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Civil matters
Are there appellate courts that hear only civil matters?
The three divisions of the High Court (see question 1) only hear civil matters. The Queen’s Bench and Chancery Divisions hear most appeals on civil commercial matters in cases originating in the subordinate courts.
The Court of Appeal’s Civil Division is a specialist division dealing with civil matters. The Supreme Court, by contrast, hears both civil and criminal appeals (although, in respect of cases originating from Scotland, its jurisdiction is limited to civil appeals).
Bringing an appeal
Deadlines
What are the deadlines for filing an appeal in a commercial matter?
As parties require permission to appeal a decision of a lower court, the filing of an appeal in a typical commercial matter involves submitting an application for permission along with supporting documentation (see question 7) within 21 days of the lower court’s decision, or such other period as may be specified by the lower court.
Permission to appeal can be sought from the lower court at the hearing in which the appealed decision was made. Alternatively, the lower court may adjourn the hearing in order to give a party time to apply for permission to appeal. Where permission is refused by the lower court, permission can be sought directly from the appeal court. It is possible to apply directly to the appeal court for permission. However, given that the application to the lower court is relatively informal and does not require any additional filings to be made, very little is gained by not first seeking permission from the lower court.
Generally, permission to appeal will be granted where either the appeal would have a real prospect of success, or there is some other compelling reason for the appeal to be heard. The ‘real’ referred to in the first limb means that the appeal’s prospect of success must be realistic and not fanciful in order for permission to be granted. The second limb can be satisfied where the question posed is a novel one or where the issue is of importance to the public. Permission to appeal will not be granted in respect of purely hypothetical or academic questions.
Procedural steps
What are the key steps a litigant must take to commence an appeal?
As noted in question 6, obtaining permission to appeal is the first stage in any appeal process.
To apply for permission to appeal from the High Court to the Court of Appeal, a party must file an appeal notice (Form N161:
https://formfinder.hmctsformfinder.just ... 61-eng.pdf) and a skeleton argument with the Court of Appeal. A skeleton argument is a written document that outlines the submissions that a party intends to make in oral argument. This must be filed within 21 days of the decision being appealed and then served by the appellant on the opposing parties. The other parties then have 14 days to file a statement of reasons explaining why permission should not be granted, although this is optional. A single Court of Appeal judge will nearly always decide the application for permission on paper, without a hearing. A court fee (presently £528) is payable at the permission stage.
If permission to appeal is granted, the appellant may then file a new skeleton argument and all of the parties must agree the content of the bundles, which are then lodged with the Court of Appeal ahead of the hearing of the substantive appeal. A listing questionnaire must also be filed by the appellant setting out practical matters relating to the substantive appeal. A court fee (presently £1,199) is payable at this stage.
Where permission to appeal has already been granted or is not required, the appeal notice, skeleton, bundles and listing questionnaire listed above can be filed and lodged with the Court of Appeal directly.
In order to appeal from the Court of Appeal to the Supreme Court, it is once again necessary to seek permission to appeal from either the lower court (the Court of Appeal) or the appellate court itself (the Supreme Court). A potential appellant must seek the lower court’s permission to appeal before seeking it from the Supreme Court. An application for permission to appeal must be produced on Form 1 (
www.supremecourt.uk/docs/court-form-01.pdf). The application should set out briefly the facts and points of law and include a brief summary of the reasons why permission should be granted. The grounds of appeal should not normally exceed 10 pages of A4-sized paper. An appeal panel of three Supreme Court justices will consider applications for permission. As with the Court of Appeal, these are typically decided on paper, without a hearing. The other parties to the matter will be entitled, but not obligated to file a notice of objection to the appeal, setting out why permission to appeal should not be granted. Again, as is the case in the courts below, where permission is granted by the lower court, it is possible to proceed directly to the filing of a substantive appeal.
Where permission to appeal is granted (by whichever source), the appellant must give notice to the Supreme Court and the other parties that it intends to proceed with the appeal. Further copies of the application for permission to appeal will then need to be filed with the Supreme Court registry. The Supreme Court listing officer will then contact all of the parties and make arrangements for the substantive hearing to be fixed.
Documentation
How is the documentation for appeals prepared?
