The Appeal Process in Civil Matters

If you have lost your case before a civil court or other civil tribunal in England or Wales 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 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 in civil cases

The legal process can be expensive, and if anyone who lost was allowed to launch an appeal (and perhaps a further appeal) it would be more expensive still, so it is in only in a minority of cases that permission to appeal is given. The rules of different courts and other tribunals generally provide (I say "generally" because there are exceptions to everything) that (a) the hearing of an appeal is limited to a review and (b) permission to appeal is only granted if there are certain "grounds".

Review only

Generally the appeal tribunal will not hear any new evidence and will not re-hear live any of the witnesses who gave evidence in the tribunal below, instead relying on written transcripts if necessary. The appeal tribunal does not conduct a complete rehearing but only reviews the decision of the judge below. Generally this takes much less time than the original hearing took. Many appeals take no more than a day whereas the original hearing may have lasted many days or even weeks.

Grounds of Appeal

You should be granted permission to appeal if the tribunal you are appealing from made an error of law or there was procedural unfairness. An example of procedural unfairness would be where the 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 tribunal before it reaches its decision.

When trying a case, a tribunal considers evidence, that is documents such as letters, emails, photographs, invoices, deeds 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 tribunal's reasoning is usually set out in a written 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, say, 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.

In some specialist tribunals, you cannot appeal just because you think that the tribunal reached the wrong conclusion about what actually happened - the facts. However even in those tribunals some errors of fact can be so serious as to amount to errors of law (so that you can appeal). 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. It is also an error of law if the judge's conclusion does not logically follow from the findings they have made.

In other specialist tribunals and in most courts permission can be sought to appeal on both matters of fact and matters of law.

Raising points at the time

An appeal tribunal may be reluctant to allow an appeal on a point which could have been, but was not, raised with the court or other tribunal below. Generally speaking if a party believes that the tribunal below is acting in breach of some procedural requirement they are expected to raise the matter at the time not save if for appeal. This is particularly the case if a party seeks to appeal against the decision of an arbitrator as there is a strong presumption that arbitration should be final. The following cases are examples of where an appeal from an arbitrator's award was dismissed for this reason

https://caselaw.nationalarchives.gov.uk/ewhc/comm/2021/1884

https://caselaw.nationalarchives.gov.uk/ewhc/comm/2023/892

Nevertheless the rule has its limits. In one case it was said that:

“A party who seeks, for understandable reasons to dispense with the formalities of ordinary litigation should not without more be treated as wishing to dispense with the fundamental rules underlying the administration of justice, however informal; and while courts should be slow to intermeddle with the procedural conduct of arbitrations, it has a responsibility to safeguard the ultimate integrity of the arbitration process”.

Permission

In order to appeal it is usually necessary to obtain the permission of the court or other tribunal you are appealing from or, failing that, the permission of the tribunal you are appealing to. The requirement for permission acts as a check to avoid the appeal tribunal's time being taken up in a full appeal hearing where the grounds of appeal are judged to be too weak. The appeal judge 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 and other tribunals 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 tribunals 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 hearing. The following sample cases, where permission to appeal was refused, illustrate the general approach.

www.bailii.org/ew/cases/EWCA/Civ/2005/1084.html

www.bailii.org/ew/cases/EWCA/Civ/2015/672.html

www.bailii.org/ew/cases/EWCA/Civ/2015/761.html

www.bailii.org/ew/cases/EWCA/Civ/2016/251.html

www.bailii.org/ew/cases/EWCA/Civ/2016/261.html

www.bailii.org/ew/cases/EWCA/Civ/2016/642.html

www.bailii.org/ew/cases/EWCA/Civ/2016/1240.html

The tribunals which hear appeals

Appeals from the First-tier Tribunal are heard by the Upper Tribunal and appeals from the Upper Tribunal are heard by the Court of Appeal.

Appeals from the High Court are heard by the Court of Appeal.

