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JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN
(SUBJECT TO EDITORIAL CORRECTIONS)
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Lord Justice Brooke:
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| 1. | This is an application made by the claimants in curious
circumstances. They brought an action against the defendants for
unpaid rent in relation to a lease of cafe-restaurant premises in
Petersfield which the defendants vacated in August 1996. The arrears
of rent amounted to just over £20,000, together with interest of
about £7,000 up to 23rd February 2000, the date of the hearing
in the court below. The claim was originally started in the High Court
before being transferred to the county court. It was allocated to the
multi-track, and with the consent of the parties District Judge Ackroyd
heard the claim and entered judgment for the defendants. His
jurisdiction to try a multi-track claim was founded in paragraph
11.1(d) of Practice Direction 2B, which supplements CPR Part 2. The
district judge then gave permission to appeal.
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| 2. | The claimants sought to lodge their appeal at the county court as an
appeal to the circuit judge. Their solicitors were advised, however,
that the designated civil judge had directed the court office at the
Portsmouth County Court that since this was a multi-track case heard by
the district judge by consent, the appeal must go to the Court of
Appeal. They did not believe that this was correct, and when they
sought advice from a lawyer in the Civil Appeals Office, she advised
them to go back to the county court. They were also told that if they
had tried to lodge an appeal at the Court of Appeal under these
circumstances the papers would have been returned to them since the
Court of Appeal did not have jurisdiction to hear the appeal.
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| 3. | When they raised the matter of the appeal with the county court
again, the were told that the designated civil judge had commented on
their further letter in these terms:
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"I still think that the appeal in this case goes direct to the Court
of Appeal. CCR 37 R6 deals with appeals from District Judges
exercising their usual jurisdiction, and as appears from the notes
extends and also covers cases within the concurrent trial jurisdiction
of the County Court Judge and the District Judge. But this case does
not come into either category: it was a multi-track case being heard by
a District Judge with the agreement of the parties, ie he was in effect
sitting as in the capacity of a Circuit Judge, and consequently an
appeal from his decision cannot be entertained by another Circuit
Judge. That is a view shared by other Designated Judges."
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| 4. | They therefore returned to the Court of Appeal in search of a home
for their appeal. On this occasion the papers were referred to me, and
I directed that the matter should be listed before a two-judge court as
soon as possible so that there could be an authoritative judicial
ruling as to which level of court the appeal should lie. I also
requested the preparation of a bench memorandum by a lawyer in the
Civil Appeals Office (to be shown to the claimants' solicitors) which
would set out dispassionately the arguments for and against this court
having jurisdiction to hear the appeal, since the matter, although
important, did not appear to warrant the instruction of an amicus
. We are very grateful for the assistance we received, both from
this source, and from Mr Emmerson, who appeared for the claimants
before us. Although we understand that the county court is now willing
to list the matter as a substantive appeal, it appeared to us to be
very desirable to give an authoritative ruling on the point.
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| 5. | This was a county court matter, and at the relevant time appeals
from orders of district judges in the county court were governed by CCR
Order 37 Rule 6 (as scheduled to the CPR). This provides that:
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"(1) Any person affected by a judgment or final order of the District
Judge may, except where he has consented to the terms of the order,
appeal from the judgment or order to the Judge."
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| 6. | This rule was made under powers created by Section 77(1A) of the County Courts Act 1984Acts which was inserted by Schedule 17 to the Courts
and Legal Services Act 1990. This sub-section enables rules of court
to make provision:
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"for any appeal from the exercise by a district judge, assistant
district judge or deputy district judge of any power given to him by
virtue of any enactment to be to a judge of a county court."
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| 7. | The situation was different so far as high court proceedings were
concerned. RSC Order 58 Rule 2 (as scheduled to the CPR) provided for
an appeal from certain decisions of masters or district judges to go to
the Court of Appeal. These included a judgment, order or decision of a
master given or made at trial on the hearing or determination of any
cause, matter, question or issue tried before him (RSC O 58 r 2(1)(a)).
