Hello on. Welcome back. This is part two off this seven part Siri's off Webinars on civil appeals. I'm Benjamin wa I'm a barrister on I practiced in civil law. I'm based in London at the 36 Group. So in the last parts part one, we were learning about the scope off part 52 this part of the civil procedurals which governs appeals in the civil court system. In this part, we're going to be looking at grounds off appeal. So the objective, really, for this part is for us to have a think about the form in which your grounds of appeal should be and then have a think about the substance of the grounds What particular grounds of appeal are commonplace and are the sorts of arguments that practitioners come across on a regular basis? I hope you find it useful, but it's always helpful to have your feedback. So please do rate this Webinar, once you've gone through it and how to look through the materials and completed the exercises as well, I value your feedback. That's the only way that we can improve grounds of appeal. Then this is what Section seven off the form n 161 is all about. That's where you put your grounds of appeal. But pretty often more often than not, grounds of appeal tend to be attached in a separate document. It's worth reminding yourself, though, that the court system have provided that box for your grounds of appeal. And it's a limited space in order to try and encourage lawyers to be concise. Now, it's not a particular strength of lawyers to be concise. Often, grounds of appeal will be lengthy and detailed, but they need not be. And in fact, the CPR discourages that sorts of going on at length and prolix city to keep it short, keep it concise. Your grounds ought to specify whether or not any particular ground of appeal relates to a finding or conclusion of law or a finding or fact, and, of course as well go into a bit later. The approach off the appeal court to those two different types of challenge are quite different, so it's important to bear that in mind. And it's a it's a rule or requirement that not many drafters of grounded grounds of appeal in civil courts here to regrettably so keep it no longer than necessary. Specify whether your ground is attacking a finding or fact or a conclusion off law and try and fit it within the Section seven Off the end. 161 Well, the grounds of appeal need to do is they need to be able to convince the reader i e. A judge who's going to be deciding the application for permission to appeal on the papers. Initially, they've got to convince that judge that the decision of the lower court was wrong or, alternatively, that there have bean a serious error off procedure or some other serious irregularity in the proceedings. And that test, of course, is from CPR Rule 52 0.21 subsection three. And they're in mind, of course, that the wording off that rule is quite important. It specifies a serious procedural or other irregularity. So not just any lapse of procedure. You can't just go to an appeal court and argue about the fact that the judge was 10 50 minutes late unless it would have had a material impact on the outcome off the proceedings. So, Berryman, you're looking for serious Errol process here. So once you've got all that in mind. It's important also to consider that on appeal. The appeal court, generally speaking, will be conducting what we call a review off the lower court's decision. It's not generally on opportunity to re hear the case. It's more looking at the lower court's decision in some depth and detail, going through it to see whether there has bean any error as alleged by the grounds of appeal. There are some circumstances, however, where an appeal court may adopt an approach off re hearing the case. Andi, essentially, that will happen when the court feels that it's necessary in the interests of justice. I'm afraid there isn't really much more clarity than that. These are the sorts of distinctions of process that have to be worked out on a case by case basis. But it's perhaps worth considering on behalf of your client, whether or not the client's case will be better, better at served by an appeal court re hearing the case or simply reviewing the lower court's decision. Bear in mind, of course, that the default position is that your client is getting a review not to rehearing, so usually no further evidence that is required. And that brings me on to the next area off discussion, which is that in general terms, the default rule is that no new evidence will be permitted without the permission off the appeal court. It's not an opportunity, despite what some people try to do with appeals to relitigate the same points toe have another chance to provide further evidence or to try again with the same evidence. That's not what the appeals system is set up for, and the CPR discourages that sort of approach. And so, in Rule 52.21 subsection two, you'll see there the restriction on fresh evidence. Fresh evidence can only be admitted that the permission of the court on in the background but is the pre CPR test derived from the the old but still good case off lad on Marshall, which no doubt you'll be familiar with, goes back to 1954 Andi, essentially the three components to the test. First of all, the person seeking to admit the fresh evidence has to show that the new evidence wouldn't have Bean obtained with reasonable diligence by the advisers at trial. The evidence should be off the kind that if it's given, then it would probably have an important influence on the outcome off the case, although it doesn't need to be sort of decisive evidence and then, finally, that the evidence must be such that it's presumed to be believed. So it should be apparently credible evidence, not just someone say so if they're not independent and objective witness, though, of course, the new evidence doesn't have to be sort of completely overwhelming or incontrovertible. So those three pillars of the Latin Marshall test still loomed pretty large in the considerations of courts these days around whether or not to admit fresh evidence. But the general rule is it's not done on. It's difficult to do the other things bare mind is that there are some restrictions on the points that you can take in the grounds of appeal, that the first point is that if your case has Bean argued in a certain way at the lower court and you've not presented arguments off, let's say a particular piece of legislation or you're not argued a particular form of defense the first time around, you're probably not going to be able to get away with raising that defense or raising that piece of statues later on at appeal that will probably find will mean that you and your client face a bit of a headwind in terms of presenting that argument. There is one exception