Nature of an appealTimes 13 February, [2007] EWHC 365 (Ch), (2007) Times 13 MarchRe [1996] 1 WLR 145sub nom Commissioners for HM Revenue and Customs v Mibilx Ltd [2007] EWHC 1769 (Ch), (2007) Times 14 MarchTimes 9 September
What is an appeal?
4.1According to Lord Westbury LC in
Attorney-General v Sillem ‘an appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the court below.’
1(1864) 11 ER 1200 at 1209.4.2This is not sufficiently broad to cover all appeals; nor is it sufficient to distinguish between judicial review and appeal. As far as appeals are concerned, it deals only with appeals from one court to another. It omits appeals from a tribunal to a court and from a decision-maker to a court or tribunal. As far as judicial review
2Review is also used to refer to a process by which decisions may be changed by a decision-maker or a tribunal at the same level or, in some circumstances, at a lower level. On the importance of maintaining the distinction between an appeal and a judicial review, see Lord Griffith in R v Lord President of the Privy Council ex p Page [1993] AC 682 at 694. is concerned, it does not draw a distinction based on the scope of the challenge to a decision. On judicial review, the challenge is limited to three issues: whether the decision-maker had authority to make the decision; whether it was a permissible decision; and whether it was reached by a proper procedure. On an appeal, the challenge may relate to those issues, but it may also relate to the merits of the decision itself.
4.3Lord Diplock gave a fuller definition in
Attorney-General v Ryan:
3[1980] AC 718.‘Appeal’ in the context of an ouster clause means re-examination by a superior judicial authority of both findings of fact and conclusions of law as to the legal consequences of those facts made by an inferior tribunal in the exercise of a jurisdiction conferred on it by statute to decide questions affecting the legal rights of others, and the substitution of the superior judicial authority’s own findings of fact and conclusions of law for those of the inferior tribunal. In ‘review’ the function of the superior judicial authority is limited to re-examining the inferior tribunal’s conclusions of law as to the legal consequences of the facts as they have been found by the inferior tribunal.
4[1980] AC 718 at 730.4.4Although better than Lord Westbury’s, this definition is still not perfect. It distinguishes appeal from review. But it is limited by its context of ouster of jurisdiction clauses and confined to appeals from tribunals. It also covers appeals on both fact and law, whereas an appeal may be limited to issues of law. And it includes the power to substitute a decision rather than remit the case for a rehearing or reconsideration. This is a power that may be available on an appeal, but it is not of the essence of an appeal. It is also now permissible in judicial review.
5TCEA s17.4.5Put more accurately, an appeal is a challenge, authorised by statute and brought before a higher and judicial authority, to the correctness of a decision.
6See the arguments of counsel and the decisions at first instance and in the Court of Appeal in Furtado v City of London Brewery Company [1914] 1 KB 152 and 709. And see R(IS) 2/97 at [9]–[10] of the Appendix.4.6Not every such challenge is an appeal. This is a relatively modern concept in English legal development. The early law developed other techniques for avoiding error or for remedying it when it had occurred. The law continues to develop those techniques. The extensive powers of a tribunal over its own decisions are mentioned below when commenting on the judgment of Stanley Burnton J in
Kataria v Essex Strategic Health Authority.7[2004] 3 All ER 572. The reconsideration procedure used by the former Asylum and Immigration Tribunal under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was a particularly clear example. Accordingly, as a matter of practice and practicality an appeal may not be necessary. Moreover, an appeal is not essential in law, unless it is necessary in order to comply with article 6.
4.7Rix LJ explained part of what is involved in the process of an appeal in
Compagnie Noga D’Importation et D’Exportation SA v Abacha:
8[2001] 3 All ER 513 at [47].… it is the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process.
Statutory
4.8All appellate jurisdiction is statutory,
9Lord Atkin in Evans v Bartlam [1937] AC 473 at 480. because the creation of a right of appeal requires legislative authority.
10Lord Westbury LC in Attorney-General v Sillem (1864) 11 ER 1200 at 1207. So, an appeal lies only if it is conferred under a statute.
11Furtado v City of London Brewery Company [1914] 1 KB 709 at 712. It must be conferred expressly;
12Lord Halsbury LC in Lane v Esdaile [1891] AC 210 at 211; Arden LJ in Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033 at [46]. it cannot be conferred by implication.
13R v Hanson (1821) 106 ER 1027, R v Stock (1838) 112 ER 892; Furtado v City of London Brewery [1914] 1 KB 709 at 712; Lord St Leonards in Attorney-General v Sillem (1864) 11 ER 1200 at 1217. But the use of the word ‘appeal’ is not essential;
14Lord St Leonards in Attorney-General v Sillem (1864) 11 ER 1200 at 1218. the issue is one of interpretation.
15Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] EWHC 365 (Ch) at [14]; (2007) Times 13 March. Lightman J held that the legislation in that case did not create an appeal. This was confirmed by the Court of Appeal: see [19]–[32] of the judgment of Lloyd LJ in [2008] EWCA Civ 22; (2008) Times 13 February. There is no presumption that an appeal is intended, even in order to comply with article 6.
16Arden LJ in Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033 at [46]. One relevant factor is whether there is a time limit on commencing the procedure, although this is not essential: at [24]. But a decision may be so analysed as to bring it within the scope of an appeal right in order to comply with article 6.
17As in R(H) 3/05.4.9A power to make procedural provisions does not authorise providing for an appeal. This follows from two considerations. First, the right to appeal is a substantive right, not a matter of procedure.
18Colonial Sugar Refining Co, Ltd v Irving [1905] AC 369 at 372–373; Horridge and Shearman JJ in Newman v Klausner [1922] 1 KB 228 both at 231. Consequently, a power that authorises the making of procedural provision does not include the power to make provision relating to jurisdiction;
19Lord Westbury LC in Attorney-General v Sillem (1864) 11 ER 1200 at 1208. See also chapter 3. it can only provide for the manner in which the tribunal’s jurisdiction is to be exercised.
20British South Africa Company v Companhia de Moçambique [1893] AC 602 at 628; Jaffray v Society of Lloyd’s [2008] 1 WLR 75 at [8]. Second, as the right of appeal affects the jurisdiction both of the body from which the appeal lies and of the body to which it lies, it cannot be created as a matter of procedure by either one of them.
21Lord Westbury LC in Attorney-General v Sillem (1864) 11 ER 1200 at 1208.4.10It is for the person who alleges that statute confers a right of appeal to show that it does so.
22Furtado v City of London Brewery [1914] 1 KB 709 at 712.4.11A power to make regulations to regulate the right of appeal does not authorise the removal of the right.
23Tarr v Tarr [1973] AC 254; R v Secretary of State for the Home Department ex p Saleem [2001] 1 WLR 443 at 459. As Mummery LJ explained in
R v Secretary of State for the Home Department ex p Saleem, it does cover:
24[2001] 1 WLR 443.time limits for appealing; setting procedures for the service of documents, including the determination of the adjudicator, by post on parties or their representatives; and putting upon parties the obligation to provide details of their address and to notify changes of address.
25[2001] 1 WLR 443 at 452–453.4.12A tribunal may have an express power to correct mistakes made by persons exercising one of its delegated functions. This power may also be implied as part of the tribunal’s power over its own procedure.
26Re Macro (Ipswich) Ltd [1996] 1 WLR 145 at 154–155. The discussion refers to inherent power or jurisdiction, but the context suggests that the power is implicit or implied. However, this is not an appeal.
Before a higher authority
4.13The challenge must be made before a higher authority. So, the power for a lower authority to overturn a tribunal’s decision, even on the ground that it was wrong, is not an appeal, because it is not before a higher authority. For the same reason, a power for a tribunal to overturn its own decisions is not an appeal. This applies whether the power is limited to procedural mistakes or covers substantive errors of fact or law.
4.14In theory, there could be an appeal to a tribunal of the same level, but this would be surprising, unusual and inappropriate. Stanley Burnton J referred to this possibility in
Kataria v Essex Strategic Health Authority:
27[2004] 3 All ER 572 at [27].Appeals to tribunals or courts of equal standing to the tribunal or court responsible for the original decision are rare, if known at all. It would be most unfortunate if a subsequent tribunal of equal standing to the first tribunal were required to hear and to rule on contentions that the first tribunal procedure had been unfair, that its discretions had been exercised unreasonably (e.g. that an adjournment should have been granted), that its procedure had been irregular, or that any of its findings of fact or its decision was incorrect. It is most unlikely that Parliament intended this.
In fact, tribunals have powers to do all the things set out in that passage, although they are not labelled an appeal. Under TCEA, tribunals have power to set aside their own decisions on procedural grounds. They also have power to set aside their own decisions for error of law, with or without the agreement of all the parties. They may even have power to set aside a decision if the interests of justice so require,
28For example: reg 43(1) quoted in Kataria at [9]. although the context may limit this to procedural considerations.
29R(U) 3/89 at [22]; R(SB) 4/90 at [10].4.15The appeal may lie from the decision of a tribunal lower in the hierarchy or from a decision-maker.
