TO APPEAL OR NOT TO APPEAL: INITIAL CONSIDERATIONS
Whether or not to appeal is a significant decision in the conduct of civil litigation. Fundamentally, it involves decision making under uncertainty. In many cases, the choice may seem stark. It may be between accepting a certain but unfavourable result at first instance, or an uncertain prospect of a potentially favourable result (or a potentially costly failure) on appeal.
It goes without saying that the prospect of a successful appeal is attractive: it offers the opportunity to correct a decision made in error and potentially turn an undesired result into a favourable eventual outcome. Accordingly, a decision maker may have an immediate preference to take action and to proceed with an appeal.
However, an appeal may also confirm or even expand an existing unfavourable result, but with added costs consequences: an unsuccessful appellant runs the financial risk of paying not only its own costs, but also the other side’s costs. In that regard, an appeal court has wide-ranging discretion as to costs. It can determine not only the costs of the appeal, but also the costs in the lower court. The stakes are therefore high, especially as the decision to appeal is not necessarily always clear cut and will require careful and balanced consideration.
This article does not seek to offer a ‘blueprint’ for deciding whether or not to appeal in any given case; each case will turn on its own circumstances and will require specific consideration. Instead, it provides a general overview of some of the key principles governing the appeals process, before considering the requirement for permission to appeal, evidence and the grounds for appeal. Understanding this background and what can and cannot be appealed should provide a helpful starting point for managing expectations and facilitating a balanced consideration of the particular circumstances.
Oct-Dec 2022 issue
Slaughter and May