Can I Appeal?

If you have lost your case before a civil court or tribunal you may be considering appealing (or, if you have won, your opponent might appeal). Appeals may be heard by, for example, the Upper Tribunal, the High Court, the Court of Appeal, or by the Supreme Court.

IMPORTANT The explanation of the appeal process below is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the explanation below but seek immediate legal advice from me or another barrister if you are thinking of appealing against a court or tribunal decision (or if your opponent is appealing). Please note that I only practice in civil law so I cannot assist you in a criminal appeal or a family-law appeal.

Introduction to the appeal process

There are over 600 Circuit Judges who hear cases in the County Court and over 2000 Tribunal Judges, but only those considered to be the most eminent judges are appointed to the Court of Appeal, which has 38 judges, and to the Supreme Court, which has 12. It is true that some appeals are heard in the High Court and Upper Tribunal (and appeals from District Judges are heard by Circuit Judges within the County Court) but it is still the case that, overall, the number of judges hearing appeals on any day is only a small percentage of the total. Thus only a small percentage of cases can be taken to appeal.

You may be wondering why doesn't everyone who loses appeal. The answer to that is that it is in only in a minority of cases that permission to appeal is given. It is considered better that the higher appeal courts should have a limited number of eminent judges rather than have the much larger number which would be necessary if everyone who wished was allowed to appeal. And if there are a limited number of judges the rules have to limit the number of court-days devoted to appeals accordingly. The rules accomplish this in two ways (a) limiting appeals to a review and (b) providing that an appeal can only be on certain limited grounds and permission is needed to appeal.  

Review only 

Generally the appeal court will not hear any new evidence and will not re-hear any of the witnesses who gave evidence in the court below. The appeal court does not conduct a retrial but only reviews the decision of the judge below. Generally this takes much less time than the original trial took. Many appeals take no more than a day whereas the original trial may have lasted many days or even weeks.

Grounds of Appeal     

Generally in order to obtain permission to appeal, and ultimately to succeed at the appeal hearing, it has to be shown that the court or tribunal you are appealing from made an error of law or an error of fact, or that there was procedural unfairness. Exactly what has to be shown in an appeal depends to some extent on the court or tribunal you are appealing from and the type of case, but an example of procedural unfairness would be where the court or tribunal, after having heard all the evidence, does not allow you (or your barrister if you were represented) to comment on the evidence and present arguments to the court/tribunal before it reaches its decision.

When trying a case, a court/tribunal considers evidence, that is documents such as letters, emails, photographs, invoices etc., and the testimony of witnesses (and sometimes also the evidence of an engineer, surveyor, surgeon or other expert) and decides what the facts are - i.e. what actually happened on the disputed occasion. It then applies the law to the facts to decide who wins. The court/tribunal's reasoning is set out in a written (or oral) judgment and if that reasoning shows that the judge applied the wrong legal test to the facts - for example if the judge applies the test of whether someone knew what they were saying was wrong, and found that they didn't, when the correct legal test in the circumstances is whether they knew or should have known (i.e. where carelessness is enough) - then an appeal on the grounds of error of law should be possible. 

An error of fact is where it is claimed that the judge's decision as to what actually happened is wrong. This can often be more difficult to establish because the judge will have been weighing up often conflicting evidence and deciding what is most likely to have happened. Often more than one view is possible and the appeal court may be reluctant to second-guess the trial judge unless the appeal court concludes that the trial judge was clearly wrong.

In some types of tribunal, the Statute provides for appeal only on a point of law. This is the case, for example, for appeals from Employment Tribunals. However some errors of fact can be so serious as to amount to errors of law. For example if a tribunal finds something to be proved for which there was no evidence (not merely fairly weak evidence) that will be an error of law. Procedural unfairness is also counted as an error of law. It is also an error of law if the judge's conclusion does not logically follow from the findings they have made.   

In order to appeal it is usually necessary to obtain the permission of the court/tribunal you are appealing from or, failing that, the permission of the court/tribunal you are appealing to. The requirement for permission acts as a check to avoid the appeal court's/tribunal's time being taken up in a full appeal hearing where the grounds of appeal are judged to be too weak. The court will look at the case at a short hearing, or on paper, to decide whether the grounds of appeal are arguable - in which case the appeal will be heard in full (usually at a later date) - or whether they are not even arguable in which case permission is refused. The higher up the hierarchy of courts permission is sought, the more likely that something more than an arguable case is required for permission to be granted. For example the Supreme Court grants permission only if there is an arguable point of law and it is of general public importance.   

In deciding whether to grant permission to appeal the courts take a realistic and practical approach and are reluctant to grant permission if the criticisms of the original judge's decision are minor and unlikely to have affected the result, or if the party seeking to appeal is at fault for not raising some point or not using some document at the original trial. The following sample cases, where permission to appeal was refused, illustrate the general approach.

The appeal courts

Appeals from the High Court are made to the Court of Appeal and appeals from the Court of Appeal to the Supreme Court. In the case of County Court decisions it is more complex: depending on the level of judge and the type of decision you are appealing against the appeal may be within the County Court (from a District Judge to a Circuit Judge) to the High Court, or to the Court of Appeal.

Appeals from tribunals may, depending on the tribunal, be to a higher tribunal, or direct to the courts. 

The Supreme Court is the final appeal court in the United Kingdom: it is not possible to appeal further. However in some cases involving fundamental human rights it is possible, after exhausting all avenues of complaint in the United Kingdom, to make a complaint direct to the European Court of Human Rights. This is not strictly an appeal but, because the ECHR can award compensation against the UK (on the basis that the UK has failed to ensure that its internal laws meet its obligations under the European Convention on Human Rights) in many cases the practical consequences of winning at the ECHR are similar to having won an appeal in the UK.
The above is only a general introduction and there are probably exceptions to most of what is stated above.

