Sometimes a case doesn’t go the way you expect at court. Judges do make mistakes. What to do next and whether to appeal a decision can be a significant and often difficult decision. Our team has many years of experience helping clients with appeals and set aside applications.
Judges (and the Court they sit in) are not perfect. If they were perfect, they would not be human – we all make mistake, errors or perhaps do not have the correct material available to reach a fair decision.
As a result, not all judgments and orders made in proceedings are an accurate reflection of the common law. If they are not questioned, then they may become the law until overturned. If overturned, then the reason for overturning that decision itself becomes the common law.
Can you appeal a court decision?
It is the principle of fairness in civil litigation proceedings and the human rights (applicable to humans and the companies which those same humans run or have an interest in) of parties that have led to the development of a system whereby a party(s) may seek an order to overturn a judgment, or part of the judgment.
These options comprise the ability to
- set aside an order, which effectively reinstates the previous proceedings (and all evidence, pleadings, claims and applications etc) but sets aside the judgement or final order made; and
- appeals which are a reconsideration of a decision, by the same Court (for the High Court) or more senior Courts, by a more senior judge (or panel of judges) to decide whether the common law (and any legislation applicable to the claim or decision) was correctly applied.
These types of application can be costly and will be quickly disposed of if carelessly brought or there are no merits to the application
Our team at Francis Wilks & Jones can help you avoid common pitfalls and properly assess what options are properly available to you.
Appeals – permission to appeal
An appeal is an application within the same proceedings that the Order being appealed is subject to. An appeal is inappropriate for procedural errors or criticisms of the form of the order, which fall outside of the legally pleaded case and the application of the law by the Judge.
- an appeal cannot be made by anyone unhappy with the order made against them (or any part of an order made, even where the order is in their favour) as this is a very serious process and enabling a multitude of appeals could undermine the integrity of the UK’s legal system.
- accordingly, to filter out only the properly brought appeals, the Civil Procedure Rules require that permission first be sought by the appealing party(s).
- permission is often sought at the hearing where the order was originally made and it will rarely be the case that such permission is granted – a judge who has just reached a well-considered judgment is unlikely to immediately agree to grant an application to overturn it.
After the order permission may then be sought, on paper within 21 days. This will be considered on paper and, if the Judge considering the appeal decides the grounds of appeal has merits, may grant permission. Otherwise it is rejected, and the only remaining option may then be to seek an oral hearing (where the same merits test will be considered). If this is successful (on paper or at the oral hearing) then the appeal proceeds. If both dismiss the permission application, then that is the end of the road for the prospective appellant.
Appeal – the risks
Once you have permission to appeal then the appeal continues, with the original grounds of appeal taking centre stage (in part or wholly dependant on which parts you were granted permission to appeal). Your opponent will then have an opportunity to respond and there will then be the appeal hearing.
- appeals can only be brought on the grounds of a mis finding of fact or law, any decisions made by a Judge exercising their discretion (including their opinion as to whether a witness was truthful or not) cannot form a ground of appeal.
- where a party appeals part of an order there is of course a risk that the Court may review the entire order and amend other parts (which the appellant may not want amending) and thus it is vital that anyone appealing an order take detailed advice when preparing their grounds of appeal.
Set aside application
A set aside application is an attempt to set aside / reverse any decision of the judge in the proceedings – it does not seek to question the veracity of the legal basis for the order and does not invalidate all documents filed so far.
A set aside application is normally brought because of procedural errors or where it would be unjust for the order to stand.
This application could alternatively be brought as an application to vary an order made but otherwise the principal reason to issue such an application is where it is considered that a defendant has not properly been allowed to defend the claim, in accordance with the access to justice under the European Convention on Human Rights.
Setting aside a statutory demand
A Statutory Demand is a formal demand for repayment of a debt and is an out of Court process where, if the sum demanded is not paid within 18 days, after 21 days a bankruptcy or winding-up petition may be presented against an individual or company.
- where an individual has received a statutory demand and disputes the debt is due (as disputed debts should not be subject to bankruptcy proceedings) then they can apply to Court for an Order setting the Statutory Demand aside.
Our separate webpages on Statutory Demands and setting aside a statutory demand provides more information on this process and how we can assist you in either bringing or defending a set aside application (which has its own legal intricacies).
Sometimes a final order or judgment is made against a party without them being present or properly on notice of the hearing (or the proceedings generally). Where a party has not responded then the Court may assume they are not engaging or defending the claim, and hand judgment down in the absence of a defence.
The reasons for a lack of response are, however, varied.
- the defendant could have moved home;
- there could have been a mistake in the address details; or
- (very occasionally) a claimant may not have served them.
Our debt recovery team can assist you if you have a default judgment and are considering an application to set aside the order made against you.
A common reason for seeking a default judgment maybe where a strike out application or an application for summary judgment has been made – please see our webpages which deal with these areas. Where such an application has been made, and default judgment is sought and obtained, these provide automatic grounds for seeking a strike out of an order.
At Francis Wilks & Jones we are regularly involved in assisting clients who may be seeking permission to appeal or who are already involved in an appeal and we can have a comprehensive knowledge of what is required to be successful. Contact us to find out more
I was greatly impressed with FWJ. Their commercial approach combined with specialist knowledge and tactical expertise was pivotal in the claim being dropped and costs recovered in full.A company director
Commercial litigation and dispute resolution
Recovering, at trial, all monies owed by a professional body which continuously paid their invoices late
Our client, an individual, needed help dealing with a professional body they had been providing services to for a number of years. The professional...