Rights of Appeal in Legal Proceedings

NOTICES OF APPEALS

&

GROUNDS OF APPEALS

IAN L. BENJAMIN

RIGHTS OF APPEAL -

STATUTORY

All rights of appeal against any decision are 

statutory

 based.

It is vital for an Attorney to Law to identify the enactment and procedures that

give rise to the right to appeal.

Some

 appeals are to the High Court and 

others

 are to the Court of Appeal.

2

Appealing Decisions to the 

High Court

Many of these 

relate to the Boards of various

professions bodies in Trinidad and Tobago

3

1.

Decisions of the Council of the Medical Board of Trinidad and

Tobago

I.

Appeals are pursuant to Section 29 of the Medical Board Act which sets out

II.

The appeal is against the refusal of the Council to grant registration or temporary

licence, an order for suspension of licence for less than 2 years or revocation or

suspension of licence;

III.

The appeal must be within 

3 months

 after the date of the notice by the Council of

their decision;

4

•

“Section 29 gives the right of appeal from the decision of the Council to a Judge

in Chambers. The appeal to a Judge in Chambers is truly appellate and is not

supervisory. So too is the appeal to this Court. This Court is therefore fully

entitled to substitute its own decision and set aside the decision of the Council

and the Court below. It may also amend or vary it. “ Mendonca JA

5

•

2.

Decision of the Land Surveyors Board or Disciplinary Committee

I.

Appeals are pursuant to Section 58 of the Land Surveyors Act except for

assessment of academic qualifications, training or relevant experience for any

application for registration;

II.

Appeals are to be brought within 

one month

 of the decision;

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3.

Decisions of the Nursing Council of Trinidad and Tobago

I.

Appeals are pursuant to Section 38 of the Nursing Personnel Act;

II.

Appeals are to be made with 

one month

 of the decision;

III.

Appeals for decisions relating to nursing interns or nursing are to the Minister

of Health within 

one month

 and the Minister’s decision is final;

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4. Decisions of the Board of Inland Revenue

•

Appeals of decisions of the Board of Inland Revenue are made to the Tax

Appeal Board pursuant to section 87 of the Income Tax Act

I.

Appeals are available to the tax appeal board when a person has issued a notice of

objection to the Board of Inland Revenue and is dissatisfied with the decision of the

board;

II.

A notice of objection is done pursuant to section 86 of the Income Tax Act;

8

•

Section 7 of the Tax Appeal Board Act provides

•

Notice of appeal to be filed with the Registrar of the Tax Appeal Board

within 28 days of the notification or service of the decision of the Board of

Inland Revenue;

•

An appeal can be instituted out of time but the Board has to be satisfied

that there was 

reasonable cause 

and that the appeal was brought without

unreasonable delay

;

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5.

Decisions of the EMA

•

Environmental Commission has the jurisdiction to hear and

determine appeals from decisions or actions by the EMA

specifically authorised under the EMA Act per section 81(5)

of the Environmental Management Authority Act;

10

•

Section 85 of the EMA Act sets out the appeals procedure :

I.

File notice of appeal with the Registrar of the Commission and serve a

copy on the Secretary or other respondent;

II.

Notice of appeal specifying the 

dispute

 and 

grounds of appeal 

has to be

filed within 28 days but appeals can be filed out of time with

reasonable cause for not appealing and it was filed without

unreasonable delay;

11

6.

Decisions of the National Insurance Board

•

Section 62 of the National Insurance Act set out that appeals on questions of

fact lies to the National Insurance Appeal Tribunal while questions of law or

partly of law and partly of fact are appealed to the High Court. There is a

further appeal of mixed questions to the Court of Appeal;

•

The procedure of appeals is governed by the National Insurance (Appeal)

Regulations.

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7.