Some statutes give a right of "appeal" against certain decisions of government bodies. Depending on the statute this might be a right to appeal on a point of law only (such as an appeal against the decision on the Secretary of State on a planning enforcement appeal) or it might be a full right to appeal on law and fact (such as an appeal against an assessment to tax by H M Revenue and Customs). In the latter case although called an "appeal" the court or tribunal hearing the appeal is the first judicial body to hear the matter and so often this "appeal" is more like a trial than an appeal. 

Consulting a barrister on whether to appeal           

If you have won your case and the other side is appealing, you have no choice but to respond. If you have lost and are considering appealing, you should immediately seek advice from a barrister, as you need to decide, within a limited time frame, whether to appeal or not. If your chances of success in the appeal are low, then you need to know that and not incur further costs (unless, of course, the judgment you are considering appealing against is so damaging to you - e.g. would make you bankrupt - that you have in effect nothing to lose by appealing) but if there are good chances of success then you need to know that well before the deadline for appealing expires.

If you were represented by a barrister in the lower court/tribunal, that barrister would normally be the barrister to advise you whether you have grounds to appeal, and on the chances of success, because they will be familiar with the details of the case. If you prefer to instruct another barrister to advise you, you can, but (1) the new barrister’s fee to advise you will inevitably be higher because they will need to read all the papers to become familiar with the case (2) the time limit for appealing is generally very short so you need to contact your chosen barrister straight away – preferably within 48 hours of the decision you are considering appealing against – and you need to get all the available papers to that new barrister promptly.

In some cases tribunals and courts notify the parties of their decision, with full reasons, in writing by post. Sometimes the parties are simply notified of the basic decision and have to write to the tribunal if written reasons are sought (which are then sent out by the tribunal, provided they have been requested within a time limit). Sometimes a judge will simply give his judgment in court. There may be an audio recording but in some courts the onus is on any party considering an appeal to arrange and pay for the audio recording of the judgment to be transcribed (using a court-authorised transcription company). It is important to appreciate that the time limit for lodging an appeal varies between different courts and tribunals and can depend partly on the type of case or type of decision. In some cases the time for appealing may only be 21 days or less. In other cases it may be up to 42 days or more. It is also important to understand that when the time period (21 days or 42 days or whatever it is) starts to run also depends on the type of court or tribunal and/or type of case or type of decision. Sometimes time starts to run when you receive written reasons for the decision, but sometimes time starts to run when you are first notified of the decision - e.g. by it being announced by the judge in court - even before you have written reasons. Indeed it is quite possible that in some cases you will not receive written reasons until after the time for appealing has expired. In such cases parties wishing to appeal are expected to lodge an appeal within the relevant time limit based on notes of what the judge said when they announced their decision. The appeal court will not actually hear the appeal until the written reasons are available but the "grounds of appeal", which have to be drafted when the appeal is lodged, may have to be based purely on notes of what the judge said if a transcript is not by then available. The important thing in all cases is to do your best to get all the papers that you can, as quickly as you can, but not to delay contacting your chosen barrister for advice. You should contact your chosen barrister without delay with all papers which are available even if you are waiting for other papers.

If, up to now, you have been represented by solicitors, you can either ask your solicitors to instruct your chosen barrister to advise on the question of appeal, or you can contact your chosen barrister direct but if you are instructing the barrister direct you need to get from your former solicitors all the available papers in the case (if you do not already have your own copies) as soon as possible (but do not delay contacting the barrister if there are papers which are not immediately available).  

How much does it cost to appeal?

Many people are surprised to learn that the cost of an appeal (particularly if you go direct to a barrister) is usually very much less than the legal costs incurred up to that point. There are two reasons for this. First, the role of the appeal court is not to hold a retrial but rather to review the decision made by the trial judge in the light of legal argument from each side's barrister. The appeal court does not hear witnesses again or consider all the documentation from the trial but rather concentrates only on the particular "grounds of appeal" and consequently the hearing does not last as long as the previous trial. Secondly, the appeal (except in rare cases where new evidence is allowed) uses only materials which have already been used at the trial so that the costs incurred before the trial in e.g. disclosure of documents, expert witnesses, and obtaining witness statements, are not repeated during the appeal.

If the appeal is successful, there may be additional costs afterwards if there has to be a retrial. For example, if the grounds of appeal are that the trial judge asked the wrong legal question, sometimes the appeal court will not only decide what the right legal question is also, itself, decide what the answer to the right legal question on the facts of the particular case is. In a minority of cases, however, the appeal court, after deciding what the right legal question is, will take the view that the nature of the issue, in context of the case, is such that only a judge who actually hears the witnesses is equipped to answer the question, so that there has to be a retrial before a different judge. Even if a retrial is ordered, however, the pre-trial work (e.g. disclosure of documents, expert witnesses, and obtaining witness statements) should not have to be repeated so that the further costs are only the costs of the retrial itself.

Judicial Review

There is a procedure known as judicial review which can sometimes be used to challenge a decision even if there is no right of appeal as such. The right to judicial review is a longstanding common-law right based on the ancient prerogative writs of Mandamus, Prohibition and Certiorari and proceeds on the basis that all decisions made by public bodies have to be made lawfully, which includes being made with procedural fairness, being within the legal powers which the particular body has, and being rational. The decisions of all public bodies (and even some private bodies if they affect public rights) are subject to judicial review as long as the decision is about something which is justicible. So, for example, a planning permission decision by the Secretary of State is justicible whereas government foreign policy may not be (unless in an area regulated by statute). Judicial Review is a discretionary remedy and is not normally appropriate if there is an adequate mechanism for appeal.       



The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice.

This page was lasted updated in August 2019  Disclaimer