RSC Order 58 Rule 3 was concerned with appeals from District Judges in
the High Court:
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An appeal shall lie from any judgment, order or decision of a
District Judge in any proceeding in any Division in the same
circumstances and ... subject to the same conditions as if the
judgment, order or decision were given or made by a Master or Registrar
in those proceedings in that Division, and the provisions of these
rules with respect to appeals shall apply accordingly."
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| 8. | When the Civil Procedure Rules were introduced on 26th April 1999,
the Practice Direction which supplements RSC Order 58 Rule 2 provides
in paragraph 1.1 that the provision was "not intended to alter the
route of appeal from a decision of a Master or District Judge".
Paragraph 1.2 states that where, before 26th April 1999, an appeal
would have lain from a decision of a Master or District Judge to a
Judge under RSC Order 58 Rule 1, "it shall continue to do so under the
Civil Procedure Rules". Paragraph 1.3 of the Practice Direction states
that:
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"RSC Order 58 r 2(1)(a) provides that an appeal lies to the Court of
Appeal from a decision of a Master or District Judge made 'at trial ...
on the hearing or determination of any cause, matter, question or issue
tried before him'. This provision only applies where the parties have
given their consent for the Master of District Judge to try a case
which has been allocated to the multi-track under Part 26 (see para 4.1
of the Practice Direction on Allocation of Cases to Level of Judiciary
- Part 2B)."
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| 9. | If this action had been proceeding in a district registry of the
high court, the designated civil judge at Portsmouth would have been
correct to decline jurisdiction in these circumstances. These,
however, were county court proceedings, and there is nothing in the
county court rules to indicate a direct route of appeal from a district
judge of the county court to the Court of Appeal in circumstances like
these.
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| 10. | So far as county court procedure is concerned, the judgment of this
court in Director-General of Fair Trading v Stuart[ [1991] 1 All
ER 129] elucidates the position helpfully. In that case the registrar
of the Salford County Court (who would now be described as a district
judge) granted an injunction, to which the appellant raised no
objection, restraining him from conducting any unfair trade practices.
The appellant appealed to the Court of Appeal, relying on Section 42(2)
of the Fair Trading Act 1973Acts which appeared to prescribe that route of
appeal.
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| 11. | In his judgment, with which the two other members of the court
agreed, Lord Donaldson of Lymington MR mentioned this submission, and
said at p 130d-e:
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"We have, of course, given due weight to that submission, but the
error lies in failing to appreciate that an appeal to the judge of the
county court is in the nature of an internal appeal, and it is only if
the litigant wishes to appeal outside the county court, an appeal from
the county court to another court, that s 42 comes into play and
specifies that the court shall be the Court of Appeal rather than a
Divisional Court or the Restrictive Trade Practices Court or any other
court."
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| 12. | He added at p 130f-g:
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"So, in summary, the appeal does lie to the judge under Ord 37 because
that internal form of appeal within the county court is not the type
of appeal to which s 42(2) of the Fair Trading Act 1973Acts applies. It
applies to appeals from the county court to another court and such an
appeal can only be brought after the internal remedies have been
exhausted by an appeal from the registrar to the judge. I would so
declare."
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| 13. | In my judgment, this accurately reflects the status of the
appellate regime within the county courts up to 2nd May 2000, and there
is nothing in any rule or practice direction to suggest that the regime
would be any different because on a particular occasion a district
judge was exercising the jurisdiction of a circuit judge (see Practice
Direction 2B para 11.1(d)). This may seem to be an anomalous result,
because if the district judge had been exercising similar jurisdiction
as a district judge of the high court the appeal would indeed have lain
to this court. It was always likely, however, that there would be some
anomalies during the interim period of 12 months between the
introduction of a modern, integrated set of civil procedure rules for
first instance hearings and the introduction of a similar set of
procedures in respect of appeals. This interim period is now at an
end, and as will be seen from the second part of this judgment, appeal
from the final decision of a district judge exercising jurisdiction in
the multi-track in a case of this kind will in future lie direct to
this court, whether the action assigned to the multi-track is
proceeding in the county court or in the high court.