Criminal decisions of the High Court

•

Section 39, 42 to 65 deals with Criminal proceedings;

13

DPP Criminal “Review”

•

Under section 36 of the Supreme Court of Judicature Act DPP has

power to seek review 

“…for material error in the proceedings of the

inferior court…

”

•

As Bereaux JA put it: 

“…that while the Court of Appeal’s jurisdiction

was not to be exercised “readily or routinely”, “I can see no reason

why the remedy ought not to be available to the Director during the

course of committal proceedings, in an appropriate case.” …”

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8.

DPP may launch Criminal Appeal

•

 65E.  (1)  Section 63 notwithstanding, the DPP may appeal to the Court of

Appeal—

•

   (a)  against a 

judgment or verdict of acquittal 

of a trial Court in

proceedings by indictment when the judgment or verdict is the result of a

decision by the trial Judge to uphold a no case submission or withdraw the

case from the jury on any ground of appeal that the decision of the trial

Judge is erroneous in point of law;

•

  (b)  with leave of the Court of Appeal or a Judge thereof, against the

sentence

 passed by a trial Court in proceedings by indictment, unless that

sentence is one fixed by law.

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Time for DPP Appeal

•

 65F.  (1) …the Director of Public Prosecutions …shall give notice of

appeal or notice of his application for leave to appeal, in such manner

as may be prescribed by Rules of Court within 

fourteen days 

of the

date of the verdict of acquittal or sentence passed.

•

      (2)  The Court of Appeal or a Judge thereof 

may at any time

extend 

the time within which notice of appeal or notice of an

application for leave to appeal may be given.

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Criminal Appeal – Conviction & Sentence –sec

43

•

conviction on any ground of appeal which involves a 

question of law

alone;

•

 with the 

leave

 of the Court of Appeal or upon the certificate of the

Judge who tried him that it is a fit case for appeal against his

conviction on any ground of appeal which involves a 

question of fact

alone

, or a question of 

mixed law and fact

, or any other ground which

appears to the Court to be a sufficient ground of appeal;

•

with the leave of the Court of Appeal against the sentence passed on

his conviction, unless the sentence is one fixed by law – see 

Francis

decision CA-

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Criminal Appeal – Time – sec 50

•

a person convicted desires to appeal …Act to the Court of Appeal, or

to obtain the leave of that Court to appeal, he shall give notice of

appeal or notice of his application for leave to appeal …. within

fourteen days of the date of conviction.

•

Such Rules shall enable any convicted person to present his case and

his argument 

in writing 

instead of by oral argument if he so desires.

Any case or argument so presented shall be considered by the Court

of Appeal.

•

Except in the case of a conviction involving sentence of death, the

time within which notice of appeal or notice of an application for

leave to appeal…

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•

Appealing Civil Decisions

  to the Court of Appeal

9.

 Jurisdiction of Court of Appeal

Section 14 (5) of the Constitution – Appeal as of right and Stay of

Execution as of right;

Section 23 of the Judicial Review Act – Appeal as of right against

Interlocutory and Final decisions;

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10.

 Public and Private Law Jurisdiction

Section 38 (1) SCJA

•

Civil appeal as of right

•

hear and determine appeals from any judgment or order of the High Court, in all

civil proceedings and for the purposes of and incidental to the hearing and

determination of any appeal, and the amendment, execution and enforcement of

any judgment or order made thereon, the Court of Appeal shall

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Appeal with leave- sec 38(2)

•

 leave of the Judge making the order or of the Court of Appeal from—

•

an order made with the consent of the parties;

•

an order as to costs;

•

a final order of a Judge of the High Court made in a summary proceeding.

•

“If for instance, the current application to strike out this matter was not

successful, the present case would have continued. Therefore, based on the

application test which had previously been accepted and applied in this court,

the order to strike out the claim was not "a final order of a judge". That being

the case, section 38(2)(c) does not apply to the present appeal …. 

