Appealing a Civil Judgment in England and Wales

The conversation after an unsuccessful trial follows a predictable course. The client is certain the judge did not understand the evidence, misread a critical document and preferred a witness who was plainly untruthful. Every one of those complaints may be well founded. None of them is, without more, a ground of appeal.

An appeal in England and Wales is not a second trial. It is a review of the decision below, conducted on the material that was before the judge, in which the appellant must show that the decision was wrong or that it was unjust because of a serious procedural or other irregularity. The appellate courts have spent a quarter of a century making clear how narrow that is, particularly where the complaint concerns findings of fact.

This guide sets out the permission filter, the deadline that ends most appeals before they begin, the standards applied to findings of fact, discretion and law respectively, and the honest assessment that should precede any appellant's notice.

Permission, and the two opportunities to obtain it

Almost every civil appeal requires permission. Under CPR 52.6 the court will give permission only where the appeal would have a real prospect of success, or where there is some other compelling reason for the appeal to be heard.

"Real" means realistic as opposed to fanciful. It is a modest threshold in principle and a demanding one in practice, because the appellant must show a real prospect of persuading an appellate court not merely that the outcome was doubtful but that the judge fell into an error of the kind the appellate jurisdiction exists to correct. The alternative limb — some other compelling reason — is reserved for cases where the point is of general importance, or where something has gone conspicuously wrong with the process, even though the individual prospects are not strong.

Permission may be sought twice. The first application is made orally to the judge who gave the decision, immediately after judgment. It is refused more often than not, but it costs nothing, it preserves the position and it sometimes elicits an explanation that either strengthens the grounds or ends the matter. If refused, the application is renewed in the appellant's notice to the appeal court, where it is considered on the papers, with a right in most cases to renew orally if refused.

Twenty-one days

The appellant's notice must be filed within twenty-one days of the decision appealed against, unless the lower court directs otherwise. If more time is needed, ask the judge for it when judgment is handed down; an extension granted then is a matter of routine, and an extension sought afterwards is not.

An application to extend time after the period has expired is treated as an application for relief from sanctions, and the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906 applies: the court considers the seriousness and significance of the breach, why it occurred, and all the circumstances so as to deal with the application justly. Appellate courts have consistently held that the merits of the underlying appeal carry little weight at that stage, and that shortage of funds, difficulty in obtaining a transcript and the pressure of other work are not good reasons. A litigant who has taken a month to think about it, then a month to instruct counsel, is unlikely to be forgiven.

Note also what an appeal does not do. Filing an appellant's notice does not operate as a stay of the order below. Unless the lower court or the appeal court grants a stay, the judgment remains enforceable and the successful party is entitled to act on it.

Where the appeal goes

The route depends on the court and the judge who made the decision, and it is prescribed rather than chosen. Broadly, an appeal from a district judge in the County Court lies to a circuit judge; from a circuit judge, to a High Court judge; and from a High Court judge, to the Court of Appeal. Appeals in specialist proceedings and in certain claims allocated to the multi-track go directly to the Court of Appeal, and there is a leapfrog procedure permitting an appeal to go straight to the Supreme Court where a point of general public importance arises and the conditions are satisfied.

The architecture, and the permission culture that accompanies it, was explained for practitioners in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, which remains a useful starting point notwithstanding subsequent amendment of the destinations.

The standard of review

Everything turns on what kind of decision is under attack, because the appellate court's willingness to interfere varies enormously between the three categories.

Findings of fact

This is the hardest ground of all, and it is the ground most appellants want to run. The trial judge saw the witnesses, read the documents in sequence and formed a view of the case as a whole; the appellate court has a transcript and a bundle. Lewison LJ collected the principles in Volpi v Volpi [2022] EWCA Civ 464, and they are worth stating because they are so frequently ignored:

An appeal on a question of fact succeeds only where the finding was rationally insupportable — where there was no evidence to support it, or where the judge plainly misunderstood the evidence.
The appellate court does not retry the case. It does not ask whether it would have reached the same conclusion.
Reasons for judgment are to be read on the assumption that the judge knew how to perform his functions and took the whole of the evidence into account; a judge need not deal expressly with every point.
"Island hopping" — attacking individual findings in isolation rather than confronting the judge's overall assessment — is not a legitimate mode of appeal.