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| 14. | This is sufficient to dispose of the present matter, which must
therefore proceed as an appeal to a circuit judge in the county court,
with the costs of this application being costs in the appeal. On 2nd
May 2000, however, a number of major changes were made to the
arrangements for appeals in civil courts, and this judgment provides
the opportunity to explain their effect. For the many points of
detail, courts and practitioners will of course have to consult the
instruments which introduced these changes. These are the Access to
Justice Act 1999 ("the 1999 Act"), the Civil Procedure Rules ("CPR")
Part 52 (together with CPR 27.12 - 27.13 and Section VIII of CPR Part
47), the Practice Directionpdp-52supplementing CPR Part 52 ("PD 52") and the
Access to Justice Act 1999 (Destination of Appeals) Order 2000 ("DO").
I have incorporated the effect of the Civil Procedure (Amendment No. 2) Rules 2000 (SI 2000/940) and the latest version of PD 52 into this
judgment. The general rules relating to appeals in CPR Part 52 are
expressly made subject to any rule, enactment or practice direction
which sets out special provisions with regard to any particular
category of appeal (CPR 52.1(4)). In this judgment I am concerned only
with appeals in civil proceedings in private law matters. I am not
concerned with appeals in public law cases or with appeals in family
proceedings.
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| | Appeal to next level in judicial hierarchy: The general rule
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| 15. | As a general rule, appeal lies to the next level of judge in the
court hierarchy. Thus in the county court appeal lies from a district
judge to a circuit judge, and from a circuit judge to a high court
judge; and in the high court appeals lie from a master or district
judge of the high court to a high court judge and from a high court
judge to the Court of Appeal. The court hearing a first appeal is
described in CPR Part 52 as "the appeal court" (CPR 52.1(3)(b)), and
the court from whose decision an appeal is brought is described as "the
lower court" (CPR 52.1(3)(c)). A high court judge hearing an appeal
must have attained the status of a high court judge or a judge of the
Court of Appeal. Although retired judges of this status may hear such
appeals, they may not be heard by deputies of lesser status (PD 52,
para 8.9(1)).
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Appeal to next level in judicial hierarchy: The exceptions
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| 16. |
The normal route of appeal will not be followed where a district
judge or a circuit judge in the county court, or a master or district
judge of the high court gives the final decision in a multi-track claim
allocated by a court to the multi-track under CPR 12.7, 14.8 or 26.5
(DO, Article 4(1)). This exception does not apply to a decision made
in a Part 8 claim (which is treated as allocated to the multi-track
pursuant to CPR 8.9(c)) or a decision in a claim allocated to the
multi-track under some other provision, where the normal route of
appeal will apply.
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| 17. | For this purpose a final decision is one that would finally
determine the entire proceedings, subject to any possible appeal or
detailed assessment of costs, whichever way the court decided the
issues before it (DO, Article 1(2)(c)). A final decision includes the
assessment of damages or any other final decision where it is "made at
the conclusion of part of a hearing or trial which has been split up
into parts and would, if made at the conclusion of that hearing or
trial, be a final decision" (DO, Article 1(3)); it does not include a
decision only on costs. This means that if a judge makes a final
decision on any aspect of a claim, such as limitation, or on part of a
claim which has been directed to be heard separately, this is a final
decision within the meaning of this provision. Mr Emmerson told us
that there was concern in some quarters that parts of a final decision
might be subjected to one avenue of appeal and other parts might have a
different avenue of appeal, but the language of DO Article 1(3) appears
to preclude this possibility.
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| 18. | Orders striking out the proceedings or a statement of case, and
orders giving summary judgment under CPR Part 24 are not final
decisions because they are not decisions that would finally determine
the entire proceedings whichever way the court decided the issues
before it.