to that, though, which is that if your new argument is what's known as a pure point of law, in other words, if it's simply a slightly different interpretation or takes into account recent developments or other areas of law that might impinge or might have impinged upon the judge's decision, then that may well be acceptable by the Appeal court. Again, it's very fact specific, very much worked out on a case by case basis. But just beware that when you're raising something new a new point, you may well find the court and all your opponent coming back with Hang on a second. You didn't argue this below, so be prepared to meet that argument. Should you have a good reason for taking the new point? So in practical terms, then is you could probably see from some of this discussion. It really, really helps in terms of drafting your grounds of appeal, making sure they're in the right format in the right way to have a good, thorough note off the judgment off the court below. If it wasn't handed down in writing and normally in the county court, you don't get a written judgment. The importance of a good note can hardly be overemphasized, because once you have a good note, of course, if you only got a limited time window in which to ask for permission to appeal if you haven't asked for that at the hearing at which judgment was delivered in the lower court. So in order to make the best use of that limited window of time, if you've got a note of the judgment, you can simply go back to that. Analyze in detail the reasons provided by the judge in the adequacy of those reasons or lack of had a Chrissy Andi thereafter. Adviser client and thereafter Draft your grounds of appeal. Get the appeal notice in within the deadline. If you haven't got a note of the judgment, well, you probably in a bit of a risky scenario, because you will have to go on the basis of whatever the advisor, all participants in that hearing are able to tell you, the judge decided on and the reasons given by the judge at that hearing. It was always very risky. You can try to obtain a transcript. The court system is pretty over birth these days with administrative matters. Andi, it hasn't an ever decreasing amount of resources. It seems to deal with these sorts of requests on. So you could be waiting for quite some time if you were just requesting a transcript. Best not to rely on the fact that proceedings air recorded in court. Take your own notes off the judgment. Or make sure that the advocate you've instructed to attend that the hearing takes a good and detailed note off that judgment that will put you in a far better position when it comes to drafting your grounds of appeal. Now, when it comes to the substance of your grounds of appeal, this is where I guess it gets a bit more interesting in a bit more amorphous because there are on infinite ood, off different legal or factual or discretionary errors that a judge might make. Of course, not every error will necessarily give rise to a successful appeal, and so it's very much a case of carefully analyzing both the nature of the proceedings and the nature of the case before the judge, as well as the judges application of the law on reasoning and exercise of any discretion. But what I want to do in this section of the Webinars to just very briefly give you a few hints. A few nuggets off some of the more common arguments on appeal. Now, of course, this is not exhaustive. It cannot hope to be because, as I said, there's just an expansive range of ways in which things can go very wrong. At first instance judgment. So the test then we've got to have in mind is, as I said, that the judge has gone wrong or committed a serious procedural or other irregularity. Against that backdrop, some of the more common grounds of appeal are as follows. Festival, If you're clients, tells you, hang on a second. The judgment got this date wrong and that person's name wrong and the that the allegations relating to this misconduct was completely wrong. Well, that may well formed the basis off, arguing on appeal that the findings of fact by the judge are incorrect when you're arguing that what you've got to consider is that an appeal court will generally give the lower court a degree off a deference in terms of its assessment off the facts. Because bear in mind, we're talking about a review hearing by the Appeal Court, where the Appeal court does not have the benefit of hearing live evidence from witnesses, something which the first instance Judge might well have done. However, of course, if the first instant judge is making, let's say, a case management decision on hasn't heard live evidence tested by cross examination conducted the hearing in a summary manner hearing, which lasted 30 minutes, Will then there's perhaps a bit more scope for an appeal court to say we're going to depart from the factual findings made by the judge because they haven't Bean fully tested, fully ventilated in a hearing with full evidence so again depends on the circumstances with procedural or other irregularities. And unfairness is the key thing to bear in mind is that some examples off this include where let's say, a judge has taken a decision but not provided the relevant party or parties with a fair opportunity to present their submissions in opposition or otherwise on any given application. So that would just be unfair and contrary to the right to a fair trial, the right to a fair disposal. Off civil matters, however, something that we see quite often and particularly tribunals, is that judges will come straight into the tribunal room on. They might start off with an indication that they're not really feeling the grounds of appeal or the application, which is being made by the claimant all. Whichever party it happens to be. Does that mean the judge has predetermined the issue? Does that mean this a party or parties being deprived off their federal rights and off procedural fairness? Not necessarily because a judge is entitled to do pre reading? Of course. In fact, it's something I very much encourage and welcome from judges. Given the scarcity of judicial resources and time these days, it's a welcome thing for judges to read into cases is also helpful at times for judges to let the parties know what they're thinking, and at the outset, that is probably quite a good opportunity to do so. But of course, the way in which that's done is important. Andi, the proper way of doing that is for a judge to explain in relatively neutral terms that they've got a provisional view, which is that they think the application is going to win or going to fail on to then provide the party who's trying to persuade the judge otherwise with a fair opportunity off. Doing so that creates a bit more of a two way street