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) or to the High Court.

Appeals from the Court of Appeal are heard by the Supreme Court.

The Supreme Court is the final tribunal of appeal 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 the applicant compensation, to be paid by 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 cases which are about money the practical consequences of winning at the ECHR are similar to having won an appeal within 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 tribunal hearing the appeal is the first judicial body to hear the matter and so often this "appeal" is more like a full first hearing (trial) than an appeal and often no permission is needed to make such an appeal.

Consulting a barrister on whether to appeal

If you have won your case and the other side is appealing, you have to respond in some way. If you have lost and are considering appealing, you have to decide within a limited time frame, whether to appeal or not. In either case you should immediately seek advice from a barrister. If the other side is appealing and has a good case and is likely to win on appeal it might be best not to contest the appeal. If your chances of success in any appeal you make 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 (in an appeal or in resisting the other side's appeal) then you need to know that well before the deadline for appealing or responding expires.

If you were represented by a barrister in the original tribunal, that barrister would normally be the barrister to advise you whether you have grounds to appeal and/or on resisting any 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 if the grounds of appeal are, or include, procedural unfairness a new barrister will be at a disadvantage because they will not have witnesses what happened first-hand. Most hearings are recorded but the recording is not made available to the parties - a party has to apply for a transcript, which is expensive, and because of delay in providing a transcript normally the appeal has to be filed or responded to before the transcript is available based on notes or recollections of what occurred. On the other hand if the appeal is to be based on an error of law in the usual sense then the new barrister can advise on that based on the written judgment (assuming that there was a written judgment rather than the judge simply giving an ex tempore judgment).

Bear in mind also that (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, and (2) the time limit for appealing is generally very short so you need to contact your chosen barrister straight away – preferably within 24 hours of the decision you are considering appealing against – and you need to get all the available papers to that new barrister promptly.

In most cases specialist tribunals notify the parties of their decision, with full reasons, in writing by post. Occasionally 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).

Most High Court decisions made at the end of a trial are also notified to the parties in writing but decisions made at interim hearings (e.g. a hearing held to decide whether a temporary injunction should be granted to preserve the status quo pending trial) are often given ex tempore. In the County Court a much higher proportion of decisions are ex-tempore - not just interim hearing decisions but many decisions at the end of the final hearing (trial) as well.

It is important to appreciate that the time limit for lodging an appeal varies between different 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. 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 anything in writing. Indeed it is possible that in some cases you will not receive anything in writing 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 tribunal 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 (if that barrister does direct-access work) 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 rather less than the legal costs incurred up to that point. There are two reasons for this. First, the role of the appeal tribunal is not to hold a complete rehearing but rather to review the decision made by the original judge in the light of legal argument from each side's barrister. The appeal tribunal does not hear witnesses again or consider all the documentation again but rather concentrates only on the particular "grounds of appeal" and consequently the hearing does not last as long as the original hearing. Secondly, the appeal (except in rare cases where new evidence is allowed) uses only materials which have already been used at the original hearing so that the costs incurred before the original hearing 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 rehearing in the tribunal below. For example, if the grounds of appeal are that the original judge asked the wrong legal question, sometimes the appeal tribunal will not only decide what the right legal question is but 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 tribunal, after deciding what the right legal question is, will take the view that the nature of the issue, in the context of the case, is such that only a judge who actually hears the witnesses afresh is equipped to answer the question, so that there has to be a complete rehearing before a different judge. Even if a rehearing is ordered, however, work such as disclosure of documents, expert witnesses, and obtaining witness statements should not have to be repeated so that the further costs might be mostly the costs of the rehearing 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 justiciable. So, for example, a planning permission decision by the Secretary of State is justicible whereas government foreign policy may not be (unless perhaps it is in an area regulated by statute). Judicial Review is a discretionary remedy and is not normally appropriate if there is an adequate mechanism for an actual appeal.

Disclaimer

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.

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