court appeals

Decisions of courts and orders of courts are final and binding upon the parties to the litigation, subject only to an appeal of the decision. 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. In modern litigation, an appeal will usually only be available where it is apparent that an injustice has been done.

A final decision 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.

In most commercial litigation, a party to the proceedings requires permission to appeal a decision. That permission may be obtained from either the court from which the decision was made or on application to the Court of Appeal. On occasion, the court that makes the decision that the litigant wishes to appeal will refuse permission to appeal; in those circumstances, the litigant may make an application to the Court of Appeal directly. These applications are ‘paper appeals’ in the sense that the Court of Appeal will consider the application without a hearing. When paper applications are refused, the unsuccessful may apply for a hearing to have the refusal reconsidered within 7 days of service of the refusal.

Time Limits

There are time limitations 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.

Appeals: Grounds

An appeal will only be allowed on limited grounds. 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 on the appeal. Alternately, it is for the appellant to show that there is some other compelling reason to grant leave to the 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.

Application before the Court of First Instance

There are several procedural and cost advantages to applying for leave to appeal before the lower court 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 minimises costs that might be incurred in making seeking permission directly from the Court of Appeal; 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 must 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.

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 court of the court, it must file a respondent’s notice, as this is only something that may be done on appeal. The application of the respondent must be made within 14 days of notice that the appeal will be entertained by the court.

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, and (4) 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; 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.

Usage: The Court of Appeal allowed granted leave to appeal the judgment to the applicant.

Related Words: litigation; locus standi; res judicata; final judgment; interim order; final order; .