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| 19. | The Court of Appeal is the appeal court for appeals against final
decisions of the type described above (DO, Article 4(a)). It is also
the appeal court where a final decision is taken in specialist
proceedings to which CPR 49(2) applies, whatever level of judge made
this final decision (DO, Article 4(b)). These proceedings are
admiralty proceedings, arbitration proceedings, commercial and
mercantile actions, patents court business, technology and construction
court business, proceedings under the Companies Acts 1985 and 1989 and
contentious probate proceedings.
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Permission to appeal: The general rule
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| 20. |
As a general rule permission is required for an appeal (CPR
52.3(1)). Permission may be granted either by the lower court at the
hearing at which the decision to be appealed was made, or by the appeal
court (CPR 52.3(2)). If an appeal court refuses permission without a
hearing, a request may be made for the reconsideration of that decision
at an oral hearing (CPR 52.3(4)). If at that oral hearing the appeal
court refuses permission to appeal, then no further right of appeal
exists, and that is the end of the matter (Access to Justice Act 1999 s
54(4); PD 52 para 4.8). One further new provision needs to be noted:
if an appellant is in receipt of services funded by the Legal Services
Commission (or legally aided) and permission to appeal has been refused
by the appeal court without a hearing, the appellant must send a copy
of the reasons the appeal court gave for refusing permission to the
relevant office of the Legal Services Commission as soon as it has been
received from the court (PD 52, para 4.17).
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| 21. | Permission to appeal will only be given where the court considers
that an appeal would have a real prospect of success or that there is
some other compelling reason why the appeal should be heard (CPR
52.3(6)). Lord Woolf MR has explained that the use of the word "real"
means that the prospect of success must be realistic rather than
fanciful (Swain v Hillman[ CAT 21 October 1999, para 10]).
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| 22. | An order giving permission to appeal may limit the issues to be
heard. It may also be made subject to conditions (CPR 52.3(7)). If a
court confines its permission to some issues only, it should expressly
refuse permission on any remaining issues. Those other issues may then
only be raised at the hearing of the appeal with the appeal court's
permission. That court and the respondent should be informed of any
intention to raise such an issue as soon as practicable after
notification of the court's order giving permission to appeal (PD 52
para 4.18).
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Permission to appeal: Exceptions
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| 23. | Permission to appeal will not be required where the appeal is
against a committal order, a refusal of habeas corpus or a secure
accommodation order made under Section 25 of the Children Act 1989Acts (CPR
52.3(1)(a)). In these cases, where the liberty of the subject is in
issue, appeal lies as of right.
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| 24. | Permission to appeal is not required for an appeal from a district
judge to a circuit judge in relation to a decision made in the small
claims track. (By CPR 52.1(2)(a) CPR Part 52 does not at present apply
to an appeal against an order in the small claims track, although I
understand that the position relating to such appeals is currently
under review). If a circuit judge dismisses such an appeal without a
hearing because no sufficient ground is shown in the notice of appeal
(see PD 27, para 8.6), an appeal against that ruling lies to a high
court judge (DO, Article 3(1): it is not a decision on an appeal
falling within Article 5). No permission is required for this further
appeal.
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| 25. | Similarly, permission to appeal is not required for an appeal from
a decision made (exceptionally) by a circuit judge on hearing a claim
allocated to the small claims track, for which a high court judge is
the appeal court (DO, Article 5 does not apply in these circumstances).
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| 26. | Permission to appeal is not required for an appeal from a decision
made by an authorised court officer in detailed assessment proceedings
to a costs judge or a district judge of the high court (CPR 47.21 as
substituted by SI 2000/940). On the other hand, permission to appeal
is required from a decision made by a costs judge or a district judge
of the high court in such proceedings to a high court judge (DO,
Article 2), because the exception mentioned in CPR 52.1(2)(b) applies
only to appeals in detailed assessment proceedings against the decision
of an authorised court officer, and not to this higher level of appeal
in such proceedings. Where costs are summarily assessed by a judge as
part of a final decision in a multi-track claim, then the principles
relating to appeals against final decisions in multi-track claims will
be applied (see paragraphs 17 and 19 above).
