Civil Appeals

FROM THE MAGISTRATES' COURT

Appeals from the magistrates' court in family proceedings lie to the Family Division of the High Court (s61 and sch.1 Supreme Court Act 1981). Appeals from the magistrates' court in licensing matters go to the Crown Court (s8 Courts Act 1971 and s45 Supreme Court Act 1981).

FROM THE COUNTY COURTS

SMALL CLAIMS

Appeal's against the district judge's decision can only be made if there was a serious irregularity in the proceedings or the district judge made a mistake of law. The application for appeal will be referred to a Circuit Judge who may either dismiss the appeal or order that it be listed for hearing. The appeal itself will be heard by a Circuit Judge.

Click here for the LCD Consultation Paper on Small Claims Appeals.

TO THE COURT OF APPEAL

If any party to other proceedings in a county court is dissatisfied with the determination of any question of law or fact, he may appeal to the Court of Appeal, civil division (s77(1) County Courts Act 1984).

Since 1 January 1999, most appeals require the permission of the court below (the court which made the decision which is challenged) or of the Court of Appeal. The test is contained in the Practice Direction for the Court of Appeal (Civil Division), 19 April 1999:

· The general rule applied by the Court of Appeal and first instance courts deciding whether to grant permission, is that permission will be given unless an appeal would have no real prospect of success.

· Permission may also be given in exceptional circumstances even though the case has no real prospect of success if there is an issue which, in the public interest, should be examined by the Court of Appeal, eg a case raises questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration.

· Appeals must, generally, be made on a point of law.

Procedure in the Court of Appeal

· An appeal before the Court of Appeal, civil division, is normally heard by three judges sitting together, although any uneven number of judges not less than three (eg, five or seven) will suffice. However, in the interests of the economic and efficient use of judicial time, certain appeals and applications may be heard by only two judges.

· The hearing of an appeal by the Court of Appeal is not a retrial. The appeal is determined after reading the documents in the case and hearing counsel's arguments. In the civil division where the court consists of an uneven number of judges, the majority decision prevails. Each judge is entitled to deliver his own separate judgment.

Powers of the Court of Appeal

· The Court of Appeal has full power to make any order which could have been made in the court below. However, the Court of Appeal is usually reluctant to upset the trial judge's finding of facts because he saw and heard the witnesses and was in a better position to assess their creditability. Further, the Court of Appeal is usually reluctant to interfere with a judge's exercise of his discretion where he has used it correctly, and with an award of damages unless it is out of proportion with awards in similar cases.

· In appropriate cases the Court of Appeal may order a new trial on the following grounds: a misdirection of the judge to the jury (in those few civil cases where it is still used); improper rejection of evidence; misconduct at the trial; and judgment obtained by fraud.

In 1997, the Court of Appeal heard 1,100 appeals against final decisions and 600 appeals against interlocutory orders.

Click here for the Practice Direction for the Court of Appeal (Civil Division) 19 April 1999.

FROM THE HIGH COURT

A) TO THE COURT OF APPEAL

Appeals from all three divisions of the High Court in civil cases lie to the Court of Appeal, civil division (s16(1) Supreme Court Act 1981). Since 1 January 1999, most appeals require the permission of the court below (the court which made the decision which is challenged) or of the Court of Appeal. The test is contained in the Practice Direction for the Court of Appeal (Civil Division), 19 April 1999 (see above).

B) TO THE HOUSE OF LORDS (THE LEAPFROG PROCEDURE)

There is a procedure for missing out, or "leapfrogging", the Court of Appeal so as to enable an appeal to be taken from the High Court direct to the House of Lords (ss12-15 Administration of Justice Act 1969). The procedure is little used. The conditions which must be satisfied before such a direct appeal can be taken are that:

(a) the trial judge has granted a certificate of satisfaction, and

(b) the House of Lords has given leave to appeal.

A trial judge can only grant a certificate if all the parties consent and the case involves a point of law of general public importance which is either concerned wholly or mainly with the construction of a statute or of a statutory instrument, or is one where the trial judge is bound by a previous decision of the Court of Appeal or the House of Lords. The granting of a certificate by the trial judge is discretionary. No appeal is possible against the granting or refusal of a certificate.

Appeals from the High Court are rare. In 1997, out of two cases leave was granted in only one.

Procedure in the House of Lords

· Every appeal to the House of Lords must be heard by at least three judges. In practice, five of them usually sit together to form a court, or seven for very important cases. Each judge may deliver his own separate judgment, called a "speech" or "opinion" in the House of Lords. The hearing of the appeal is not a retrial. No oral evidence is given; the judges read all the documents in the case and listen to counsel's arguments. The majority decision prevails.

· The House is usually very reluctant to interfere with a trial judge's exercise of discretion, save in those cases where the judge is demonstrably wrong either in the light of further evidence, change of circumstances, or in point of law.

· Any orders made are, technically, High Court orders, as the House has no machinery for enforcement.

FROM THE COURT OF APPEAL

An appeal may be taken from the Court of Appeal to the House of Lords. Leave of either court is required (s1(1) Administration of Justice (Appeals) Act 1934).

If the Court of Appeal refuses leave to appeal, a party may nevertheless apply to the Appeal Committee of the House of Lords for leave to appeal. The Appeal Committee considers, in private, petitions to the House for leave to appeal. Each petition must be heard by at least three judges.

A civil appeal is usually taken to the House of Lords on a question of law, although the appeal can be on a question of fact, such as the quantum of damages. In a civil appeal to the House of Lords which involves a question of law, there is no statutory requirement that the question must necessarily be one of general public importance, although as a matter of practice, leave to appeal is liable to be refused by the Appeal Committee if the petition does not raise an "arguable point of law of general public importance".

In 1997, out of 252 cases, leave to appeal the House of Lords was given in only 62.