Smith JA

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No Appeal –section 38(3)

•

except as provided by this Act, from any order made by a Judge of the

High Court in any criminal cause or matter;

•

 from an order allowing an extension of time for appealing from an

order;

•

 from an order of a Judge of the High Court giving unconditional leave

to defend an action;

•

from an order absolute for the dissolution or nullity of marriage in

favour of any party who having had time and opportunity to appeal

from the decree nisi on which the order was founded has not

appealed from that decree

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Other Statutory CA Appeals

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e.g.  Decisions relating to Attorneys

•

Decision of the High Court to refuse an order to admit an individual

to practice can be appealed to the Court of Appeal (Section 15(4) of

the Legal Profession Act);

•

Refusal by the High Court to restore to the roll of Attorneys or

withdraw suspension can be appealed to the Court of Appeal

(Section 31 of the Legal Profession Act);

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•

An Attorney at law aggrieved by a decision of the 

Disciplinary

Committee

 can appeal to the Court of Appeal -  under Section

40 of the Legal Profession Act);

•

Attorney at Law who has disciplinary proceedings before the

High Court

 is entitled to appeal to the Court of Appeal under

section 41 of the Legal Profession Act);

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Powers of CA – sec 39 (1)

•

make any such order as the Court from whose order the appeal is

brought might have made, or to make any order which ought to have

been made, and to make such further or other order as the nature of

the case may require;

•

draw inferences of fact;

•

direct the Court from whose order the appeal is brought to enquire

into and certify its finding on any question which the Court of Appeal

thinks fit to be determined before final judgment in the appeal.

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11.

Ex proprio moto – sec 39(2)

•

no notice of appeal or respondent’s notice has been given in respect

of any particular part of the decision of the High Court by any

particular party to the proceedings in Court,

•

or that any ground for allowing the appeal or for affirming or varying

the decision of that Court is not specified in such a notice;

•

and the Court of Appeal may make any order, on such terms as the

Court of Appeal thinks just, to ensure the determination on the

merits of the real question in controversy between the parties.

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12.

Jurisdictional Limits to Appeals

•

Decisions on points of law to the Court of Appeal on the limited grounds set on section 18(2) of 

Industrial Relations Act

:

•

                    (a)

  shall not be competent for the Court of Appeal to entertain such ground of appeal, unless objection to the jurisdiction of the

Court has been formally taken at some time during the progress of the matter before the making of the order or award;

•

(b)

  that the Court has exceeded its jurisdiction in the matter;

•

(c)

  that the order or award has been obtained by fraud;

•

(d)

  that any finding or decision of the Court in any matter is erroneous in point of law; or

•

(e)

  that some other specific illegality not mentioned above, and substantially affecting the merits of the matter, has been

committed in the course of the proceedings

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•

Tax Appeal Board decisions can be appealed to the 

Court of Appeal 

according

to Section 8(7) and 9 of the Tax Appeal Board Act:

I.

Appeal lies 

only

 on questions of law and 

not

 questions of fact.

II.

Appeal to be filed within 

21 days

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Appeal against decisions of the Environmental

Commission on questions of law to the Court of

Appeal

•

Section 86  & 87of EMA Act require:

•

“….if dissatisfied with the decision of the Commission as being 

erroneous in

point of law

, may, within 

twenty-one

 days after the delivery of the decision or

within such other time as may be prescribed…”

•

by— (a) filing with the Registrar a notice in writing, in the prescribed form,

identifying the specific point or points of law alleged to be in error 

and

requesting the Commission to 

state and sign a case 

for the opinion of the

Court of Appeal;

•

(2) The case shall set forth 

the facts 

and 

the determination 

of the Commission

relevant

 to the 

specific point or points of law alleged to be in error

,

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Equal Opportunity Tribunal to Court of Appeal

•

Section 50 says any party is entitled to a right of appeal to the Court of Appeal

on limited grounds;

I.

These grounds relate to the jurisdiction of the Tribunal previously raised before the

Tribunal, the Tribunal exceeded its jurisdiction;

II.

 order or award obtained by fraud;

III.

 erroneous finding in law;

IV.

 wrong finding of fact with leave from the Court of Appeal and some specified illegality.

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13.

Scope of the CPR as it relates to appeals to the

High Court:

•

Governed by Part 60 of the CPR

I.

Appeal is done by fixed date claim form entitled under the enactment that the appeal is

being made;

II.