Lord Hoffmann had made the underlying point in Piglowska v Piglowski [1999] UKHL 27, warning against the temptation to subject a judgment to narrow textual analysis and observing that the exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. The practical consequence for an appellant is stark: if the appeal depends on persuading three judges that the trial judge believed the wrong witness, it is not an appeal.

Exercises of discretion and case management decisions

Where the judge was exercising a discretion — on costs, on relief from sanctions, on case management, on the admission of evidence — the appellate court will interfere only if the judge erred in principle, took into account an irrelevant matter, failed to take into account a relevant one, or reached a decision outside the generous ambit within which reasonable disagreement is possible. Appellate courts have made a point of discouraging appeals against case management decisions, on the footing that the cost and delay of the appeal will usually exceed anything the appeal can achieve.

Errors of law

Here the appellate court is in its element and there is no deference at all. If the judge applied the wrong legal test, misconstrued a statute or a contract, or misapplied binding authority, the appeal court simply decides the question for itself. An appellant whose grounds can be reduced to a clean point of law has a materially better prospect than one whose grounds are a narrative of dissatisfaction — and identifying that point, if it exists, is the single most valuable thing that can be done in the days after judgment.

New evidence, and second appeals

An appellant who wishes to rely on evidence not before the lower court must satisfy the court that it should be admitted, and the criteria in Ladd v Marshall [1954] 1 WLR 1489 continue to inform the exercise of that discretion: the evidence could not have been obtained with reasonable diligence for use at trial; it would probably have an important influence on the result; and it is apparently credible. The first limb defeats most applications, because the material usually could have been obtained had anybody looked.

Where a first appeal has already been determined, a second appeal faces a further and much higher filter. Under CPR 52.7 permission may be given only by the Court of Appeal, and only where the appeal raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. That the first appeal was wrongly decided is not, by itself, enough.

Preparing the appeal

Obtain the transcript early. Grounds drafted from recollection are unreliable, and the transcript frequently reveals either that the judge did give a reason or that he did not. Ordering it takes time, and time is what you do not have.
Draft grounds, not argument. Grounds of appeal should be short, numbered and each directed at an identified error. A ground that begins "the learned judge failed to give sufficient weight to" is, in most cases, a complaint about a finding of fact wearing a disguise.
Confront the standard of review in the skeleton. An appellant's skeleton that does not explain why the decision falls within the narrow band in which an appellate court will interfere invites the reader to conclude that it does not. On the construction of a skeleton argument generally, see our guide to what a skeleton argument is and how to write one.
Ask for a stay if you need one, and ask for it promptly, with evidence about the consequences of enforcement pending appeal.

The costs of being wrong

An unsuccessful appeal ordinarily carries the costs of the appeal in addition to the costs below, and appellate costs are not small. Where permission is refused on the papers and the application is renewed unsuccessfully, costs may follow that too. An appeal is therefore a second bet on the same case, placed at longer odds, with the first bet still outstanding — and it should be assessed as such. Our guide to costs orders sets out how the general rule operates, and our guide to Part 36 and Calderbank offers explains the instrument that can shift that exposure, which remains available on appeal.

None of this is a counsel of despair. Appeals succeed regularly, and they succeed where a judge has applied the wrong test, misconstrued a document, decided a point that was not argued, or given reasons so inadequate that the losing party cannot tell why it lost. What appeals do not do is give a dissatisfied litigant a second opportunity to have the facts found in his favour. Distinguishing the two, within twenty-one days, is the whole of the exercise.

If you have received a judgment and need to work out whether there is an appealable error in it before the time runs out, CommonBench's Legal Chat can take you through the grounds, the standards of review and the authorities.

This article is published by CommonBench for informational purposes only and does not constitute legal advice. If you are considering an appeal in England and Wales, the appellant's notice is due within twenty-one days — try CommonBench for AI-powered legal research with verified citations across five common law jurisdictions.