Against a decision
4.16The appeal must be against a decision. It may be limited to the final decision or it may include interlocutory decisions. But there must be a decision. So, a delay in making and a failure to make a decision cannot be challenged through a statutory appeal and are matters for judicial review.
30Commissioners for Her Majesty’s Revenue and Customs v Mobilx Ltd [2007] EWHC 1769 (Ch), reported as Mobilx Ltd v Revenue and Customs Commissioners (2007) Times 14 March.4.17An appeal confers ‘a right to a rehearing of the whole matter in dispute, the appellate tribunal not being confined to the particular reasons which have been given by the court below as the ground for their decision.’
31Humphreys J in Fulham Borough Council v Santilli [1933] 2 KB 357 at 367. This is subject to provision to the contrary.
32Humphreys J in Stepney Borough Council v Joffe [1949] 1 KB 599 at 604–605.4.18Although it is not sufficient to seek to challenge an aspect of the tribunal’s reasoning as opposed to its decision,
33Lake v Lake [1955] P 336. an appeal may lie for a procedural error and this may include inadequate reasons. So, in practice, the inadequacy of the tribunal’s reasons may make the decision itself wrong and so appealable.
4.19In the case of the Upper Tribunal, the decision will usually be the decision of the First-tier Tribunal below. This has an impact on the exercise that is undertaken on the appeal. In
Gover v Propertycare Ltd,
34[2006] ICR 1073. the Court of Appeal heard an appeal from a decision of the Employment Appeal Tribunal. Counsel argued that the issue for the Court was whether the decision of the employment tribunal, which had been the subject of the appeal to the Employment Appeal Tribunal, was correct. The Court rejected this. Buxton LJ explained why:
As to authority, this court’s jurisdiction to hear this appeal, coming as it does from a statutory tribunal, is only to be found in s37(1) of the Employment Tribunals Act 1996, which provides for an appeal
from the EAT on a question of law only. I do not see how we can in any realistic sense be hearing an appeal from the EAT if we are only concerned with whether the ET was right. As to the business of this court, the assumption that we in effect repeat the exercise already performed by the expert EAT of reviewing the decision of the ET tends in practice to impose on this court an exercise that is inappropriate both in its nature and in its extent.
35[2006] ICR 1073 at [8].4.20However, this is not always so. If there are successive appeals from a decision-maker, both of which are on a point of law, and the particular case is concerned with judicial review grounds, the focus in the second appeal is on the decision of the original decision-maker. This is the case in homelessness appeals. An appeal lies to the county court against the local authority’s decision. The appeal is on a point of law, which includes judicial review grounds.
36Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306. A further appeal lies to the Court of Appeal. On that second appeal, the focus is on the decision of the local authority, not of the county court judge. As Auld LJ explained in
Osmani v Camden London Borough Council:
37[2005] HLR 22 at [34].As Mr McGuire observed, the main focus of attention on a second appeal such as this should be on the decision of the Council rather than that of the country court judge on appeal from it. As I have said, the appeal lies only on a point of law, and, within the
Wednesbury type formulation given by Lord Bingham,
38In Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 at [7]. matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread wearily before interfering.
4.21A party may be aware of a decision before it is actually made or promulgated and seek to appeal immediately. In
R(U) 3/85, a Tribunal of Commissioners decided that in these circumstances ‘… the appeal was a continuing one to take effect as and when the relevant concrete decision was actually made’.
39R(U) 3/85 at 8.Correctness of the decision
4.22The challenge must be made to the correctness of the decision as made. The proper course in respect of matters arising after the decision will usually be judicial review.
40PF (Nigeria) v Secretary of State for the Home Department [2015] 1 WLR 5235 at [34]. 4.23A power for a tribunal to revisit a decision on the ground that it is no longer appropriate in view of a change of circumstances is not an appeal, because it is not a challenge to the correctness of the decision as made. Under TCEA, it is a review.
41HESC Rules r48; UTR r47(2)(c).When an appeal begins
4.24An appeal begins as soon as it is lodged or permission is given, not when it is heard or the appellant attends the hearing.
42R v Income Tax Special Commissioners ex p Elmhirst [1936] 1 KB 487.Classification of appeals
4.25Appeals have been classified in different ways.
4.26In
Quilter v Mapleson,43(1882) 9 QBD 672. Jessel MR distinguished between appeals strictly so called and appeals by way of rehearing:
On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance.