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First Appeals diverted from the normal route so as to be heard by
the Court of Appeal
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| 27. | If the normal route of a first appeal would be to a circuit judge
or to a high court judge, either the lower court or the appeal court
may order the appeal to be transferred to the Court of Appeal if they
consider that it would raise an important point of principle or
practice or there is some other compelling reason for the Court of
Appeal to hear it (CPR 52.14(1)). This rule refers to first appeals,
because what is in question is whether the appeal in question should be
heard in the county court or the high court on the one hand or in the
Court of Appeal on the other. By DO Article 5, all second appeals lie
to the Court of Appeal and nowhere else, so that this question could
not arise in that context.
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| 28. | The Master of the Rolls also has the power to direct that an appeal
which would normally be heard by a circuit judge or a high court judge
should be heard instead by the Court of Appeal (1999 Act s 57(1)).
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| 29. | In such cases the Master of the Rolls and the Court of Appeal also
have the power to remit an appeal to the court in which the original
appeal was or would have been brought (CPR 52.14(2)).
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The appellate approach: The general rule
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| 30. | As a general rule, every appeal will be limited to a review of the
decision of the lower court. This general rule will be applied unless
a practice direction makes different provision for a particular
category of appeal, or the court considers that in the circumstances of
an individual appeal it would be in the interests of justice to hold a
re-hearing (CPR 52.11(1)). The appeal court will only allow an appeal
where the decision of the lower court was wrong, or where it was unjust
because of a serious procedural or other irregularity in the
proceedings in the lower court (CPR 52.11(3)).
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| 31. | This marks a significant change in practice, in relation to what
used to be called "interlocutory appeals" from district judges or
masters. Under the old practice, the appeal to a judge was a rehearing
in the fullest sense of the word, and the judge exercised his/her
discretion afresh, while giving appropriate weight to the way the lower
court had exercised its discretion in the matter. Under the new
practice, the decision of the lower court will attract much greater
significance. The appeal court's duty is now limited to a review of
that decision, and it may only interfere in the quite limited
circumstances set out in CPR 52.11(3).
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| 32. | The first ground for interference speaks for itself. The epithet
"wrong" is to be applied to the substance of the decision made by the
lower court. If the appeal is against the exercise of a discretion by
the lower court, the decision of the House of Lords in G v G[
[1985] 1 WLR 647] warrants attention. In that case Lord Fraser of
Tullybelton said at p 652C:
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"Certainly it would not be useful to inquire whether different shades
of meaning are intended to be conveyed by words such as "blatant error"
used by the President in the present case, and words such as "clearly
wrong", "plainly wrong", or simply "wrong" used by other judges in
other cases. All these various expressions were used in order to
emphasise the point that the appellate court should only interfere when
they consider that the judge of the first instance has not merely
preferred an imperfect solution which is different from an alternative
imperfect solution which the Court of Appeal might or would have
adopted, but has exceeded the generous ambit within which a reasonable
disagreement is possible."
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| 33. | So far as the second ground for interference is concerned, it must
be noted that the appeal court only has power to interfere if the
procedural or other irregularity which it has detected in the
proceedings in the lower court was a serious one, and that this
irregularity caused the decision of the lower court to be an unjust
decision.
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The need for a suitable record of all judgments
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| 34. | This new emphasis on the importance of the decision made at first
instance gives added weight to the need for all such decisions to be
recorded accurately, so that the appeal court will be able to read a
reliable version of the judgment which it is concerned to review. If
it is a short judgment, the judge or master may of course dictate it to
the parties at dictation speed, to save the cost and delay involved in
obtaining a transcript. CPR PD 39 (Miscellaneous provisions relating
to hearings), paragraph 6.1, requires a judgment to be recorded unless
the judge directs otherwise, and if a judge or master is anxious to
spare a party of limited means the cost of obtaining an approved
transcript, he or she must take steps to ensure that by some other
means there is an incontrovertibly accurate record of the judgment.
