PART 35APPEAL TO THE HIGH COURT BY CASE STATED

Contents of this Part

When this Part applies

rule 35.1

Application to state a case

rule 35.2

Preparation of case stated

rule 35.3

Duty of justices’ legal adviser

rule 35.4

Court’s power to vary requirements under this Part

rule 35.5

When this Part applies35.1

This Part applies where a person wants to appeal to the High Court by case stated—

a

under section 111 of the Magistrates’ Courts Act 1980755, against a decision of a magistrates’ court; or

b

under section 28 of the Senior Courts Act 1981756, against a decision of the Crown Court.

[Note. Under section 111 of the Magistrates’ Courts Act 1980, ‘any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved’.

Under section 28 of the Senior Courts Act 1981, ‘any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.’

Under section 28A of the 1981 Act757, the High Court may ‘reverse, affirm or amend the determination in respect of which the case has been stated; or remit the matter to the magistrates’ court, or the Crown Court, with the opinion of the High Court, and may make such other order … as it thinks fit.’ Under that section, the High Court also may send the case back for amendment, if it thinks fit.]

Application to state a case35.2

1

A party who wants the court to state a case for the opinion of the High Court must—

a

apply in writing, not more than 21 days after the decision against which the applicant wants to appeal; and

b

serve the application on—

i

the court officer, and

ii

each other party.

2

The application must—

a

specify the decision in issue;

b

specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court will be asked;

c

indicate the proposed grounds of appeal; and

d

include or attach any application for the following, with reasons—

i

if the application is to the Crown Court, an extension of time within which to apply to state a case,

ii

bail pending appeal,

iii

the suspension of any disqualification imposed in the case, where the court can order such a suspension pending appeal.

3

A party who wants to make representations about the application must—

a

serve the representations on—

i

the court officer, and

ii

each other party; and

b

do so not more than 14 days after service of the application.

4

The court may determine the application without a hearing.

5

If the court decides not to state a case, the court officer must serve on each party—

a

notice of that decision; and

b

the court’s written reasons for that decision, if not more than 21 days later the applicant asks for those reasons.

[Note. The time limit for applying to a magistrates’ court to state a case is prescribed by section 111(2) of the Magistrates’ Courts Act 1980. It may be neither extended nor shortened.

Under section 39 of the Road Traffic Offenders Act 1988758, a court which has made an order disqualifying a person from driving may suspend the disqualification pending appeal. See also rule 29.2.

The Practice Direction sets out a form of application for use in connection with this rule.]

Preparation of case stated35.3

1

This rule applies where the court decides to state a case for the opinion of the High Court.

2

The court officer must serve on each party notice of—

a

the decision to state a case, and

b

any recognizance ordered by the court.

3

Unless the court otherwise directs, not more than 21 days after the court’s decision to state a case—

a

in a magistrates court, the court officer must serve a draft case on each party;

b

in the Crown Court, the applicant must serve a draft case on the court officer and each other party.

4

The draft case must—

a

specify the decision in issue;

b

specify the question(s) of law or jurisdiction on which the opinion of the High Court will be asked;

c

include a succinct summary of—

i

the nature and history of the proceedings,

ii

the court’s relevant findings of fact, and

iii

the relevant contentions of the parties;

d

if a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact—

i

specify that finding, and

ii

include a summary of the evidence on which the court reached that finding.

5

Except to the extent that paragraph (4)(d) requires, the draft case must not include an account of the evidence received by the court.

6

A party who wants to make representations about the content of the draft case, or to propose a revised draft, must—

a

serve the representations, or revised draft, on—

i

the court officer, and

ii

each other party; and

b

do so not more than 21 days after service of the draft case.

7

The court must state the case not more than 21 days after the time for service of representations under paragraph (6) has expired.

8

A case stated for the opinion of the High Court must—

a

comply with paragraphs (4) and (5); and

b

identify—

i

the court that stated it, and

ii

the court office for that court.

9

The court officer must serve the case stated on each party.

[Note. Under section 114 of the Magistrates’ Courts Act 1980759, a magistrates’ court need not state a case until the person who applied for it has entered into a recognizance to appeal promptly to the High Court. The Crown Court has a corresponding inherent power.

Under section 121(6) of the 1980 Act, the magistrates’ court which states a case need not include all the members of the court which took the decision questioned.

For the procedure on appeal to the High Court, see Part 52 of the Civil Procedure Rules 1998760 and the associated Practice Direction.]

Duty of justices’ legal adviser35.4

1

This rule applies—

a

only in a magistrates’ court; and

b

unless the court—

i

includes a District Judge (Magistrates’ Courts), and

ii

otherwise directs.

2

A justices’ legal adviser must—

a

give the court legal advice; and

b

if the court so requires, assist it by—

i

preparing and amending the draft case, and

ii

completing the case stated.

Court’s power to vary requirements under this Part35.5

1

The court may shorten or extend (even after it has expired) a time limit under this Part.

2

A person who wants an extension of time must—

a

apply when serving the application, representations or draft case for which it is needed; and

b

explain the delay.

[Note. See also rule 35.2(2)(d)(i) and the note to rule 35.2.]