Step 11: Using the Appeal / Higher Courts
Wills and Probate
Primary Content Source: Ana Corina Lefter
Appeal courts usually limit the proceeding to a review of the decision of the lower court unless the court considers that it is in the interests of justice to hold a rehearing (CPR 52.11(1) and (2)).
A review is different from a rehearing as it only considers material that was presented to the lower court (no other oral or other evidence) and only that material which would be relevant to address the criticism raised by the appellant. Only in exceptional circumstances would the appeal court consider additional evidence (1).
In terms of the outcome of the appeal, the Court of Appeal will either:
- Endorse and keep the original decision,
- Dismiss the previous decision, or
- Order a new hearing.
The discussion below relates to appeals to the County Court and the High Court but the vast majority of the rules applicable in these two courts are also applicable to the Court of Appeals as noted below.
Which court can I appeal to?
You will need to appeal to the correct court in order for your application to be heard.
Usually, an appeal lies to the next level of judge in the court hierarchy. The following table sets out which court you would likely be able to appeal to depending on where your initial hearing was heard:
What steps need to be taken to file an appeal?
In order to formally lodge an appeal, you will need to file an appellant`s notice (Form 161 and in the case of a claim in the small claims court, Form N164). See the “Relevant Documents” tab for a form of the notice. Any application to be made in the appeal should be included with the appellant`s notice. The appellant's notice must be served on the other side as soon as possible after filing or in any event not later than 7 days after first filing with the court.
Where to apply for permission to appeal?
There are generally two options. Either you can make an application to the lower court which handed down the decision which you would like to appeal against or to the appeal court in an appeal notice.
Generally, the more prudent choice would be to make an application to the lower court which heard your case as the application can be made orally and is therefore much easier and cheaper than having to lodge a formal application for permission to appeal.
Where the lower court refuses your application, then you have a second opportunity to appeal by applying to the appeal court. The application for permission to appeal to the appeal court must be made on paper in an appellant's notice (Form N161 (or Form N164 in a small claim)). The appellant's notice will also contain the appeal itself (Form N161). Applications for permission to appeal may be determined with or without a hearing and the appeal court will usually decide whether to grant permission without an oral hearing.
Note that if your case is in the Commercial Court and you wish to apply for permission to appeal when the judgment is handed down, you will need to support that application with written draft grounds of appeal.
Which documents will I need to file with my appeal notice?
The following will need to be filed with your appeal notice:
three copies of the appellant's notice and one additional copy for each respondent;
a copy of the sealed order from the lower court which you are appealing against;
if you had made an application to appeal to the lower court and the application was denied or granted, you will need to file a copy of the order together with a copy of reasons for permission or refusal; and
grounds of appeal must be set out in a separate attachment to the appellant’s notice.
Note that the appeal court will not allow a party at the appeal hearing to rely on a matter that was not contained in its appeal notice unless it gives permission.
What are the appeal court’s powers?
The appeal court has the power to give the following orders regarding your appeal:
affirm, set aside or vary your order or judgment made or given by the lower court;
refer your claim or issue for determination by the lower court;
order a new trial or hearing;
make orders for the payment of interest; or
make a costs order.
Generally, the appeal court is limited to a review of the decision of the lower court unless the court finds that it would be in the interests of justice to hold a re-hearing. Unless it orders otherwise, the appeal court will not receive oral evidence; or evidence which was not before the lower court.
(1) Only in case the three-fold test in Ladd v Marshall  EWCA Civ 1 is satisfied.