Appellate Review CASES

In English law, appellate review is the process by which a higher court examines a lower court or tribunal’s decision to correct legal error and serious procedural unfairness. It is not a re-trial on the merits. As a rule, appeals proceed on the existing record, with limited scope for new points or fresh evidence, and the standard of review varies for law, fact and discretion.

Definition and principles

Purpose and scope. The appellate court’s role is to ensure that the law was applied correctly, essential facts were found without material error, and the procedure was fair. Most appeals require permission, which filters out weak challenges. The central question is whether the decision was wrong or unjust because of a serious procedural or other irregularity.

Standards of review. Errors of law are corrected: the appellate court decides the point for itself. Findings of fact are given deference because the trial judge saw and heard the evidence; interference is rare and generally limited to findings that were plainly wrong or unsupported by the evidence. Exercises of discretion (for example, case management or costs) are not overturned unless the judge erred in principle, took account of irrelevant factors, ignored relevant ones, or reached a plainly wrong result.

New points and fresh evidence. A wholly new point of law may be allowed if no further facts are needed and it is fair to do so, but the court will be cautious. Fresh evidence is exceptional: the party must show it could not have been obtained with reasonable diligence for the trial, that it would probably have an important influence on the result, and that it is apparently credible (the well-known Ladd v Marshall criteria, now reflected in modern rules).

Common examples

• Misapplication of legal tests: the judge applied the wrong standard (for example, in summary judgment, strike out, or injunctions) or misdirected themselves on the elements of a claim or defence.
• Findings outside the evidence: a critical factual finding lacks any proper evidential basis or ignores unchallenged, decisive evidence.
• Discretionary decisions: a case management or costs order is plainly wrong because relevant factors were overlooked or irrelevant ones were given decisive weight.
• Procedural unfairness: refusal of an adjournment or disclosure that deprives a party of a fair chance to meet the case; reasons that are so inadequate that the parties cannot understand the basis of the decision.

Legal implications

• Remedies on appeal: the court may affirm, set aside, vary or substitute its own order, or remit the case for re-hearing with directions. It may order a new trial if fairness requires it.
• Permission and time limits: permission to appeal is usually required and must be sought promptly under the procedural rules; targeted grounds and a concise skeleton argument are essential.
• Stays and enforcement: an appeal does not automatically stay enforcement. A stay is discretionary and depends on the merits and the balance of prejudice.
• Costs: costs follow the event but are discretionary. Unsuccessful appellants risk adverse costs; successful respondents can sometimes uphold the result on different reasons without cross-appealing.

Practical importance

For appellants, identify precise, material errors and match each to the correct standard of review. Keep grounds short and focused, marshal the key passages of evidence and reasons, and explain why the error affected the outcome. For respondents, defend the decision by showing it was open to the judge on the evidence, that any misstep was immaterial, or that discretionary choices were within the legitimate range. Both sides should prepare clear, well-signposted bundles and transcripts: appellate courts prize clarity, economy, and principled argument.

Appellate review vs judicial review

Appellate review corrects errors made by a lower court or tribunal in a specific case. The appeal court asks, “Was the decision wrong?” It can correct errors of law, very rarely overturn fact-findings (only if plainly wrong), and will interfere with discretion only if the judge erred in principle or reached a plainly wrong result. It usually decides the point itself and may substitute its own order.

Judicial review is the High Court’s supervisory jurisdiction over public bodies (ministers, councils, regulators, some tribunals). The court asks, “Was the decision-making lawful, fair, and rational?” It does not re-try the merits. If unlawful, the usual remedy is to quash and send it back for a fresh decision.

How they differ in practice

1) Decision under scrutiny

• Appeal: decisions of courts/tribunals within the ordinary hierarchy (e.g., County Court → High Court → Court of Appeal).

• Judicial review: decisions of public authorities (and some tribunals when no adequate appeal lies).

2) Question being asked

• Appeal: correctness of outcome (law afresh; facts given deference; discretion interfered with only on familiar grounds).

• JR: legality of the process and decision (powers used for proper purpose, relevant considerations, fairness, rationality; proportionality where rights are engaged).

3) Evidence and procedure

• Appeal: proceeds on the trial record; fresh evidence is exceptional (think Ladd v Marshall-type criteria).

• JR: decided mainly on written evidence (statements + documents); no oral evidence unless exceptional. Public bodies owe a duty of candour to lay relevant material before the court.

4) Remedies

• Appeal: affirm, vary, substitute, or order a retrial; it can make the decision the lower court should have made.

• JR: quashing, prohibiting, mandatory orders, declarations (damages are rare). The court usually remits for a lawful re-decision; it does not substitute merits choices except in rare, inevitable-outcome situations.

5) Gateways and timing

• Appeal: usually needs permission; time limits set by the relevant rules; an appeal does not automatically stay enforcement.

• JR: must be filed promptly and within three months (often shorter in planning). There’s a permission stage to filter weak claims. JR may be refused if a suitable alternative remedy (like a statutory appeal) exists.

6) Standing

• Appeal: parties to the case (or those granted permission).

• JR: anyone with a “sufficient interest”—can include NGOs or representative claimants depending on context.

When to use which (quick examples)

• The judge misapplied the summary judgment test or awarded disproportionate costs → Appeal.

• A regulator made a licensing decision by ignoring relevant evidence, or a council consulted unfairly before adopting a policy → Judicial review.

• A tribunal misdirected itself on a point of law and there’s a statutory appeal route → use the appeal, not JR (JR is residual).

See also: Error of law; Findings of fact; Discretionary decisions; Fresh evidence; Permission to appeal; Standard of review; Reasons; Procedural fairness.