by making such an appeal.

When an application is made to the lower court for permission to appeal, the judge should state:

1. whether or not the order made is final or not;
2. if an appeal lies, the court to which the appeal is to be made; and
3. whether the court gives permission and failing permission to appeal, the appropriate court to which a further application may be made.

When an appellant requires the permission of the appeal court to proceed with the appeal, it must do so using an Appellant's Notice, usually within 21 days of the decision. it must then be served on the respondent within 7 days.

Grounds

An appeal will only be allowed on limited grounds.

The appeal court will allow an appeal where the decision of the lower court was either wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

The court has a discretion to permit the appeal where the appellant would have a real prospect of success. To succeed on this ground, the applicant must show a real, as opposed to a fanciful prospect of success.

Alternately, it is for the appellant to show that there is some other compelling reason to grant leave to appeal. It may be the case that the litigant is able to argue that the law ought to be clarified with the consequent effect that the appellant would be successful on appeal, or otherwise in the public interest. In addition to this, it may be that binding authority would prevent an appeal, but a consideration of an important point of law would justify the appeal.

Unless there is good cause to do so, the appeal will:

• not receive any oral evidence;
• not consider any evidence which was not before the lower court;
• draw any inference of fact it considers justified on the evidence before the lower court;
• not consider any matter which is not contained in the appeal notice.

Application before the Appeal Court

Subject to obtaining permission to appeal, detailed rules apply setting out the type of judge which must hear an appeal. Generally speaking:

Powers of Appeal Court

The Appeal Court has the power to:

• affirm, set aside or vary any order or judgment made or given by the lower court;
• remit refer any matter back to the lower court for determination;
• order a new trial or hearing, as appropriate;
• make orders for costs;
• strike out any part of the Appellant's Notice;
• set aside permission to appeal in whole or in part; and/or
• impose or vary conditions upon which an appeal may be brought.

In addition to these powers, if it is the case that the appeal court (1) strikes out an application for permission to appeal, (2) strikes out an appellant's notice or (2) dismisses an appeal, it may place conditions on the appellant ability to conduct legal proceedings in the future.

Respondent’s Position

The respondent to the appeal application may take a passive approach or elect to file submissions giving additional or different reasons to uphold the decision to those given by the lower court. If the respondent itself wishes to vary the decision of the court or give reasons why the decision of the lower court should be upheld, it must file a Respondent’s Notice. The application of the respondent must be made within 14 days of the permission to appeal being granted, or where the application for permission to appeal and the appeal are to heard together, within 14 days of that notice.

On an appeal, the court of appeal acts with all the powers vested in the lower court, and thus may affirm, vary, set aside a judgment or order referred to it, in the event that the appeal is not dismissed. In addition to this, it may

1. refer an issue back to the lower court for determination;
2. order a new trial;
3. make orders for payment of interest;
4. stay enforcement of the decision of the lower court; and/or
5. make costs orders.

An appeal will be allowed where the decision below was wrong or unjust due to a serious procedural irregularity. A decision is wrong where it contains an error of law, a decision was applied incorrectly, or the judge below erred in making a finding of fact.

It is trite to say that an appeal court will be slow to interfere with a judgment or order of the court below. It will look for a finding that it beyond a reasonable justification on the evidence before the court below, having regard for the factors that were to be taken into account on the issue in question.

Stays Orders on Appeal

Lodging an appeal does not automatically impose a stay of execution. Appellants should think carefully about whether a stay of the order of the court below should be applied to maintain the status quo while the appeal is being determined. Stays must be applied for the in the Appellant's Notice; importantly, the appellant's notice is not able to be amended without the permission of the court.