Introduction
In January 2021, the AIFC Academy of Law published a summary of the case Nursultan Aliyev v Proportunity Management Company Ltd (“ Nursultan Aliyev ”) . It outlined the background, legal issues, and the dispute. In this article, we will revisit the case and take a deep dive into the obiter dictum of the Court of Appeal's (“ CA ”) judgment. We will look at the nature of an appeal, further evidence in an appeal, as well as the application for permission to appeal.
What is 'Obiter Dictum'
Obiter Dictum is the Latin phrase meaning 'other things said'. That is, passages in a judicial opinion which is not necessary for the decision of the case before the court. As opposed to Ratio Decidendi (which is the Latin phrase meaning 'the rationale for the decision', that is the principle that the case establishes), such statements lack force of precedent but is nevertheless significant.
Take Nursultan Aliyev as an example. The ratio decidendi would be the paragraphs that explain why the CA has no jurisdiction to entertain the application for permission to appeal in this case, whereas the obiter dictum would be the observations made by Justice Sir Stephen Richards if 'jurisdiction had existed'.
'My decision that the Court of Appeal has no jurisdiction to entertain the application for permission to appeal makes it unnecessary to deal with the substance of the application. It may be helpful, however, for me to indicate briefly that I agree with the decision of the Court of First Instance and if jurisdiction had existed I would have refused permission to appeal for the reasons summarized below .'
Nature of appeal
In general, the nature of appeal is 'by way of rehearing'. These words do not mean that common law courts 'rehear' the case afresh. It is only a rehearing on the documents. As described by Lord Wright in Powell v Streatham Manor Nursing Home (1935):
'It is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not rehear the witness. It only reads the evidence and rehears the counsel. Neither is it a reseeing court.'
The AIFC Court Rules (“ Rules ”) are in line with this general common law rule. Part 29 of the Rules governs appeals. Rule 29.44 provides 'every appeal will be limited to a review of the decision of the lower court ' , unless a re-hearing is necessary. This indicates normally the appellate court would consider the matter only on the evidence used in the court below and the whole course of the trial.
However, rehearing means the common law courts redetermines the issues as at the date of the rehearing. Therefore, the courts may consider facts that have occurred since the trial, the relevant change has been made in the law, and if appropriate fresh evidence or new points not put before the court below.
Adducing Further Evidence
As noted above, although common law courts will generally be slow to receive fresh evidence on an appeal, one may nonetheless be permitted to do so on an exceptional course. In the AIFC jurisdiction, this is confirmed by Rule 29.46 of the AIFC Court Rules which provides 'unless it orders otherwise, the appeal Court will not receive (1) oral evidence; or (2) evidence which was not before the lower court'.
The question is then what may invoke the exception. In Ladd v Marshall (1954) , Denning LJ said further evidence is admissible on an appeal where:
'… First, [such evidence]… could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such which is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible '
In other words, it is unlikely for common law courts to exercise its discretion to admit fresh evidence if there are no satisfactory reasons to explain why the evidence in question had not been adduced at the proper time and if it is not sufficiently relevant, influential, and reliable.
Although Ladd v Marshall was not specifically mentioned in Justice Sir Stephen Richard's judgment, shades of it could be found in paragraph 16. When considering whether Mr. Aliyev's fresh evidence should be admitted, Justice Sir Stephen Richards considered a range of factors, including 'the specific opportunity given to the parties ... to file additional evidence within a set timetable before the hearing of the claim', 'the extent to which fresh evidence could have been obtained with reasonable diligence in time for that hearing', and' relevance and reliability of aspects of the fresh evidence'.
However, if one wishes to adduce evidence as to matters which have occurred subsequent to the date of the trial or hearing, the test in whether determining permission should be given is less stringent, although such evidence will not be admitted as a matter of course.
Permission to Appeal
Referring to Rule 29.6, Justice Sir Stephen Richards considered whether Mr. Aliyev's appeal would have a 'real prospect of success', or whether there would be 'some other compelling reason why the appeal should be heard'.
In Swain v Hillman (2001) , Lord Woolf described the term 'no real prospect of success' as follows:
'The words “no real prospect of being successful or succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success ... they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.'
Therefore, the test for the first limb of Rule 29.6 is whether the applicant for permission to appeal can show he or she has a case with reasonable chances of success on appeal but without having to be 'probable'.
As for the alternate test 'some other compelling reason why the appeal should be heard', Lord Woolf in Smith v Cosworth Casting Processes Ltd (1997) explained succinctly in the following terms:
'There can be many reasons for granting leaves even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.'
In Nursultan Aliyev , Justice Sir Stephen Richards decided, perhaps for the reasons explained in the preceding subheading, that it is unlikely that the fresh evidence that Mr. Aliyev purported to rely on would be received by the appellate court, thereby rendering a limited chance of success in his appeal. Rule 29.6 (1) would not be satisfied. Nor is there a question of importance for the court to clarify for the public advantage. Rule 29.6 (2) would not be satisfied either. As a result, Mr. Aliyev's application for permission to appeal would be dismissed in any event if the AIFC Court of Appeal had jurisdiction to consider it.
However, it is important to note that, even if the AIFC Court takes the view that there is a reasonable prospect of success or there are other compelling reasons that the appeal should be heard, the Court nevertheless retains a discretion as to whether to grant permission. This is provided by the words 'permission to appeal may be given' and it is in line with the general common law approach. One rationale is to prevent creating an open-ended appeals system which may encourage the view that unsuccessful litigants 'could have two bites at the first instance cherry merely because the first bite was hurried' (per Simon Brown J in London Underground Ltd v National Union of Railwaymen (No.2) (1989) )
Conclusion
Appeals serve multiple purposes for common law courts. In addition to preventing injustice to individual litigants, it also has a public interest in ensuring the proper administration of justice by setting out clear, consistent and reliable law and rules, as well as establishing precedents. On the other hand, however, it is equally important to understand that appeals create significant workload for courts and may extend the time and costs of obtaining a final resolution to a case. Therefore, the appeal system is designed in a way to reject unmeritorious appeals in an attempt to strike a balance between the above opposing interests.
Through the obiter dictum of Justice Sir Stephen Richards in Nursultan Aliyev, this article has covered some aspects of the common law appeal system. More specifically, it has explained the nature of appeal is by way of rehearing, the Ladd v Marshall test for adducing further evidence in appeal, and the meaning of the two limbs under Rule 29.6 for permission to appeal. The ultimate message is that an appeal is not an automatic further stage in a case, nor is it 'an opportunity to relitigate the case'.
