K18.4. The role of the appellate court and the test for
determining appeals
| 544. |
Lord Woolf distinguished among three broad
functions that appellate courts might perform in dealing with appeals :- |
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"There are three
broad categories of review or appeal. |
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(a) |
A complete rehearing,
in the sense that the whole matter is heard de novo (although the appellant, not the
original applicant, opens it). The appellate court is not bound by the exercise of the
lower court's discretion. Where the appeal is from a trial, the oral evidence would be
heard again (as happens in criminal appeals to the Crown Court). Arguably, this is not an
appeal at all but a second hearing. |
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(b) |
A rehearing, in the
sense used in RSC Order 59, rule 3(1), in that although the issues in the appeal are
narrowed by the requirement for grounds of appeal to be given, the whole of the evidence
and the course of the trial may be reviewed on the documents, and the appellate court may
substitute its own decision for that of the court or judge below. But oral evidence is not
heard and fresh evidence only allowed in limited circumstances. |
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(c) |
A review of the
decision, which, if held to be defective, is then remitted to the court below for the
matter to be heard again. This is more akin to judicial review or to the civil law
cassation." (Note 483) |
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| 545. |
In Hong Kong :- |
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| 545.1 |
By virtue of HCR Order 59 r 3(1), the Court of
Appeal performs function (b), appeals being by way of rehearing (as was the case in
England and Wales before the CPR). A significant body of jurisprudence has built up
regarding the principles upon which the Court of Appeal acts in this context. (Note 484) |
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| 545.2 |
The CFI, hearing appeals from the master under
HCR Order 58 r 1, performs function (a). The appeal is approached largely as if the matter
is being ventilated for the first time, "save that the party appealing, even though
the original application was not by him but against him, has the right as well as the
obligation to open the appeal". (Note 485) Fresh evidence is generally admitted, subject to costs. |
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| 546. |
The CPR have now :- |
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shifted the appellate function of all courts
in England and Wales markedly towards option (c), limiting appeals to a review of the
lower court's decision, although the court has a discretion to revert to treating the
appeal as a re-hearing; and, |
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applied the new approach to all courts. |
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| 547. |
CPR 52.11 provides :- |
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"(1) |
Every appeal will be
limited to a review of the decision of the lower court unless - |
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(a) |
a practice direction
makes different provision for a particular category of appeal; or |
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(b) |
the court considers
that in the circumstances of an individual appeal it would be in the interests of justice
to hold a re-hearing. |
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(2) |
Unless it orders
otherwise, the appeal court will not receive - |
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(a) |
oral evidence; or |
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(b) |
evidence which was not
before the lower court. |
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(3) |
The appeal court will
allow an appeal where the decision of the lower court was - |
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(a) |
wrong; or |
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(b) |
unjust because of a
serious procedural or other irregularity in the proceedings in the lower court. |
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(4) |
The appeal court may
draw any inference of fact which it considers justified on the evidence. ......" |
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| 548 |
The learned editors of the White Book comment
that :- |
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"The changes made
in 2000 are so fundamental that citation of authority on the former rules is unlikely to
assist the court in resolving questions which arise concerning pt 52." (Note 486) |
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| 549. |
However, the CPR changes did not come into
effect until May 2000 (Note 487) and do not appear to have attracted much comment to date. Their impact is
therefore not clear. The White Book indicates that "the most radical change made by
rule 52.11 is to unify the approach of all appeal courts." It is not clear, for
example, whether this means that the master should now give reasons for his decision
(something not presently done in Hong Kong) since an appeal from him to the judge in
chambers is by way of review and not a full rehearing. |
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| 550. |
It has been suggested in the discussion of
possible reforms to procedures for interlocutory applications that consideration be given
to dispensing with the hearing before the master where the application is likely to go on
appeal to the judge in chambers. If that proposal is adopted, the impact of a rule like
CPR 52.11 would be diminished. It would however still apply where the matter is dealt with
by the master but, perhaps unexpectedly, one of the parties then decides to appeal the
master's decision. |
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| 551. |
Readers are consulted as to whether the
appellate function should be limited to a review of the decision of the lower court,
subject to the appellate court's discretion to permit the appeal to proceed as on a
re-hearing and as to whether all appellate tribunals should adopt a uniform approach to
the determination of appeals: Proposals 49 and 50. |
Notes
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