44(1882) 9 QBD 672 at 676. This was approved by the Privy Council in Ponnamma v Arumogan [1905] AC 383.4.27However, this distinction does not identify the process involved in the appeal. On an appeal strictly so called, it may be permissible to hear fresh evidence
45See chapter 10. although that is more appropriate to a rehearing. And rehearing covers a range of procedures, as the Court of Appeal explained in
Jones v Attorney-General:
46[1974] Ch 148.The problem plainly cannot be resolved by determining that the right of appeal … is by way of rehearing, for both an appeal from petty sessions to the Crown Court, which is in truth a new trial, and an appeal to the Court of Appeal, which has been called a rehearing on documents, are so described. We think that Mr. Vinelott was right when he said that there is a wide range of differing processes of appeal between these two extremes, and that in the absence of statutory provision or rules of court it is for the court to which an appeal lies to regulate its own procedure.
47[1974] Ch 148 at 161.4.28In his report on
Access to Justice, Lord Woolf classified appeals into broadly three forms:
48Access to Justice, HMSO, 1996, chapter 14, paras 32–34. (i) the second hearing; (ii) the rehearing; and (iii) the review of the outcome of the case. A second hearing involves the appellate body hearing the case completely afresh as if there has been no earlier hearing. Despite its form, this is an appeal.
49The form of proceeding is a matter of procedure and does not affect its nature as an appeal: Lord Goddard CJ in Drover v Rugman [1951] 1 KB 380 at 382. See also Russell LJ in Stevens v Stevens [1965] P 147 at 164. It takes this form, because there is no formal record of the proceedings
50Drover v Rugman [1951] 1 KB 380 at 382. or if it is necessary in order to comply with article 6.
51May LJ in EI Du Pont De Nemours & Co v ST Dupont [2006] 1 WLR 2793 at [96]. The decision given replaces that given below.
52R(I) 9/63 at [18]. This is so whether the appeal is successful or not. In this form of appeal, the burden of proof is as it was at the first hearing,
53Lord Goddard CJ in Drover v Rugman [1951] 1 KB 380 at 382. regardless of who initiated the appeal. A rehearing differs from a second hearing in that the emphasis is on whether the decision below was wrong rather than looking at the case completely afresh as if there had been no earlier decision. The issues are limited to the grounds of appeal. If the appeal is successful, the decision given may replace that given below, although occasionally a case may be remitted for a fresh hearing. In a review of the outcome of a case, a successful appeal has the result that the case is remitted for rehearing. An appeal does not have to fall exactly within one of these perfect forms. It may represent a hybrid.
54For example: an appeal to the First-tier Tribunal in its social security jurisdiction is a second hearing but the Social Security Act 1998 s12(8)(a) gives the tribunal power to restrict itself to issues raised by the appeal.4.29In practice, the important issue is not the classification or label. There is no pre-determined list of possibilities. Nor do all appeals under the same label necessarily have the same features or features that are exclusive to that particular category.
55Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at [8]–[13]. Even in the case of a coherent modern code, it can be difficult to identify the practical significance of a particular classification. CPR are such a code, but in
Meadow v General Medical Council56[2007] QB 462. Auld LJ described the distinction drawn in CPR between a review and a rehearing as ‘thin and variable according to the circumstances and needs of each case’.
57[2007] QB 462 at [128]. And in
EI Du Pont De Nemours & Co v ST Dupont,
58[2006] 1 WLR 2793. May LJ described ‘review’ under CPR as involving ‘a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged.’
59[2006] 1 WLR 2793 at [94].4.30The classification of an appeal into a particular category or under a particular label does not necessarily determine the tribunal’s powers and duties. The correct approach is to focus on the specific issue raised rather than the classification of the type of appeal. As May LJ said in
EI Du Pont De Nemours & Co v ST Dupont:
60[2006] 1 WLR 2793 at [98].At this margin [between rehearing and review under CPR], attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal.
May LJ had listed some of these questions:
Will the appeal court start all over again as if the lower court had never made a decision? Will the appeal court hear the evidence again? What weight is to be given to the decision of the lower court? Will the appeal court admit fresh evidence and, if so, upon what principles? To what extent and upon what principles will the appeal court interfere with the decision of the lower court?
61[2006] 1 WLR 2793 at [85].The answer to such questions is a matter of principle, not of discretion.
62[2006] 1 WLR 2793 at [93]. These and other issues are considered below at para 4.46 onwards.
4.31Once the nature of an appeal and the tribunal’s powers have been identified on the basis of the wording of the legislation, this may enter the tribunal’s philosophy and survive changes in the wording of the legislation.
63See the approach of the Tribunal of Commissioners in R(IB) 2/04 at [19]–[25]. The Tribunal reasoned from past practice and authorities without referring to changes in the wording of the legislation and without considering first principles, which would have produced the same result by pointing to the lack of independence in the decision-makers.The purposes of an appeal
4.32An appeal fulfils at least three functions.
