Encyclopaedia Britannica, 11th Edition, "Apollodorus" to "Aral" / Volume 2, Slice 3

by Various

The Court of Appeal.—The court of appeal, constituted under the Judicature Acts, is one of the two permanent divisions of the Supreme Court of Judicature. As now constituted the court consists of ex officio members and five ordinary members, styled lords justices of appeal. The ex officio members are the lord chancellor, every person who has held that office, the lord chief justice, the master of the rolls, and the president of the probate, &c., division.

The ordinary business of the court is carried on by the lords justices under the presidency of the master of the rolls, who in 1881 ceased to be a judge of the High Court (Judicature Act 1881, § 2). The court usually sits in two divisions of three judges, but on occasion a third court can be formed, with the assistance of the other ex officio judges, in the absence of the ordinary judges from illness or public engagements, or to deal with arrears of business. The quorum for final appeals is three, for interlocutory appeals two judges.

The court of appeal has succeeded to the appellate authority exercised (1) in the case of equity and bankruptcy matters by the lord chancellor and the lords justices of appeal in chancery (Judicature Act 1873, § 18); (2) in the case of common law matters, by the court of exchequer chamber, as a court of error, and the superior courts of common law sitting to review the decisions of single judges of these courts sitting with or without a jury at first instance in civil actions; (3) in the case of divorce or probate causes by the full court of divorce (Judicature Act 1881, § 9); (4) in the case of admiralty causes by the king in council or the judicial committee of the privy council; (5) in the case of applications for new trials in jury actions by the king’s bench division (Judicature Act 1890, § 1).

The court never had jurisdiction to hear an appeal in any criminal cause or matter, but was able to review by writ of error decisions of the king’s bench division in such cases, unless the court for crown cases reserved had dealt with the question under the Crown Cases Act 1848. This procedure has been abolished by the Criminal Appeal Act 1907. Instances of procedure by writ of error were rare. Those best worth notice are the cases of the Tichborne claimant on his conviction of perjury, and the case of C. Bradlaugh on the sufficiency of the indictment against him for publishing the Fruits of Philosophy.

The appellate jurisdiction of the court as now exercised entitles the court to hear and determine (1) appeals from every judgment or decree of every division of the High Court in all civil cases in which such judgment is not declared final by statute; (2) applications for a new trial in civil cases tried in the king’s bench division by judge and jury which, until 1890, were dealt with by two or more judges in that division; (3) appeals in matters of civil practice and procedure from decisions of a single judge in chambers, which, until 1894, were dealt with in a divisional court or by a judge in open court; (4) appeals from the chancery courts of Durham (Palatine Court of Durham Act 1889) and Lancaster (act of 1890, c. 23) and the Liverpool court of passage (Anderson v. Dean, 1894, 2 Q.B. 222), and on error in a record of the mayor’s court of London (Le Blanche v. Heaton Telegram Co., 1876, 1 Ex.D. 408); and from county courts under the Agricultural Holdings Acts and Workmen’s Compensation Acts; (5) appeals on questions of law from decisions of the railway commissioners in England (Railway and Canal Traffic Act 1888).

The court of appeal also exercises the lunacy jurisdiction of the lord chancellor, but in regard to this the jurisdiction of the court is for the most part original and not appellate.

The jurisdiction of the court of appeal is excluded or limited in the following cases:—(1) judgments of the High Court—(a) where its jurisdiction is consultative only; (b) where there is an appeal to the High Court from an inferior court of civil jurisdiction; (c) where there is an appeal to the High Court from any court of person, unless in cases (b) and (c) leave be obtained of the court by which the order is made, or of the court of appeal; (2) orders of the High Court in registration and election cases except with the like leave; (3) orders made by consent of parties, or as to costs only which by law are left to the discretion of the court; (4) certain interlocutory orders mentioned in § 1 of the Supreme Court of Judicature (Procedure) Act 1894, except by leave of the judge appealed from or of the court of appeal (5) orders of the admiralty division in cases of prize, the appeal from which lies to His Majesty in Council; (6) where the decision of any court whose jurisdiction was transferred to the High Court is declared by statute to be final; (7) matters which from their nature were not appealable to any court before the Judicature Acts, or in which the court of appeal has no means of enforcing or executing its judgment. For example, it was held in the House of Lords, in Cox v. Hakes, 1890, 15 A.C. 506, that no appeal lies from the order of a judge discharging a prisoner under a writ of habeas corpus. “If,” said Lord Herschell, “the contention of the respondent is to prevail, the statute has effected a grave constitutional change”; and later, “if” the High Court “has inherited the combined powers of the courts whose functions were transferred to it, but none of them had any jurisdiction or authority to review a discharge by a competent court under a writ of habeas corpus, or to enforce the arrest of one thus freed from custody ... it seems to me to follow, that however wrong the court of appeal might think a discharge to have been, it would have been powerless to order a rearrest, or at least to enforce such an order.”

The procedure of the court of appeal is regulated by the rules of the Supreme Court. A distinction is drawn between appeals from a final judgment or order (which, unless the parties consent to a smaller quorum, must be heard by three judges) and an appeal from an interlocutory order (which may be determined by two judges of the court of appeal).

In the case of appeals from a final or interlocutory “judgment,” or from an order, including applications for a new trial, the appeal must be brought within three months from the time when the judgment or order is signed, entered or otherwise perfected, or in the case of refusal of an application from the date of refusal. The appeal is by notice of motion, which except in cases of application for a new trial, need not state the grounds of appeal. Fourteen clear days’ notice of the motion must be given by the appellant to the other party, the respondent.

In the case of appeals from an interlocutory order, or from a final order, or from an order made in any matter which is not an action, or from an order made in chambers, the appeal must be brought within fourteen days by motion, of which four clear days’ notice must be given by the appellant to all parties directly affected by the appeal. Controversies have arisen as to the meaning of the term “interlocutory,” which (in the absence of any authoritative definition) the court of appeal settles as they arise. The test most generally accepted is that a judgment or order is final if, as made, it finally disposes of the rights of the parties in a manner equally conclusive between them. The court may by special leave allow appeals of either class to be brought after the time above limited. The respondent may by proper notice bring a cross appeal against any portion of the judgment or order made below with which he is dissatisfied. The court has power to order the appellant to find security for the costs of an appeal, if special circumstances, such as insolvency or poverty or foreign domicile or the like, make the giving of security desirable. The court of appeal “rehears” the case. Under ordinary circumstances it does not permit a new case to be set up inconsistent with the case as presented below; and it is content with the judges’ notes, or a transcript of the evidence given below, and with a note or transcript of the judgment appealed from, but has power on special grounds to receive fresh evidence either viva voce or on affidavit. The court may call in for its assistance assessors who are experts on the matters of fact or science involved in the appeal, and usually does so in cases arising out of collisions at sea.