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| 35. | There is a section of the new Practice Direction headed "Suitable
record of the judgment" (PD 52 paras 5.12 - 5.13) which brings
conveniently into one place a number of rules and other principles
which were previously not always easy to find. Because it is still the
case that no reliable record is often produced to an appeal court of a
judgment by a master or district judge, and sometimes of a judgment by
a circuit judge, I am setting out in this judgment the parts of that
Practice Direction which apply to civil proceedings. Careful attention
must be paid in the future to these matters by all who sit or practise
in civil courts, because it will be likely to lead to injustice if an
appeal court is expected to review a decision when there is no reliable
record of what was said in the lower court. The Practice Direction
reads, so far as is material:
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| "5.12 |
Where the judgment to be appealed has been officially recorded
by the court, an approved transcript of that record should accompany
the appellant's notice. Photocopies will not be accepted for this
purpose. However, where there is no officially recorded judgment, the
following documents will be acceptable:
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Where the judgment was made in writing a copy of that judgment
endorsed with the judge's signature.
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When judgment was not officially recorded or made in writing a
note of the judgment (agreed between the appellant's and respondent's
advocates) should be submitted for approval to the judge whose decision
is being appealed. If the parties cannot agree on a single note of the
judgment, both versions should be provided to that judge with an
explanatory letter. For the purpose of an application for permission
to appeal the note need not be approved by the respondent or the lower
court judge.
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When the appellant was unrepresented in the lower court it is the
duty of any advocate for the respondent to make his/her note of
judgment promptly available, free of charge to the appellant where
there is no officially recorded judgment or if the court so directs.
Where the appellant was represented in the lower court it is the duty
of his/her own former advocate to make his/her note available in these
circumstances. The appellant should submit the note of judgment to the
appeal court.
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| 5.13 |
An appellant may not be able to obtain an official transcript
or other suitable record of the lower court's decision within the time
within which the appellant's notice must be filed. In such cases the
appellant's notice must still be completed to the best of the
appellant's ability on the basis of the documentation available.
However it may be amended subsequently with the permission of the
appeal court."
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The appellate approach: The exceptions
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| 36. | The general rule is set out in CPR 52.11(1) which starts with the
words "every appeal will be limited to a review of the decision of the
lower court unless ...". I have already set out the exceptions
contained in that rule, and I have also mentioned the fact that CPR
Part 52 does not apply to two categories of appeal: appeals against
orders under Part 27 (the small claims track) and appeals against a
decision of an authorised court officer in detailed assessment
proceedings.
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| 37. | So far as the former is concerned, the only permissible grounds of
appeal are that there was a serious irregularity affecting the
proceedings or that the court made a mistake of law (CPR 27.12). As to
the latter, on an appeal against a decision of an authorised court
officer in detailed assessment proceedings, the court will rehear the
proceedings which gave rise to the decision appealed against (CPR
47.23(a) as substituted by SI 2000/940). In other words, in such a
case the court hearing the appeal will exercise its discretion afresh.
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Powers of the appeal court: the general rule
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| 38. |
The general rule set out in CPR Part 52 provides that every appeal
court has all the powers of the lower court (CPR 52.10(1)). It also
has power to affirm, set aside or vary any order or judgment made or
given by the lower court; to refer any claim or issue for determination
by the lower court; to order a new trial or hearing and to make a costs
order (CPR 52.10(2)). It may exercise its powers in relation to the
whole or part of an order of the lower court (CPR 52.10(4)). In other
words every appeal court, whether a circuit judge or a high court judge
or the Court of Appeal, has been expressly given the same powers in
relation to appeals governed by CPR Part 52. The Court of Appeal also
has special powers in an appeal from a claim tried by a jury (CPR
52.10(3)).
