Time limitsThere are strict time limits in force for appeals which should be adhered to as out of time appeals can be difficult to proceed successfully with unless there are persuasive reasons why your appellant’s notice (N161) or appellant’s notice (FP161) was delayed later than 21 days or 7 days depending on the type of hearing you are considering appealing. For Final Orders (orders intended to end litigation) you have 21 days. For interlocutory orders (case management) it is only 7 days. Although we do see at times appeal courts accepting out of time appeal applications if there are what they consider reasonable excuses but please do not rely on this. Far better to file your Appellant’s Notice (N16 or FP161) within 3 weeks or 1 week as necessary and not take any unnecessary risks.
Appeal documentsSome of the documents required will be an appellant’s notice (N161 or FP161), skeleton argument, grounds of appeal, copy of the order in question, copy of the order giving or refusing permission to appeal, witness statements or affidavits, transcript or note of the judgment or written reasons for the court’s decision. Some of these documents do not have to be filed with the Appeal Court within 21 days or 7 days and can follow later but it is usually vital to file the appellant’s notice (N16 or FP1611) within 3 weeks or 1 week depending on the type of hearing you wish to appeal. It cannot be stressed enough, how important it is usually to have a comprehensive accomplished skeleton argument that will often need to refer to authorities (case law, statutes), to give you the best opportunity to persuade the appellate court your application has merit.
Broad area of discretionJudges have a broad area of discretion in fact finding hearings and in final hearings regarding child relationships and financial matters, meaning they can very often make decisions which can be seen by many as not at all reasonable in the circumstances. This broad area of discretion means it can be difficult to successfully appeal. It is this broad area of discretion which is in place it seems to effectively discourage appeals, particularly when the case was a close call on the available evidence before the judge. The judge you appeal to (the appellate judge) has to be convinced that the trial judge got it wrong and it likely has to be grossly wrong for an appeal to succeed. The standard expected is that decision/s have to be fundamentally wrong on the evidence before the trial judge at the time of the hearing. We are aware of plenty of appeals that would appear quite strong but are not ultimately successful, although we are also aware of some appeals which on the face of it seem unlikely to succeed but are eventually successful. In the end it very often comes down to the appellate court’s subjective view.
Permission to AppealPermission to appeal is presently required for decisions made by district judges, this should be made orally at the hearing although it can be made later. Permission is generally denied by the district judge, it is important to note that this does not stop you moving forward with an appeal. Once you have filed your paperwork with the court, permission is again asked from the appeal court which can be refused based only on the paperwork submitted and without a hearing, although this is generally only if the application to appeal has been filed outside of the 21 days. Permission can then be sought to request a hearing for the decision to be reconsidered, this has to be done within 7 days. Many appeals at reach a Permission to Appeal hearing, which is before the appeal judge, where s/he will have read your bundle, including your skeleton argument and grounds of appeal. The hearing is usually quite short with the judge generally hearing any submissions and asking questions about the application. The judge will then inform you by way of a short judgment if s/he believes your application has a good chance of success or not. If the appeal judge is persuaded that you have a real prospect of success with your appeal, the matter will usually be set down for an appeal proper, where the respondent will be asked to attend and provide any submissions.
Permission granted or refused without a hearingIf permission is granted or refused without a hearing, the reasons for the decision will be provided in writing. The appellant has the right to have a written refusal be heard at a oral hearing, a request for the decision to be reconsidered at an oral hearing must be filed at the appeal court within 7 days after service of the notice that permission has been refused. However the appellant has no right to have the application considered at an oral hearing where a High Court Judge or Designated Family Judge refused permission to appeal without a hearing and made an order under rule 30.3(5A) that the appellant may not request the decision to be reconsidered at a hearing because the High Court Judge or Designated Family Judge considered the application for permission to be totally without merit.
Real prospect of successPermission to appeal should according to the Family Proceedings Rules 2010 only be given where the permission to appeal court considers that the appeal would have a ‘real prospect of success’ or there is some other compelling reason why the appeal should be heard. The definition of “real”, meaning the prospect of success must be realistic rather than fanciful according Mr Justice Moore in AV v RM  EWHC 1173 (Fam).
CostsIn most cases permission to appeal hearings do not require the attendance of the respondent or submissions from them. Therefore there will be not be a risk of any costs being made at a permission to appeal hearing against the appellant. However, please note that some appeal courts will list the permission to appeal hearing with the respondent to the appeal, invited to attend and/or provide a response skeleton argument, if this occurs then there is a potential risk of costs against the appellant if the appeal is not successful. Costs are usually confined to being part of, or the full cost of the respondent’s representatives costs. Should the matter go to an appeal proper where the respondent may provide submissions and/or attend, then there is a risk that costs may be awarded if the appeal ultimately fails. Please note that the appellate judge at the permission to appeal hearing will only allow an application to appeal to move forward if there is a real prospect of success at the appeal proper. This is not a guarantee of success ultimately with an appeal though, but it is a strong indicator that at least one judge believes you have a good chance of being successful.
Which Appeal CourtAppeals against decisions made in the magistrates court are made to the circuit judge; district judge of a county court to the circuit judge; district judge of the high court, principal registry of the family division and costs judges are made to the high court; circuit judge, recorder and high court judge are made to the court of appeal.
Limits of an Appeal CourtAppeal courts limit themselves to a review of the decision of the lower court unless a particularly category of appeal or the circumstances of the appeal it is considered in the interests of justice to hold a re-hearing. The appeal court will not usually hear oral evidence or evidence which was not before the lower court. The appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may draw any inference of fact which it considers justified on the evidence. A party may not rely on a matter not contained in that party’s appeal notice unless given permission by the appeal court. If an appeal is considered to raise an important point of principle or practice or there is some other compelling reason for the court of appeal to hear it, the relevant court may order the appeal to be transferred to the court of appeal.
Alternatives to an AppealAn application for a review or rehearing e.g. where a party did not turn up for a hearing or subsequent evidence is available in which the aggrieved party is not at fault for not bringing this evidence to light at the trial. This is where you refer the matter back to the trial judge if you are not happy with the decision and might be the way to proceed rather than an appeal at times. Interim orders or interlocutory orders are usually not easily appealed successfully but it depends on the circumstances. A Judicial review is a challenge to the powers of the public authority; or the way in which the public body (a decision-maker) exercises, or fails to exercise, its powers. Judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
We can assist you regarding a family law AppealWe can assist you to decide if an appeal is the right route to take and how best to put your case forward to the appellate judge in order to get the best chance of success in your appeal as circumstances allow.
See some of our many Success StoriesPractice Direction 30a – Appeals
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