30 May — 22

The case went against me - can I appeal?

Preparing for a court hearing is time-consuming and stressful. Which means it’s disappointing and often upsetting when you don’t receive a judgment in your favour. What can you do when the judgment goes against you? Does the right to appeal give you a second bite of the cherry?

Well, if that were the system, we’d have a perpetual justice system in which no decision was ever final. But there are some limited circumstances in which you can appeal a judgment. Of course, any appeal to a higher court will draw out the litigation, and the costs and emotional investment that go with it. So you should always think carefully, and take advice from a lawyer, if you want to appeal a decision. Here’s a brief canter through the reasons you can rely on to make an appeal.

You can ask the appeal court to review the decision of a lower court if:

The decision was wrong

Now obviously, if the decision went against you, you’re likely to feel a personal sense of injustice.

But in order to be granted permission to appeal, you’ll need to show that the judge erred in law, erred in fact, or erred in the exercise of their discretion. For example, if the finding of fact is unsupported by the evidence, that would be legitimate grounds for appeal.

Bear in mind though, that the lower court judge will have had the benefit of witness evidence, both in written and oral form. That means that the lower court judge’s finding of fact is treated with a level of deference (e.g. with respect due to their standing as a judge), suitable to their more in depth knowledge of the facts of the case.

To say the judge erred in fact is to say that the findings were either unsupported by evidence or that the decision was one that no reasonable judge could have reached. It’s a difficult test to satisfy.

There was a serious procedural irregularity in the lower court’s proceedings

Again, this is an onerous ground to prove, but it is potentially wide-ranging. These are some of the reasons why cases have been appealed in the past on the grounds of a serious irregularity:

o   The judge awarded compound interest when it wasn’t specifically pleaded

o   The parties’ submissions were “cut and pasted” into the judgment

o   The judge intervened as a mediator

o   The judge considered without prejudice material and imposed a settlement

o   The advocate did not have Higher Rights, which rendered the trial a ‘mis-trial’.

Litigation is heavily managed by procedural directions, so a serious departure from the rules is usually considered to be a legitimate ground for appeal.

You need permission to appeal

Appeal is not an automatic right. You have to apply for permission to appeal a decision. And in the first instance, you have to apply for permission from the lower court, which made the decision. Of course, this is a delicate request as you’re asking the same judge to accept that his or her decision may not be correct.  

But if the lower court refuses, you can make a further application for permission to the appeal court. If you are refused permission from this court, then that is the end of the matter. There is no further recourse available from higher courts.

When permission will be granted

The court must be persuaded that the appeal will have a real prospect of success. In other words, it’s not just a fanciful backlash against the decision. There must be evidenced reasons that another judge may come to a different conclusion.

The second reason for granting permission is that there is some other compelling reason for the appeal to be heard. This is more difficult to satisfy and usually cases fall under this ground if it is in the public interest that the issue is examined by a higher court in order to set a precedent.

It’s often used in cases that raise an issue where the law requires clarifying.  But when you think about it, this is problematic conceptually. If the case raises an issue where the law requires clarifying, then by definition the appeal does not have a real prospect of success.

A recent example of an appeal that informs public policy

One recent example of appealing to a higher court for a decision in the public interest is a decision in the Supreme Court which held that criminal suspects have a “reasonable expectation of privacy” before they are charged (Bloomberg LP v ZXC [2022] UKSC 5).

The five Supreme Court judges said that there is “growing recognition that as a matter of public policy the identity of those arrested or suspected of a crime should not be revealed to the public.” This follows a recent trend in the courts of strengthening privacy protections in British law.

If you’d like any legal advice on a recent judgment you’ve been involved with, please do get in touch with us at HooperHyde. We’ll analyse your case and let you know the merits of appealing a judgment.


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