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The appeals process exists for those who are unhappy with the outcome of a case. An appellant can apply to a higher, more authoritative, court to review the judgement of a lower court. Apart from the appeals process, a litigated claim cannot be brought again in another court.
Appeals
Civil cases start in the County Court, High Court or, for employment cases, in the Employment Tribunal. Whether the case is started in the County Court or the High Court depends on the value of the claim. County Court decisions are appealed in the High Court, and employment Tribunal decisions are appealed in the Employment Appeal Tribunal. As a solely appellate court, the Court of Appeal hears appeals from the High Court, including both cases originating from the High Court and County Court, and from the Employment Appeal Tribunal. Lastly, Court of Appeal decisions are appealed in The Supreme Court which serves as the court of final appeal in the UK. In rare cases, High Court decisions can be appealed directly to The Supreme Court.
Grounds of Appeal
To appeal a decision, you must file with the court the grounds for your appeal. There are many grounds that could lead to an appeal. For example, if a judge fails to give adequate reasons for his decision, or if the judgement was founded on an error of law. Generally, an appeal court is very reluctant to intervene when an appellant is seeking to reverse a trial judge’s finding of fact, and will only do so if the decision was so plainly wrong so as to be entirely unreasonable. Nonetheless, many kinds of judicial decisions can be overturned with the appeals process, including judgements, costs orders or even decisions refusing permission to appeal.
You should keep in mind there is a time limit for filing an appeal. This can be as little as 21 days depending on which court your case was initially heard.
If a claim is unsuccessful at a lower court or at an appeal court, it is generally not possible to bring the same claim in another court because of the doctrine of res judicata.
Res Judicata
Res judicata, Latin for “a matter decided”, is a legal principle that restricts the courses of action that can be pursued in cases that have previously been heard in a court or tribunal. This is to maintain the public policy of finality in litigation and to avoid wasted time and costs.
To establish a res judicata, the parties and action need to be identical to those of a previous case, and the previous decision must have been final and made by a court of competent jurisdiction on the merits of the case rather than on procedure.
Estoppel
The two doctrines under res judicata are cause of action estoppel and issue estoppel. An estoppel is a judicial device whereby a court may prevent or “estop” a party from doing something. Cause of action estoppel prevents a party from pursuing the same claim a second time, whereas issue estoppel prevents a party from raising the same claim in court again as long as the ruling on that issue was central to the final decision of the previous case. The two doctrines are available to the party against whom an action is brought as a defence to the other party’s claim.
Res judicata and foreign judgements
While most commonly relied upon in domestic settings, res judicata applies equally to foreign judgements. In the case of El Haddad –v- Al Rostamani and others [2021] EWHC 1892 (Ch) (currently under appeal), as the issue of whether the claimant and the first defendant were in a partnership had already been determined by a court in Dubai, Dr. El Haddad was “estopped” from raising the same issue again in the English High Court.
In The Republic of India –v- Steamship Co. Ltd. (The Indian Grace) it was held that a previous judgement in an Indian court created cause of action estoppel even though the claimant sought a different relief in the second instance.
It seems then as long as the underlying requirements are met, Res Judicata can be relied on as a defence against re-litigated claims, regardless of whether the court in which the claim was first heard was foreign or domestic.
Limitations of res judicata
However, there are exceptions to Res Judicata. In Takhar –v- Gracefield Developments Ltd and others it was held that as the decision on the issue was “vitiated” by fraud, it cannot bind the parties. As such, the defence of issue estoppel was rejected and the appeal allowed in that instance. The same applies to cause of action estoppel in cases of fraud (Zurich v Hayward [2017] AC 142).
Further, in Arnold –v- National Westminster Bank plc [1991] 2 AC 93, the court decided that if the party bringing the claim a second time could show materially altered circumstances than at the first time so as to cause injustice were the doctrine of issue estoppel was applied inflexibly, the other party would not be able to establish a res judicata under issue estoppel.
If your case is similar to these, res judicata might not apply for you and the other party would be unable to rely on res judicata as a defence against you bringing the same claim or raising the same issue a second time.
Henderson abuse
Although presenting substantial overlap with the principles of res judicata, the law surrounding abuse of process which arose from the judgement of the landmark case of Henderson v Henderson [1843-60] All E.R. Rep. 378 is separate from res judicata. Henderson requires litigating parties to bring their whole case before the court in the first instance, preventing parties from re-raising arguments, claims or defences they could have or should have known about but did not bring the first time. Operating distinctly to res judicata, many parties use Henderson abuse in parallel or as an alternative to a res judicata plea.
With this in mind, it is important to do your due diligence when first bringing your claim to ensure all aspects of your case are before the court; regardless of whether you brought the issue the first time, you may not be allowed to raise it the second.
Khizar Arif is a leading lawyer in Giambrone & Partners litigation and dispute resolution team. Initially he was called to the Bar of England in 2001, Khizar was then admitted to the Roll of Solicitors, attaining Higher Rights of Audience shortly thereafter. He holds a Master of Laws degree (LL.M.) focused on international business and maritime law from the University of Hamburg, Germany. Khizar regularly appears in the County Courts and the High Court, advises on all aspects of dispute resolution and litigation, from pre-action stage to settlement or trial through to enforcement. He helps clients in informal negotiations and, if appropriate, on alternative dispute resolution methods such as mediation and arbitration.
To learn more about how Khizar Arif and Giambrone & Partners can help you, or for additional information about how to go about appeals please email his clerk Sam Groom SG@giambronelaw.com or please click here