64See the Woolf Report on Access to Justice, HMSO, 1996, chapter 14, para 2, the Bowman Committee Report on the Review of the Court of Appeal (Civil Division), 1997, chapter 2 paras 8–12 and Robert Thomas, Administrative Justice and Asylum Appeals (Hart 2011), pages 237–239.4.33First, an appeal against a decision may be necessary as a matter of constitutional practice or law.
4.34As a matter of constitutional practice, an appeal against an administrative decision has been described as the very essence of administrative decision-making in a free country
65Bowen LJ in R v Justices of the County of London and the London County Council [1893] 2 QB 476 at 492. and, in the absence of an appeal, the decision should be open to review.
66R v Chancellor, Masters and Scholars of the University of Cambridge (1723) 93 ER 698 at 702–703.4.35As a matter of law, an appeal may be necessary in order to ensure a fair hearing under article 6. Whether or not this is so depends on whether, for the purposes of article 6, the decision-maker was independent and whether there was a hearing. If the decision-maker was not independent, an appeal is necessary. Otherwise, it is not; article 6 makes no provision for an appeal in every case.
4.36Second, an appeal helps to ensure public confidence in the administration of the law, to clarify and develop the law, practice and procedures,
67Taylor v Lawrence [2003] QB 528 at [26]. and to maintain the standards of the body from which the applies lies.
4.37Third, an appeal allows wrong decisions to be corrected. This is primarily a matter of concern to the parties to the proceedings.
68[2003] QB 528 at [26].4.38In
Stepney Borough Council v Joffe,
69[1949] 1 KB 599. Lord Goddard CJ emphasised that the role of an appeal was limited to correcting error:
It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.
70[1949] 1 KB 599 at 603.Lord Radcliffe made the same point in
Edwards v Bairstow:
71[1956] AC 14. ‘The court is not a second opinion, where there is reasonable ground for the first.’
72[1956] AC 14 at 38. This distinction has been particularly significant when an appeal concerns an exercise of judgment. If the appellate body is entitled or required to exercise the judgment afresh, it is nonetheless entitled to take account of the way in which it was exercised below.
4.39Appeals may also be used for other functions, depending on the needs of the parties and the First-tier Tribunal, as perceived by the Upper Tribunal. They may be used proactively to avoid future problems by providing guidance on matters of procedure or the gathering and assessment of evidence. And they may be used to achieve as much consistency as is possible in decisions involving particular issues of judgment.
73See chapter 13 for further discussion of these functions.4.40An appeal can be effective even if the tribunal’s powers are limited and cannot correct mistakes with retrospective effect.
74Vodafone Ltd v British Telecommunications plc [2010] 3 All ER 1028 at [46]. The tribunal may nonetheless identify those mistakes and ensure that they are corrected for the future.
75Vodafone Ltd v British Telecommunications plc [2010] 3 All ER 1028 at [45].Effectiveness
4.41An appeal must be effective. The right of appeal is absolute and must not be interfered with. Accordingly, decision-makers and tribunals should not take any steps that would undermine the appeal process, even if they think the appeal is without merit.
76Lloyd-Davies v Lloyd-Davies [1947] P 53. Nor may they undermine the decision by administrative action.
77TB (Jamaica) v Secretary of State for the Home Department (2008) Times 9 September.4.42This is subject to provision to the contrary. For example: a decision may be set aside on review even while an appeal is proceeding and doing so excludes that decision from the right of appeal (TCEA ss11(5)(e) and 13(8)(e)).
Cross appeals
4.43The rules of procedure do not use the concept of a cross appeal and, unlike CPR, they do not use the concept of a respondent’s notice. A respondent may either raise an issue on the appellant’s appeal or make a separate appeal against the decision, in which case the appeals should be heard together rather than consolidated.
78John v Information Commissioner and Ofsted [2014] UKUT 0444 (AAC).Multiple appeals
4.44It is possible, although unusual, for an appeal to lie against the same decision under different provisions. Appeals in respect of tax penalties are an example. An appeal lies to the Upper Tribunal on any ground under section 100B(3) of the Taxes Management Act 1970. An appeal also lies to the Upper Tribunal under TCEA s11. This is limited to issues of law, but applying under this section allows the First-tier Tribunal to use its review powers.
4.45If a party has a choice from multiple appeals, the choice that the party has made is determined on the documentation as a whole; a mistake in one part of the documents may be corrected elsewhere.
79Mucelli v Government of Republic of Albania [2009] 1 WLR 276 at [38].