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‘Courts Of First Instance Exist To Resolve Disputes; Courts Of Appeal And Review Have Quite A Different Function' Discuss

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Par   •  17 Décembre 2012  •  1 108 Mots (5 Pages)  •  1 217 Vues

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‘Courts of first instance exist to resolve disputes; courts of appeal and review have quite a different function’ Discuss.

In France, a distinction has to be made between the Cour de cassation and the Courts of Appeal. Courts of Appeal are jurisdictions “de droit commun” treating both facts and laws on the basis of appeals against decisions made by first instance tribunals. So a court of appeal is both here to resolve disputes arisen and to review the decision made by the TGI or another first instance tribunal. It thus has to determine has also to determine if there was an error in the way the first instance judge came to his decision.

Nonetheless, the cour de Cassation, at the top of the hierarchy, has only a review role, judging only questions of law and not facts. The questions of facts remained decided by the “juges du fond” at the two first ladders of the judicial hierarchy. Cour de cassation reviews the decision and maintain uniformity in the law.

England

An appeal system is necessary to perform a variety of functions. One is to provide an opportunity for the disappointed litigant to test the validity of the decision at first instance. A second is to allow the court ‘to correct an error, unfairness or wrong exercise of discretion which has led to an unjust result’. A third purpose of the appeal system is to preserve some measure of uniformity in the decision making of lower courts. A fourth purpose is to keep the law abreast of changing circumstances and a fifth is to promote public confidence in the law. (Zander)

So, courts of appeal have a broader function than first instance jurisdictions, which only resolve disputes. Even though it also has to treat question of facts, it has to review the first instance decision and correct its errors, while trying to promote uniformity in the rule of law.

1) The increasing reviewing role of the Court of Appeal

Since it has a broader function, and that its decisions weight more, CoA should treat only important cases that matter: Final Report Access to Justice (1996) Lord Woolf recommended that leave to appeal should be required for all interlocutory appeals and that there should be greater uniformity in the procedure for appeal;

the Bowman report said that the Court of Appeal was being asked to consider appeals that were not of sufficient weight or complexity which had already been through one or more levels of appeal). The same considerations of justice, expedition and moderation of costs should apply to appeals as to first instance proceedings. An appeal should no longer be seen as an automatic further stage in a case. A dissatisfied litigant’s right should be not to appeal but to have his request to appeal considered. The requirement of permission to appeal should be the norm. Also appeals should be dealt with in ways proportionate to the grounds of complaint and the subject matter of the dispute.

A big change was the limitation of re-hearing for the CoA, which increases its role not as a dispute resolver but as a reviewer of previous cases. INCREASING ITS REVIEWING ROLE. Under the new rules for civil appeals that came into force in May 2000, there is still reference to re-hearing but this form of appeal is now relegated to a secondary position by the new rule that, subject to two exceptions, ‘every appeal

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