Conducting an appeal in the County Court or the High Court

Conducting an appeal in the County Court or the High Court

The following is an extract from a LexisPSL Practice Note. This note was first published in September 2014 and updated in May 2019. It is not maintained on the blog. For our latest guidance, subscribers should go to LexisPSL. If you’re not a subscriber, click here to take a free trial. 

This Practice Note gives guidance on conducting an appeal in the County Court and the High Court under Part 52 of the CPR. It contains guidance to the provisions contained within CPR PD 52B. It looks at the court’s case management powers including hearing appeals in the absence of a respondent. How applications in an appeal may be determined (including any scope to request a hearing or that any order be varied or set aside) is also covered along with skeleton arguments, the appellant’s documents and the respondent’s supplemental appeal bundle and dismissing applications or appeals by consent.

General provisions on appeals are contained within CPR PD 52A. As such, this Practice Note should be read in conjunction with other Practice Notes giving general guidance on appeals being conducted under CPR 52 and its accompanying Practice Directions in subtopic: Appeals: general and preliminary considerations.

This Practice Note has been updated with the changes to Part 52 which were brought into effect in October 2016, to which transitional provisions apply. Part 52 of the CPR is subject to transitional provisions.

In addition to all and any relevant CPR provisions, practitioners should also comply with any provisions in any court guide applicable to the division in which the case is proceeding, see Practice Note: Civil appeals—court specific guidance.

Starting an appeal in the County Court and High Court

For detailed guidance on commencing appeal proceedings in the County Court and High Court including the Forms (N161 and N164) and the contents of the appellant’s notice, see Practice Note: Starting an appeal in the County Court or the High Court.

Appealing to the County Court and High Court—case management

The appeal court may make orders or give directions for the case management of an appeal (CPR PD 52B, para 5.1). This includes directions for the determination of an application to vary or set aside an order made without a hearing/without hearing from the respondent (CPR PD 52B, para 7.4(b)).

When making a case management order, the court may dispense with any requirements of or directions made in CPR PD 52B (CPR PD 52B, para 5.2).

Hearing an appeal in the absence of a respondent

The High Court has the power to dispose of the appeal in the absence of the respondent. In general terms, CPR 52.20 provides that the appeal court has all the powers of the lower court and CPR 39.3 provides for the court to proceed with a trial in the absence of a party.

Where the court has encountered difficulty applying this principle is where it is dealing with an appeal governed by specific statutory provisions (statutory appeals) which do not provide for the appeal to be heard in the absence of the parties. CPR PD 52D, para 4.2 provides that CPR Part 52 applies to such appeals.

Applications within the appeal

The parties may wish to make applications in the appeal. The sorts of applications that a party may wish to make might include applications:

  1. for permission to appeal
  2. for an extension of time in which to file an appeal notice
  3. staying execution of the order under appeal. A stay of the order under appeal is not automatic and will need to be applied for. This could be particularly important where, eg, the order under appeal requires the payment of money
  4. for permission to introduce and rely on new evidence (ie evidence which was not before the lower court). In this case you will need to explain to the appeal court why this evidence was not before the lower court
  5.  for permission to adduce oral or expert evidence
  6. for security for costs (pursuant to CPR 25.15)
  7. to set aside or vary orders which were made in the appeal without the respondent having been heard (pursuant to CPR PD 52B, para 7.3)
  8. for an order dispensing with service
  9. that a transcript of the lower court should be obtained at public expense

Determination of applications within the appeal

Any application to be made in the appeal should be made in the appellant's or respondent's notice (appeal notice) (CPR PD 52B, para 4.3). Where they are not set out on the appeal notice, they must be made in accordance with Part 23 and must be filed in the relevant appeal centre (CPR PD 52B, para 2.1).

Parties should consider at an early stage whether there are any applications they may wish to make in the appeal notice.

Where the time for filing an appellant's notice has expired, the appellant must include an application for an extension of time within the appellant's notice as opposed to on a separate application (CPR PD 52B, para 3.2).

For detailed guidance, see Practice Note: Starting an appeal—general provisions—Can time to appeal be extended?.

How will an application to be made in an appeal be determined?

When determining applications, the appellate court has all the powers of the lower court (CPR 52.20(1)).

Applications made in the appeal may be determined with or without a hearing. This also applies to any applications for permission to appeal made by the appellant or the respondent (CPR PD 52B, para 7.1).

Can a party request a rehearing of an application determined without a hearing?

Where an application (other than an application for permission to appeal) is refused without a hearing, any party affected by the determination may apply to have the order set aside or varied (CPR PD 52B, para 7.3), providing (CPR PD 52B, para 7.4):

  • that request is made within seven days of the 'requesting' party being served with notification of the determination
  • a copy of the request or application is served on all other parties at the same time as it is made

Where it is an application for permission to appeal which has been determined without an oral hearing, the appellant or, where appropriate, the respondent has the power to request that the application be reconsidered at an oral hearing on the same conditions, see CPR PD 52B, para 7.3 and Practice Note: Starting an appeal in the County Court or the High Court.

The court will give directions for the determination of the application in a hearing (CPR PD 52B, para 7.4(b)).

Where the court has made an order granting or refusing an application for an extension of time to file the appellant’s notice without a hearing, any party seeking to set aside or vary the order may apply for a hearing within 14 days of service of the order (CPR PD 52B, para 3.3).

Appeal bundles and the respondent’s documents

The appellant prepares the appeal bundle containing the documents relevant to the appeal. The appellant must serve this on the respondent within the time limits set out in CPR PD 52B, para 6.5. These time limits are by reference to the determination of any application for permission to appeal. For further information, see Practice Note: Appeals to the County Court or the High Court—the appeal bundle.

If the respondent considers that relevant documents are missing from the appeal bundle, they may prepare a supplemental appeal bundle containing copies of other relevant documents. This should be filed and served on all the parties as soon after service of the appeal bundle as practicable but, in any event, not less than seven days before the hearing (CPR PD 52B, para 8.2).

Filing skeleton arguments in appeals in the High Court or County Court

Where the appeal is to the County Court or the High Court, CPR PD 52B, para 8.3 specifies that skeleton arguments should only be filed when 'the complexity of the issues of fact or the law in the appeal justify them or they would assist the court in respects not readily apparent from the papers in the appeal'.

For appeals proceeding in the County Court or the High Court, the appeal bundle, containing a copy of the appellant's or respondent's skeleton argument among other things, must be filed as soon as practicable, but in any event within 35 days of filing the appellant's notice pursuant to CPR PD 52B paras 6.3 and 6.4(1)(c) respectively.

Dismissing applications or appeals by consent

Where an appellant no longer wishes to pursue an application or an appeal, they may request that the court dismiss it. Note: such a request, if granted, will usually be subject to an order that the appellant pays the costs of the application or appeal as appropriate (CPR PD 52A, para 6.1). If the appellant wishes to have the application or appeal dismissed without costs, the request must be accompanied by a letter signed by the respondent confirming his consent (CPR PD 52A, para 6.2).

Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the court for the application or appeal to be dismissed by consent. If the request is granted, the application or appeal will be dismissed (CPR PD 52A, para 6.3).

Order of appeal court

Note: where the appeal is from the County Court to the High Court, the party entitled to the benefit of the order of the High Court must deposit the order or an office copy entry of it in the office of the relevant hearing centre of the County Court from whose decision the appeal as made (CPR 40.14B in force as from 6 April 2014).

Extract from LexisPSL Practice Note: Conducting an appeal in the County Court or the High Court.

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