on is highly unlikely to form the basis off a procedural unfairness on appeal. Moving on with God's, another category off appeals, which is situations where a judge has looked at a range of factors when coming to a decision, Let's say a decision on striking out a statement of case or decision on whether a particular form of conduct is an abuse of process. Something like that. One of these sort of complex, multi factual tests in those situations. There will be some difficulty on appeal in overturning decisions like that, because there's quite a lot discretion built into them. However, if you can show, for instance, that the judges clearly stacked up the the weights in a completely unbalanced way on has failed to consider material evidence that ought to have been balanced in on the other side's favor, then that may well form the basis of a successful challenge to the judges. Exercise off discretion. But ordinarily appeal courts will tend to allow the first judge or the lower court's judge a wide margin off discretion. Essentially, you know, the appeal court will say that that their issue is that designed whether the exercise of discretion by the lower court fell within the ambit off, reasonable decisions that could have been taken on the basis of the information before the lower court. So we come back to this test of reasonableness and rationality, which is generally speaking quite a high threshold as imported from all of the learning in the judicial review context. So you may find these types of appeals difficult toe win, then moving on. We've got grounds of appeal where, for example, a judge has not given any reasons or has given very inadequate reasons. These cases tend to be again very fat sensitive. You know, a small claim in which there's a dispute of a very small sum of money, uncomplicated law, uncomplicated facts is not going to require reasons to the same extent as a multi track complex, 70 day trial in the Technology and Construction Court and overturning those thoughts, sorts of decisions on the basis off inadequate reasons is going to be quite a challenge if you're up against the TCC judgments. So it's particular to context is particular to the facts of the case. There's no general duty on a judge to address every single point that's made by either party. It might be sensible to attempt to do that. In most cases, I'm but the commission off addressing one or two points made by a party if there no absolutely fundamental points to a case, is hardly going to give rise to a successful appeal. But the key principle here is that a judgment or statement of reasons needs to communicate to each party the reasons why they have won or lost as it may be, and in doing so to show the principles on which the judge has acted upon. And that's a really useful guidance from a case in the immigration context called Are Iran. I've provided you with the citation for that in the Webinar Notes and Reference sheet, which itself refers to the case off a classic case of English and Emery Rhyme, Bold and Strick. That's 2002 case again, on reasons very helpful Decision Toe have tucked away on any reasons challenge so that you can address some of the points about the principles that apply in these sorts of cases. Bear in mind that there is also a duty on representatives who were present at the handing down of a judgment to highlights. Any factual inaccuracies highlight any inadequate reasons provided by the judge. That may will be quite a difficult task to do whilst you're taking down a note of the judgment. But it is better to address that at that stage so that the judge can provide further reasons or respond to any perceived inadequacies that could save time on Could short circuit the process off a later appeal? Let's say if the judge amends their reasons to deal with arguments that one or other of the parties have made, it will then make it much harder for that party to complain on appeal that those reasons are inadequate on delay. Sometimes there could be a delay, often a significant one between the hearing of a case in the handing down of judgement, if there is, that does not in itself amount to grounds for an appeal. However, it's always preferable for judges to deal with matters when they're fresh in their minds. And if there's any creeping sense that the judge has essentially for gotten key parts of a case than that again needs to be challenged or can well be successfully challenged on appeal, there's no automatic rule that, after a certain period of time or delay that a judgment must be unsustainable. Finally, I'll just finish off with one more example off its non exhaustive list of grounds of appeal will be oversee and I promise you. And that is the breach of convention rights. If a court conducts itself in a way that either its proceedings or its case management or its judgment results in the breach off a convention right under the European Convention on Human Rights, that may itself formal, independent ground off appeal and that principle emerges from the recent Court of Appeal case off re w. A child. That's a 2016 Court of Appeal case of rising from family court proceedings. We touched on it in part one already because this is the rather unusual case in which police officer and social worker appealed against some adverse findings against them as witnesses in family court proceedings. They weren't actually parties to the proceedings in that case, that police officer in the social worker won their appeal on the basis that the judgment constitutes a judicial act, therefore, engages the Human Rights Act 1998 on, therefore needs to be a consistent with and respect protected rights under the European Convention. And the Court of Appeal confirmed specifically in that judgment that there is an existence of a right of appeal on the grounds off, breach off human rights through the acts or omissions off a court or tribunal. Now that is one to watch. I think whether or not it will be around for much longer, given the government's intentions in relation to the Human Rights Act, is another matter and perhaps a matter for another webinar. Thank you so so much for listening to this webinar. I hope you found it useful. I hope you enjoy the Siri's that this webinar is apart. Off rate the webinar raper. Siri's we got got a system of star ratings. I believe in you can leave comments as well to provide some more feedback and really appreciate that from, uh, any listeners and viewers. See what you make of the reference sheets on the quiz afterwards, and I will see you in Part three off the Siris, in which we tackle the process and the law on permission to appeal what it is and how to get it. Thanks so much. See again by
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