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Powers of the appeal court: the exceptions
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| 39. | The court hearing an appeal against a decision made in the small
claims track may make "any order it considers appropriate" if it is
satisfied that there was a serious irregularity affecting the
proceedings or that the lower court made a mistake of law. It also has
the power to dismiss an appeal without a hearing (CPR 27.12). I have
already mentioned the fact that a review of the appeal procedures in
the small claims track is currently being undertaken, so that courts
and practitioners must be alert to any future change to this rule.
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| 40. | In an appeal from an authorised court officer in detailed
assessment proceedings, the court hearing the appeal may "make any
order and give such directions as it considers appropriate" (CPR
47.23(b) as substituted by SI 2000/940).
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Second Appeals
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| 41. | Parliament is responsible for controlling the expenditure of public
resources on the administration of justice (whether in relation to the
direct costs of the courts, including the cost of the judiciary, or in
relation to expenditure on what used to be called legal aid). It has
now made it clear that it is only in an exceptional case that a second
appeal may be sanctioned. Section 55(1) of the Access to Justice Act
1999 provides that:
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"Where an appeal is made to a county court or the High Court in
relation to any matter, and on hearing the appeal the court makes a
decision in relation to that matter, no appeal may be made to the Court
of Appeal from that decision unless the Court of Appeal considers that -
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the appeal would raise an important point of principle or
practice, or
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there is some other compelling reason for the Court of
Appeal to hear it." (Emphasis added).
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| 42. | This reform introduces a major change to our appeal procedures. It
will no longer be possible to pursue a second appeal to the Court of
Appeal merely because the appeal is "properly arguable" or "because it
has a real prospect of success". The tougher rules introduced by a
recent Court of Appeal Practice Direction for "second tier appeals"
related only to cases where a would-be appellant had already lost twice
in the courts below (see Practice Direction (Court of Appeal) (Civil
Division) [1999] 1 WLR 1027, para 2.19.1). The new statutory provision
is even tougher - the relevant point of principle or practice must be
an important one - and it has effect even if the would-be appellant won
in the lower court before losing in the appeal court. The decision of
the first appeal court is now to be given primacy unless the Court of
Appeal itself considers that the appeal would raise an important point
of principle or practice, or that there is some other compelling reason
for it to hear this second appeal.
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| 43. | All courts are familiar with the litigant, often an unrepresented
litigant, who will never take "no" for an answer, however unpromising
his/her cause. Under the new appeals regime, however, such litigants
must appreciate that the general rule will be that the decision of the
appeal court on the first appeal will be the final decision. If they
wish to pursue the matter further, and to incur the often quite heavy
costs involved in paying the court fee and preparing the appeal papers,
the Court of Appeal may dismiss their application quite shortly, saying
that the appeal raises no important point of principle or practice, and
that there is no other compelling reason for the court to hear the
appeal.
|
| 44. | The reason for this significant change of appellate policy can be
found in the 1997 Review of the Business of the Court of Appeal (Civil
Division). This Review reported that over the previous decade there
had been a substantial increase in the number of cases coming to the
Court of Appeal. Its authors believed that if there had to be an
appeal in a civil case this should normally be the end of the matter.
This principle reflected the need for certainty, reasonable expense and
proportionality, and they said that there must be special circumstances
if there was to be more than one level of appeal. Elsewhere in their
report they had said that judges of the quality of Lords Justices of
Appeal were a scarce and valuable resource, and that it was important
that they were used effectively and only on work which was appropriate
to them (Review of the Court of Appeal (Civil Division), pp 10, 26 and
22).
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|
| 45. | It is clear that in the Access to Justice Act 1999 Parliament not
only accepted the report's analysis of the problems confronting the
Court of Appeal but that it also adopted even tougher measures than
those recommended by the Review to ensure that second appeals would in
future become a rarity and that the judges of this court would be freed
to devote more of their time and energy in hearing first appeals in
more substantive matters which either their court or a lower court had
assessed as having a realistic prospect of success.
