First instance judgments – keeping us in suspense?
It is apparent that in some circumstances, the question of whether appeals have a suspensive effect in first instance judgments in England and Wales is not clear-cut. Holly Mitchell provides a useful reminder on what happens when a right to appeal is granted and how it might impact on the judgment or order itself, as well as the implications for costs and damages.
Volume 46, number 7-8
2-pp17-19-First instance judgments_3.indd 17
T
he Civil Procedure Rules 1998 set out the prescribed procedure for dealing with judgments and appeals here in England and Wales, with a first instance judgment having immediate effect from the moment it has been given (or as the court may otherwise specify) (CPR r40.7). Even when an appeal is granted, by either the appeal court or the lower court, unless either court orders otherwise, it will not stay an order or judgment by the lower court (CPR r52.16). When the judgment and relevant orders are deemed to take effect, and are actionable by the parties, will therefore be determined on a case-by-case basis. Considering the process by which an appeal arises following a decision at first instance, a party must be granted permission to appeal (CPR r52.3) or if this is not expressly requested at lower court proceedings, a party may subsequently make an application to appeal. The potential appellant must overcome the relevant threshold (see CPR r52.3) in order for the court to grant permission to appeal: the appeal must have a real prospect of success, or there is some other compelling reason why it should be heard. An application for permission to appeal is usually made to the lower court at the hearing at which the decision was made. Alternatively, an application for permission to appeal can also be made to the appeal court in a formal appeal notice. Every appellant’s notice (including one seeking permission to appeal) must be filed not later than 21 days after the date of the decision of the lower court (CPR r52.4) If a party wishes to stay an order made in a judgment pending an appeal, it will need to seek a stay of that order. JULY-AUGUST 2017
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