The Statement of Case must state the decision that is being appealed, the findings of fact

made by the tribunal or person and the grounds of appeal;

III.

Date of the first hearing is between the 28

th

 and 56

th

 day after the issue of the claim;

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IV.

The claim form and statement of case has to served within 28 days of the notice of

the decision;

V.

Amendments without permission can occur no less than 7 days before the first

hearing and permission can be given at the first hearing.

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14.

Scope of the CPR as it relates to appeals to the

Court of Appeal:

•

Part 64.1 does not deal with appeals to the Court by way of case stated (part

61) nor appeals an appeal or application to the court for which other

provision is made by these Rules (i.e. appeals to the High Court)

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15.

Timeline to file notice of appeals

•

Part 64.5 sets out the timeline for filing notice of appeals:

I.

Within 

7 days 

of the decision for procedural appeals;

II.

Within 

42

days

 of the decision in substantive appeals;

III.

Within 

14

days

 of the decision where the party needs leave to appeal e.g. for appeal

of costs.

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16.

Extension of Time to file Notice of Appeals

•

The Court of Appeal applies 

Roland James v AG of TT 

Civ App No. 44 of 2014.

Roland James

 sets out that the test is to apply the Part 26.7 factors (as

guidance and not a threshold test), in deciding to exercise their discretion the

Court uses the overriding objective (Part 1.1.(2) of the CPR) and weight

attached to each factor would be determined by the circumstances of the

case. See 

AG of TT v Susan Marrison 

Civ. Appeal No. P206 of 2018.

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17.

Service of the Notice of Appeal

•

Part 64.6 makes clear  that the notice of appeal has to be served forthwith.

Cristop Ltd v Partap and Partap 

Civ. App. No. S051 of 2017 gives useful

guidance from Pemberton JA. In 

Critop Ltd

 the notice was served 188 days

after it was filed.

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I.

The CPR does not provide an express sanction for failing to observe the provisions of

this rule.

II.

An application  for an extension of time simpliciter should be made as a lack of an

application may operate against the appellant;

III.

The word “forthwith” carries different meanings depending on the context. In some

cases it can mean immediate and in others it can be within a reasonable time.

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18.

Counter Notice

•

Part 64.7 allows a party to serve a counter-notice of appeal that complies

with Part 64.4.

•

The counter notice must be filed within 

14 days

 of receiving the notice of

appeal;

•

Served forthwith on all the parties and any other person the court directs.

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19.

According to Part 64.4, a notice of appeal

has

•

To identify the decision that is being appealed;

•

Identify in the decision the findings of facts and findings of law that are being

challenged;

•

Set out the grounds of the appeal;

•

State the order that the appellant is seeking;

•

Indicate any power that the appellant wishes the court to exercise;

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20.

In general the grounds in the Notice of

Appeal are linked to whether it is a

procedural or substantive appeal:

•

Procedural Appeals

•

Irrational exercise of discretion by the trial judge;

•

trial judge was wrong on the law

•

serious procedural irregularities

45

•

Substantive Appeals:

•

error of law;

•

finding of fact;

•

unlawful exercise of discretion

•

fresh evidence has arisen

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21.

The CPR prescribes the form of the Notice

of Appeal:

•

A notice of appeal must set out the grounds of the appeal (Part 64.4(1)

•

Part 64.4.(5) prescribes how the grounds of appeal should be set out:

•

concise with distinct heads;

•

consecutively numbered; and

•

without any argument or narrative.

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•

Part 64.4(6) permits the court, with or without application, to strike out grounds of appeal

that are vague or in general or discloses no grounds of appeal.

•

Part 64.9 (procedural appeals) submissions to be filed within 21 days of the Notice of Appeal unless the Court

extends time.

•

Part 64.13(1(c) (substantive appeals) provides that failure to file written submissions within the time

stipulated entitles the other party to apply, and the Court of Appeal to show cause , for it to be struck out

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22.

STRIKE OUT

23.

