Appeals against a possession order

An appeal against a possession order normally has to be made within 21 days of the date the order was made. An appeal can normally be brought only on a point of law. The rules governing appeals are set out in Civil Procedure Rule (CPR) 52. There is usually a court fee to pay and costs involved in obtaining the supporting documents required such as the transcript of the hearing.

Permission to appeal may only be granted when the appellant can demonstrate they have a reasonable prospect of success, or if there is some other good reason to grant permission.[1] The court can allow an appeal if the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity.[2]

Most successful appeals are brought on a point of law. For example, the judge could have made a wrong decision because they did not correctly apply relevant legislation or the binding decision of a superior court.

Appeal against discretion

It is sometimes possible to appeal against a judge's exercise of discretion, but only if the judge has taken account of an irrelevant fact or not taken account of a relevant one.[3] The court is generally reluctant to overturn a decision made in the exercise of discretion unless it is wholly wrong, even if the appeal court would have made a different decision on the same evidence.[4]

Most possession orders are made in the County Court by a district judge. An appeal is made to the circuit judge (also at County Court level, though a circuit judge may cover a number of different County Courts). 

An appeal against the decision of a circuit judge is to be made to the Court of Appeal in a case tried on the multi-track or to the High Court in a case tried on the fast track.

Permission to appeal can be sought from the judge at the possession hearing, or if this is refused, by an application to the court which would hear any appeal. Alternatively, an application for permission can be made directly to the appeal court.

The first step is to complete Form N161, which is an application for permission to appeal. There are detailed guidance notes accompanying the form to assist in its completion. It details the options available and lists the supporting documents required.

The person appealing must provide all the supporting documents, including a copy of the possession order appealed against and an approved transcript of the relevant court hearing. The transcript can sometimes be obtained at public expense. The court is entitled to refuse to provide it at public expenses where it considers that the appeal has not a good prospect of success.[5]

There is no right of appeal against a decision of an appellate court to give or refuse permission to appeal and the only remedy available in such cases is to apply for judicial review where exceptional circumstances warrant such application.[6]

There is no automatic right to introduce new points on appeal. The appellate court will not admit new evidence, unless it exercises its discretion to do so[7] and the decision would depend on the analysis of relevant factors, such as whether the original decision was made at a trial or at a short summary hearing, the nature of the new point and whether the opposing party would suffer prejudice as a result.[8]

In deciding whether to allow fresh evidence to be introduced, the court can apply the three stage test set down by the Court of Appeal:[9]

• the evidence could not have been discovered with reasonable diligence in time for the hearing or trial

• if available, the evidence would have had an important influence on the case

• the evidence must be credible

The Court of Appeal applied this test in a case where a mistake of the court led to an appeal being dismissed as out of time.[10]

If the appeal is successful the court can set the order aside or, where possession was made on a discretionary ground, vary the order.

Read more about setting aside a possession order and varying or postponing a possession order.

In some exceptional cases, for example when the original possession order was made without the county court considering the Article 8 rights of the occupier despite such a defence having been raised during the possession proceedings (see Public law and human rights defences for more on Article 8), it may be possible to apply to reopen an appeal to the Court of Appeal or the High Court, but only if all the following conditions are satisfied:[11]

• it is necessary to do so in order to avoid real injustice

• the circumstances are exceptional and make it appropriate to reopen the appeal, and

• there is no alternative effective remedy