For appeals from the High Court to the Court of Appeal, it is the responsibility of the party requesting permission to appeal to obtain an approved transcript of the judgment being appealed, together with a sealed copy of the judgment and copies of any order made by the lower court granting or refusing permission to appeal. These can all be obtained from the lower court. These are then lodged with the Court of Appeal along with the appeal notice. They must also be included in the core appeal bundle at both the permission to appeal stage and at the hearing of the substantive appeal.
Right of appeal
Discretion to grant permission to appeal
In commercial matters, may litigants appeal by right or is appellate review discretionary?
As noted above, a party ordinarily needs permission to appeal a decision of a High Court or County Court judge. There are very limited exceptions to this requirement, the most important example being where the appeal concerns the liberty of appellant. In such cases, that party is entitled to an appeal as of right.
Judgments subject to appeal
Can litigants appeal any ruling from a trial court, or are they limited to appealing only final judgments?
The Court of Appeal has jurisdiction to hear and determine appeals from any judgment or order of the High Court. This includes interlocutory orders and directions. Put simply, the outcome or result of any hearing in the lower court may be appealed. It should be noted that, technically speaking, it is not the reasoned judgments of the lower courts that can be challenged; but rather the orders that result from them. This is why appeals focus on issues of law, rather than findings of primary fact.
Security and interlocutory matters
Security to appeal
In a typical commercial dispute, must a litigant post a bond or provide security to appeal a trial court decision?
The Court of Appeal may order security for costs of an appeal to be paid by an appellant. This order will be made on the basis of the same grounds as any security for costs order made by a High Court judge at first instance. In commercial disputes this will most likely be in circumstances where the appellant is resident outside of the jurisdiction, or where there are doubts that the appellant would be able to pay the respondent’s costs of the appeal in the event that the appeal was unsuccessful.
Interlocutory appeals
Are there special provisions for interlocutory appeals?
No. As all appeals are against orders of the lower court, no distinction between interlocutory and final judgments is made. A judge in the lower court may rely on their general case management powers to adjourn the matter while an appeal of an interlocutory order is heard, although this will generally be a matter at the discretion of that judge.
Injunctions and stays
Are there special rules relating to injunctions or stays, whether entered in the trial court or on appeal?
Injunctions are granted at the discretion of the court and are not available as of right. An injunction will usually be granted where it appears to the court to be just and convenient to do so. The court has a broad discretion when granting injunctions. However, in the case of American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1, the House of Lords (the Supreme Court’s predecessor) established an important test that is routinely applied in determining whether an interim (rather than a final) injunction should be granted. In applying that test, the court is to consider two issues:
whether there is a serious question to be tried; and
the ‘balance of convenience’ (ie, a court will balance the respective inconvenience or loss to each party dependant on whether or not the interim injunction is granted).
A stay, by contrast, imposes a temporary halt on proceedings. Proceedings can be continued if a stay is lifted. The court has inherent jurisdiction to stay the whole or any part of any proceedings. In deciding whether to impose a stay, the court will have a wide discretion and each case will be judged on its facts. Although stays may be imposed for a number of reasons, they are often ordered to give parties an opportunity to settle, pending the resolution of a test case or to protect concurrent claims.
Scope and effect of appellate proceedings
Effect of filing an appeal
If a litigant files an appeal in a commercial dispute, does it stay enforcement of the trial court judgment?
Unless an appeal court or a lower court orders otherwise, or the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal, an appeal will not operate as a stay of any order or decision of the lower court. Therefore, if carrying out the order contained in a judgment would defeat the benefit of a successful appeal, a party may seek to secure a stay of that order.
A stay will not generally be ordered unless there is likely to be real prejudice caused to a party (in the sense of irremediable harm) if the judgment is enforced and the appellant later wins the appeal. In determining whether to order a stay pending an appeal, the essential question is whether there is a risk of injustice to one or more parties.
Scope of appeal
On an appeal from a commercial dispute, may the first-level appellate court consider the facts and law anew, or is its power to review limited?
An appeal is limited to a review of the decision (ie, the order) of the lower court unless the applicable procedural rules state otherwise or the court considers that, in the circumstances of the appeal, it would be in the interests of justice to hold a rehearing.