  Amendment

•

Part 64.4(7) allows, only in substantive appeals, for an appellant to 

amend

 his

grounds without permission within 28 days of receiving notice from the court per

Part 64.8(b) and (c) that a transcript of evidence and judgment is prepared or

notice of a delay in evidence under Part 64.11(8).

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•

Part 64.4(8) provides that the Appellant may apply to the Court to

amend her Notice of Appeal

•

Part 64.4(8) restricts an appellant from relying on a ground not

mentioned in his notice of appeal without the permission of the

court.

50

•

Part 64.4(9) allows the court to consider grounds not set out in the notice of

appeal but they cannot make its decision on that ground without giving the

respondent sufficient opportunity to contest that ground.

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24.

Tips and Advice on Preparing Notice of Appeal

•

Follow the structure set out in the CPR for preparing the notice of appeal.

•

The Grounds of Appeal should flow from the findings of fact and law that are being

challenged;

•

Blackstone  2019 – grounds of appeal should 

specifically

specifically

 identify as 

concisely

concisely

 as possible the

respects  in which the decision is wrong  or unjust through procedural error or other irregularity.

This is not the skeleton argument.

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•

Identify and understand the legal principle(s) to be applied to resolve the

ground;

•

Review the judgment of the trial looking for the following:

⁻

Did the trial judge resolve each of the issues in the case;

⁻

Did the findings of facts that the judge made came through admissible evidence i.e.

either through agreed and unagreed documents or a witness statement;

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⁻

Did the judge use the right legal test to deal with the case;

⁻

If the judge applied the right test, did the judge apply the test properly

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25.

What is an error of law?

•

E.g.1   The learned judge was wrong as a matter of law because

he or she construed section 4 of the Conveyancing and Law of

Property Act as permitting oral agreements for an option to

purchase land;

•

Eg. 2  the learned judge was wrong as a matter of law because he

construed clause 10 of the Bank’s pension trust Deed as

permitting the management committee to pay for pensioners

holidays in Barbados

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•

E.g. 3 The learned judge was wrong as a matter of law in finding as a

fact that Mr. Joshua Hamlet is the most handsome lawyer in the

country when there was no evidence or sufficient evidence to justify

such a finding

•

E.g.4  The learned judge was wrong as a matter of law in the exercise

of her discretion to extend time for filing the Notice of Appeal by

failing to have any or any due regard to the material considerations of

six separate instances of delay over eighteen months.

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Raising a new point at appeal that was not raised

below

•

Butterworths Civil Court Precedents [Division F on Appeals] quotes the

judgment of Haddon-Cave LJ in Singh v Dass [2019] EWCA 360. He said

•

“16.First, an appellate court will be cautious about allowing a new point to be

raised on appeal that was not raised before the first instance court.

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•

17. Second, an appellate court will not, generally, permit a new point to be raised on

appeal if that point is such that either (a) it would necessitate new evidence or (b), had it

been run below, it would have resulted in the trial being conducted differently with

regards to the evidence at the trial (Mullarkey v Broad[2009] EWCA Civ 2 at [30] and

[49]).

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•

18. 

Third, even where the point might be considered a 'pure point of law', the

appellate court will only allow it to be raised if three criteria are satisfied: (a) the

other party has had adequate time to deal with the point; (b) the other party has not

acted to his detriment on the faith of the earlier omission to raise it; and (c) the

other party can be adequately protected in costs (R (on the application of

Humphreys) v Parking and Traffic Appeals Service[2017] EWCA Civ 24 at [29]).”

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•

Nourse LJ said in 

Pittalis v Grant

 [1989] QB 605 on pure points of law

•

“Even if the point is a pure point of law, the appellate court retains a discretion to

exclude it. But where we can be confident, first, that the other party has had opportunity

enough to meet it, secondly, that he has not acted to his detriment on the faith of the

earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our

usual practice is to allow a pure point of law not raised below to be taken in this court.

Otherwise, in the name of doing justice to the other party, we might, through visiting the

sins of the adviser on the client, do an injustice to the party who seeks to raise it."

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