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23.4
The CPR approach
CPR 52.11 provides for the scope of appeals to be limited to a review of the lower
court's decision rather than a re-hearing. It provides :-
"(1)
Every appeal will be limited to a review of the decision of the lower court unless—
(a)
a practice direction makes different provision for a particular category of
appeal; or
(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.
(2)
Unless it orders otherwise, the appeal court will not receive—
(a)
oral evidence; or
(b)
evidence which was not before the lower court.
(3)
The appeal court will allow an appeal where the decision of the lower court was—
(a)
wrong; or
(b)
unjust because of a serious procedural or other irregularity in the proceedings
in the lower court.
(4)
The appeal court may draw any inference of fact which it considers justified on the
evidence.
(5)
At the hearing of the appeal a party may not rely on a matter not contained in his
appeal notice unless the appeal court gives permission."
The migration from re-hearing to review under CPR 52.11 has not been absolute.
Thus, sub-rule (1) itself preserves re-hearings where required by the interests of justice
or provided for by practice direction.
Sub-rule (4) allows the appellate court to re-
assess the lower court's treatment of the evidence to the extent of drawing inferences
from the findings below. And while Sub-rule (2) provides that fresh evidence is
generally not received, the courts have in practice given great weight to the Ladd v
Marshall principles as a basis for exercising the discretion to admit such fresh
evidence.
Notes
So far the only relevant practice direction is 52 PD s9.1 which provides for re-hearings where the
appeal is from a minister, person or other body who "(1) did not hold a hearing to come to that
decision; or (2) held a hearing to come to that decision, but the procedure adopted did not provide for
the consideration of evidence".
Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 at 2325; Hamilton v Al Fayed
(Unreported) English Court of Appeal, December 21, 2000.
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