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|
| 46. | These new arrangements are likely to impose great burdens on the
staff and lawyers in the Court of Appeal, unless the status of the
order being appealed against is completely clear on its face. Every
order made on appeal must therefore record the name and status of the
judge against whom the appeal was brought. Orders relating to final
decisions of a lower court must also make it clear whether the order
was made in the small claims track, the fast track or the multi-track,
and if it was made in the multi-track, it must state whether it was
made in a claim allocated to the multi-track or whether the Part 8
procedure was followed. If these steps are taken, it will be possible
for the Civil Appeals Office to ascertain without undue difficulty
whether the Court of Appeal possesses jurisdiction, and whether this is
a first appeal or a second appeal, simply by reading the order under
challenge.
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| |
Transitional arrangements
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| 47. | The new rules (and the new destination arrangements) will apply in
all cases in which an appeal notice has been filed or an application
for permission to appeal has been made on or after 2nd May 2000. If an
application for permission to appeal has been made to the appeal court
before 2nd May, and that court gives permission to appeal (whether
before or after 2nd May) the appeal will be brought and will continue
its progress under the old rules (see SI 2000/221, rule 39, as amended
by SI 2000/940, rule 2, and DO, Article 6). Rule 2 of SI 2000/940,
which came into effect on 2nd May 2000, reads:
|
| |
| |
"In the Civil Procedure (Amendment) Rules 2000, rule 39 (transitional
provisions) is amended to read -
| | |
| '39. |
Where a person has filed a notice of appeal or applied for
permission to appeal before 2nd May 2000 -
| | |
| (a) |
rule 19 of these Rules shall not apply to the appeal to which
that notice or application relates; and
| | (b) |
the rules of court relating to appeals in force immediately before
2nd May 2000 shall apply to that appeal as if they had not been
revoked'".
| | |
|
|
| 48. | Mr Emmerson suggested to us that the language of these transitional
arrangements also appeared to embrace an application for permission to
appeal to the lower court which had either been granted before 2nd May,
although no notice of appeal had been filed at the appeal court before
that date, or which had been made before, but granted after, that date.
Although the language of these provisions might appear to allow for
that interpretation of the rule, I am satisfied that on its proper
construction, when viewed in the context of a rule which begins with a
reference to the filing of the notice of appeal, the words "applied for
permission to appeal" must be taken to refer to an application for
permission made to the appeal court before 2nd May. In other words, if
the lower court granted permission, the notice of appeal must have been
filed at the appeal court before 2nd May for the old rules to continue
to apply to the appeal. If it did not grant permission, or refused
permission, before 2nd May, an application for permission must have
been made to the appeal court before 2nd May if the old rules are to be
applied to the appeal.
|
| 49. | In a judgment on security of costs delivered three days ago, on 9th
May 2000, in AT Poeton (Gloucester) Plating Ltd v Horton[ (CAT
9th May 2000]) Morritt LJ was clearly not made aware of SI 2000/940. If
he had been told about this rule, he would no doubt have held that
because Mr Horton had filed a notice of appeal before 2nd May 2000 the
provisions of RSC Order 59 applied to that appeal as if they had not
been revoked. This judgment should therefore not be followed.
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| |
Conclusion
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| 50. | I have explained these changes, and their effect, in some detail
because in many ways they mark the most significant changes in the
arrangements for appeals in civil proceedings in this country for over
125 years. In future the decision of the "first instance" judge in
what used to be called an "interlocutory appeal" will assume a much
greater importance than it ever did in the days when the "judge in
chambers" conducted a complete rehearing, with an entirely fresh
discretion to exercise. And the decision of the "appeal court",
whether a circuit judge or a high court judge, is in most cases now
likely to be final. These changes will compel litigants and their
advisers to pay even greater attention to the need to prepare their
cases with appropriate care, because they may find it much more
difficult to extricate themselves from the consequences of an
ill-prepared case before a judge at first instance in a lower court.
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|
Lord Justice Peter Gibson:
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| 51. | I agree.
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| The Master of the Rolls:
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| 52. | I also agree.
|