An appeal court’s powers to ‘review’ the factual findings of the lower court cover a broad spectrum of procedures, but in relation to primary findings of fact based on evaluation of oral evidence, an appeal court will generally be unlikely to overturn a first-instance judge’s findings of fact. At the other end of the spectrum are appeals on points of law where no consideration of factual evidence is required. In between lies multi-factorial decisions based on inferences from documentary material.
An appeal court will generally allow an appeal where the decision of the lower court is either wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court. ‘Wrong’ in this context means containing an error of law, an error of fact or an error in the exercise of the court’s discretion.
Further appeals
If a party is dissatisfied with the outcome of the first-level appeal, is further appeal possible?
If a party is dissatisfied with the outcome of a first-level appeal, a further appeal may be possible, depending on the court in which the appeal was heard and the order that was made. However, as explained above, a prospective appellant will generally need to ask for permission (either from the appellate court or the court appealed from) before it can make an appeal.
For example, if a judgment from the Court of Appeal is being appealed to the Supreme Court, an application for permission to appeal must first be made to the Court of Appeal. If that court refuses permission, an application may be made to the Supreme Court. Permission to appeal to the Supreme Court will only be granted in cases that raise an arguable point of law of general public importance that, in the view of the judges determining the permission application, ought to be considered by the Supreme Court at that time.
Duration of appellate proceedings
How long do appeals typically take from application to appeal to a final decision?
How long it takes to bring an appeal and to receive a final decision is highly dependent on various factors, including the court or list in which the appeal is brought, the workload of that court or list and the complexity and urgency of the appeal being heard. In the Court of Appeal, once permission to appeal is granted, depending on the urgency of the case, a hearing could take place and a judgment could be delivered within six months. However, a typical appeal in a complex commercial matter determined on a non-urgent basis might take between 12 and 18 months from permission to judgment. A similar timeframe (12 to 18 months) is also to be expected in the Supreme Court.
Submissions and evidence
Submissions process
What is the briefing and argument process like in a typical commercial appeal?
The briefing process, generally referred to as appeal submissions, ordinarily involves the parties sequentially exchanging written submissions in the months prior to the appeal hearing. The structure and content of these written submissions will typically form the basis of an oral argument.
Oral argument at a typical commercial appeal will generally be focused on finding errors of law or fact in the primary judge’s decision. In the absence of witnesses and experts (which would have been dealt with at the trial level), the usual procedure is for the counsel for the appellant to orally present their case for appeal, followed by the respondent’s counsel making oral submissions as to why the appeal should fail. Depending on the nature of the oral submissions put forth by the respondent’s counsel, the appellant’s counsel may take the opportunity to reply to the respondent’s submissions. During the course of oral argument, the appellate judges may put questions to advocates, although this will depend on the structure and content of the submissions and the preference of the judge.
New evidence
Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?
The usual rule is that the court to which an appeal is made will not receive evidence (oral or otherwise) that was not before the lower court. Such evidence is known colloquially as ‘fresh evidence’ and will only be admitted in limited circumstances. The following are matters the court will consider in exercising its discretion as to whether to admit fresh evidence:
whether the evidence could have been obtained with reasonable diligence for use before the lower court;
whether the evidence is such that, if given, it would probably have an important influence on the result of the case (though it need not be decisive); and
whether the evidence is apparently credible (though it need not be incontrovertible).
Subject to the permission of the court, fresh evidence may be either oral or written.
New evidence of wrongdoing
If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?
The proper course for a litigant that wishes to rely on fresh evidence to show that a trial court’s judgment was obtained by fraud is to commence a fresh action asking for the trial court’s judgment to be set aside, rather than raising the issue on appeal.
Evidence that is allegedly probative of fraud must satisfy the usual requirements for the admissibility of fresh evidence. The litigant must be able to show that the evidence of fraud upon which he or she seeks to rely was not available at the time of trial and could not with reasonable diligence have been discovered for use at trial.
New legal arguments
May parties raise new legal arguments on appeal?
The general rule is that a party may not rely on a point unless it was taken at trial. The leave of the court is required to rely on new points of law. The court will only grant leave where a party satisfies what has been described as the ‘heavy burden’ of showing that the case could not have been conducted differently, in any material respect, as regards the evidence had the new point been raised at trial.
Costs, settlement and funding
Costs
What are the rules regarding attorneys’ fees and costs on appeal?
