Appeals and Applications to Set Aside Judgment
| Author | Patricia Pearl/Tim Parker |
| Pages | 235-248 |
Chapter 11
Appeals and Applications to Set Aside Judgment
11.1 INTRODUCTION
Basics
• Appeal – the loser must first get permission to appeal, which will be given if the appeal has a real prospect of success
• The limited costs rule applies to the appeal process for small claims
• The appeal is usually not a re-hearing but a review of the decision of the district judge
• Re-hearings are different from appeals – a party who, for good reason, fails to attend a hearing may be able to get a re-hearing
• A judgment in default (obtained without a hearing) can sometimes be set aside
This chapter considers three situations where the losing party may want the case reconsidered, namely:
• appeals (paragraph 11.2);
• setting aside a judgment made in the loser’s absence and re-hearing (paragraph 11.3);
• setting aside a judgment in default (paragraph 11.4).
These different routes are summarised in Table 11.1.
236 Small Claims Procedure in the County Court
Table 11.1 Summary table – appeals, and setting aside judgments
Appeals in bold type are heard by a circuit judge – all other applications are heard by a district judge.
Circumstances Complaint Action Timescale
Judgment after hearing
Apply for permission to appeal. Appeal will be heard by a circuit judge
(see paragraph 11.2)
Apply for permission at the hearing to the district judge or within 21 days to the circuit judge
Both parties attend the hearing
Decision was wrong and the loser has a real chance of success on appeal
Loser unhappy, but the decision was not wrong
No action can be taken
One party does not turn up at the hearing having given notice in advance under CPR 27.9
The absent party considers the decision was wrong and has real chance of success on appeal
Apply for permission to appeal. Appeal will be heard by a circuit judge
(see paragraph 11.2)
Application for permission must be made to the circuit judge within 21 days of the decision
Loser fails to attend the hearing (no notice having been given under CPR 27.9)
Loser’s case has a reasonable prospect of success, and loser has a good reason for non-attendance
Application to set aside (CPR 27.11)
(see paragraph 11.3)
No more than 14 days after service of the judgment
No acknowledgment or defence
Judgment entered too soon, or after the whole of the claim was paid, or where the claim was never served
Application to set aside or vary default judgment (CPR 13.2)
(see paragraph 11.4)
No specific timescale. The judge must set aside the judgment and will not impose conditions
Judgment in default
Failure to file defence or acknowledgment
Judgment debtor has real prospect of defending or there is other good reason why the judgment should be set aside
Application to set aside or vary default judgment (CPR 13.3)
(see paragraph 11.4)
Apply promptly. The judge may set aside the judgment and if so may impose conditions
11.2 APPEALS
11.2.1 Terminology
• Appellant: the party making the appeal.
• Appeal court: the court which hears the appeal (not to be confused with the Court of Appeal; appeals from district judges in small claims are made to a circuit judge who sits in the County Court).
• Lower court: the court whose decision is under appeal.
• Respondent: the party responding to the appeal.
11.2.2 Time limits
The important time limits in relation to appeals are as follows:
Within 21 days of the decision (or such other period as the court may direct)
Appellant must file notice of appeal (including application for permission to appeal if not granted by the district judge at the hearing)
Within 7 days of the appellant filing notice of appeal
Appellant must serve a copy of the notice of appeal on the other side
11.2.3 The appeal rules
The rules about appeals are set out in CPR Part 52. They are the same for small claims as for fast and multi-track cases, except that the paperwork needed on the appeal is slightly reduced. A full discussion of all the rules about appeals is outside the scope of this book: what follows is a summary relevant to appeals in small claims.
A party dissatisfied with the final result can appeal, but only with permission, which must be obtained from a judge. Either the district judge who heard the case or a circuit judge will grant permission if the appeal has a real prospect of success. A summary is set out in Table 11.1. See also paragraph 10.19.5 (asking the judge for permission to appeal at the end of the hearing).
11.2.4 Grounds for appeal
CPR 52.21(3) states 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.
238 Small Claims Procedure in the County Court
The circuit judge will only interfere with a decision if it is wrong or unjust; this is not the same as it being one with which the loser disagrees.
You should ask the following questions when considering an appeal: in making the original decision, did the district judge:
(1) make a critical finding of fact against the weight of the evidence; or
(2) make a critical finding of fact which was totally unsupported by evidence; or
(3) misinterpret a statute and thus come to a wrong decision; or
(4) get any aspect of law wrong and thus come to a wrong decision;
(5) fail to give reasons for the decision; or
(6) conduct the hearing in an unfair manner?
If the answer to any one of these questions is ‘yes’, an appeal may be possible.
Since the circuit judge will generally not re-hear the case but will review the original decision, they will be interested in the reasons given for that decision. The circuit judge must be provided with a suitable record of the judgment (see paragraph 11.2.8). Although in a small claim reasons may be given as briefly and simply as the nature of the case allows, a failure to give adequate reasons for a decision is itself grounds for appeal.
A practitioner presenting a case at a small claims hearing should have researched the law and provided the district judge with copies of any relevant legal authorities. If the district judge nevertheless got the law wrong, the legal position should be thoroughly checked before an appeal is mounted and the correct legal analysis set out in the appeal document.
In considering a possible procedural irregularity, you should remember that the small claims hearing is, by...
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