ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
the High Court. Further appeals lie to the Court of Appeal, before potentially finally being heard in the UK Supreme Court. In certain circumstances, it is pos- sible to appeal to the court or judge above the one to which the appeal would ordinarily progress, which is known as “leapfrogging”. 10.2 Rules Concerning Appeals of Judgments There are detailed procedural rules governing the appeal process. In most cases, permission to appeal is required. This permission is typically sought from the court whose decision is being appealed or from the court to which the appeal lies. For first appeals, permission will generally only be granted if the appeal has a real prospect of success or if there is some other compelling reason for it to be heard. For second appeals (ie, appeals from a deci- sion made on appeal), the test is stricter: permission will only be granted if the appeal has a real prospect of success and raises an important point of principle or practice, or if there is some other compelling reason for it to be heard. 10.3 Procedure for Taking an Appeal The procedure for taking an appeal involves filing a notice of appeal and, where permission is required, an application for permission to appeal. These must be filed within the timeframe prescribed by the court that made the decision appealed against, or otherwise within 21 days from the date of the decision being appealed against. To appeal from the Court of Appeal to the UK Supreme Court, a party must first seek per- mission to appeal from the Court of Appeal itself. If permission is refused, an application for permission may then be made to the Supreme Court within 28 days of that refusal. 10.4 Issues Considered by the Appeal Court at an Appeal Generally, the appeal court will only review the first instance decision on the grounds that the judgment was either incorrect – due to an error of fact or law, or the exercise of the court’s discretion – or unjust because of a procedural irregularity or other serious issue.
Litigants are expected to raise all relevant points during the original proceedings. However, with the court’s permission, there are circumstances in which new points can be introduced on appeal, particular- ly if these points pertain to new evidence that has become available and could not reasonably have been obtained during the first instance. 10.5 Court-Imposed Conditions on Granting an Appeal The court can impose conditions when granting an appeal, and these conditions will depend on the cir- cumstances of the case. The court may require the appellant to provide security for costs, impose time limits for submissions, grant a stay of proceedings or limit the grounds on which the appeal can be pursued. 10.6 Powers of the Appellate Court After an Appeal Hearing After hearing an appeal, the appellate court may allow or dismiss the appeal, either wholly or partially. This may involve upholding the original decision, reversing it, remitting the case or part of it to the lower court, modifying the decision and/or awarding costs. Since the appellate court has general control over the mat- ters covered under the scope of the appeal, it can make any order that it considers the lower court ought to have made regarding those matters. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The general rule is that “costs follow the event”, which means that the unsuccessful litigant is liable to pay the costs incurred by the successful litigant (in addition to its own legal costs). In practice, the court has broad discretion in the matter of costs. As a more unusual example, the court may even order a non-party (such as a litigation funder) to pay costs if it considers that to be appropriate. Once the court has decided who is to pay costs, the next step is to quantify the amount of those costs. Unless litigants can reach an agreement, the court will assess costs with a view to ensuring that only those that were reasonably (and, in most cases, proportion-
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