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The Appeal
The Appeal
Approach in Law
On an application for permission to appeal, the test is whether the grounds are reasonably arguable.
CPR r.52.21(3) provides that:
“The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.
As to (a) a decision may be wrong if (i) the judge erred in law; (ii) the judge erred in fact; (iii) erred in the exercise of discretion. (i) and (ii) are relevant to the Grounds of Appeal advanced.
It is trite that questions of law fall squarely within the purvey of legitimate interference by an appeal court if the judge has fallen into error.
As to an error of fact, it is well established that the circumstances in which an appeal court will interfere with findings of fact by the trial judge are limited. A recent summary was given by Lord Justice Lewison inVolpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48:
The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
The adverb 'plainly' does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
As to the third ground, procural unfairness may also legitimately give rise to a ground of appeal.
An error of law of fact has to be material. If the outcome of the case would be the same irrespective of the error, an appeal will not succeed.
In respect of procedural or other irregularity, it must (a) be serious; and (b) render the decision unjust.