The costs rules applicable to appeals are generally the same as those that apply to other civil proceedings before the courts of England and Wales. The general rule is that costs follow the event; that is, the loser will pay the winner’s costs. The court to which an appeal is made has discretion not only over the costs of the appeal, but also over the costs incurred in the proceedings before the lower courts. Any costs award might involve detailed assessment proceedings.
Settlement of first instance judgment after appeal lodged
Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?
The parties may enter into a settlement agreement after an appeal has been commenced. It is not always necessary to provide for a formal variation of a trial court’s order or judgment. While that order or judgment might stand, the parties’ separate contractual agreement to settle will often be sufficient to dispose of the matter. In such a case, the parties ought to approach the court with a joint request that the appeal be dismissed by consent.
In circumstances where the parties agree that the order of the trial court was wrong and are agreed on the terms of the order that ought to be substituted, they may ask the appeal court to allow the appeal and to substitute the parties’ agreed order for the order of the trial court.
Limits on settlement after commencement of appeal
Are there any limits on settlement once an appeal has been taken?
No. Settlement once an appeal has been taken is as binding as if made at any other stage of the proceedings. The parties retain their broad contractual scope to settle as they see fit.
Third-party funding
May third parties fund appeals?
Third-party litigation funding is generally permitted in England and Wales and no special restrictions apply in connection with the funding of appeals.
Litigation funding is increasingly provided by specialist third-party litigation funders. Additionally, or alternatively, a party’s solicitors might assume some or all of the potential risk in exchange for an enhanced return in the event of a successful claim through the use of a conditional fee arrangement or damages-based agreement. After-the-event insurance is also widely used.
Third-party litigation funding is now largely considered to increase access to justice and, at the same time, old-fashioned rules prohibiting champerty and maintenance have been progressively eroded in recent years. That said, those funding litigation must be careful to act with propriety and in accordance with public policy objectives and applicable regulation.
Disclosure of litigation funding
If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?
There is no general requirement to disclose funding sources to the court or to the other parties to the case. However, in some circumstances, other parties to the litigation might be able to obtain an order from the court that the identity of those funding litigation against them must be disclosed (eg, where it is necessary to facilitate an application for security for the costs of litigation).
Judgments, relief and non-parties
Decisions
Must appellate courts in your country write decisions explaining their rulings? Can the courts designate the precedential effect of their decisions?
Appeal courts must give reasons for their decisions. In general, the reasons for the decision are set out in (often lengthy) written judgments.
The precedential effect of an appeal court’s decision in England and Wales is determined by the doctrine of precedent. When the High Court hears appeals from the subordinate courts (eg, the County Courts), it is generally bound both by the decisions of the Court of Appeal and Supreme Court as well as by its own prior decisions. Similarly, the Court of Appeal is bound by the decisions of the Supreme Court and its own prior decisions. The Supreme Court, by contrast, can overrule its own decisions.
Non-parties
Will the appellate courts in your country consider submissions from non-parties?
There are various ways in which non-parties can play a role in court proceedings in England and Wales. Non-parties who have a legitimate interest in the issues in a case might either seek to intervene at their own initiative or be invited to intervene either by the court or by one or more of the parties to a dispute. In other cases, an amicus curiae might be invited by the court to make submissions on a point of law or on behalf of an unrepresented party. Most commonly, however, third-party interventions are made in the public interest. In administrative law ‘judicial review’ cases (in particular) it is relatively common for non-party interveners to apply for, and be granted, permission to make submissions (whether written, oral or both) to the court both at first-instance hearings and in appeals. Charities, non-governmental organisations and government agencies are the most common non-party interveners in proceedings before the courts of England and Wales.
Relief
What are the ordinary forms of relief that can be rendered by an appellate court in a civil dispute?
An appellate court will ordinarily do one of three things. It might uphold the order of the lower court (though it might justify that order by different reasoning). Alternatively, it might substitute its own order for that of the lower court. This might include awarding any type of relief originally sought by the parties in the lower courts. In a commercial dispute, this is likely to include an award of damages. Finally, an appellate court might, in some circumstances, set aside the order of the lower court but remit the case back to that lower court for reconsideration.
Gibson Dunn & Crutcher LLP - Patrick Doris, Doug Watson and Daniel Barnett
