Superior Court Rules

ORDER 86

COURT OF APPEAL: GENERAL

I. PRELIMINARY AND GENERAL

Interpretation and scope

1. (1) In this Order and in Orders 86A, 86B, 86C and 86D?

“appellant” means:

(a) a person who makes or intends to make an appeal to the Court of Appeal (including an appeal initiated in the Supreme Court before the establishment day referred to in section 5 of the Court of Appeal Act 2014 and which is required by law to be continued before the Court of Appeal);

(b) a person who makes or intends to make an application for leave to appeal to the Court of Appeal, in any case in which leave for such an appeal is required by law, and

(c) includes, subject to such modifications as may be necessary, a person who initiates proceedings before the Court of Appeal;

“County Registrar” has the same meaning as in the Circuit Court Rules and, includes where the context requires or permits, any person appointed to act as Registrar to the High Court on Circuit;

“Court of Appeal” means the Court of Appeal and:

(a) in relation to any interlocutory application or procedural application or motion referred to in section 7A(6) of the Courts (Supplemental Provisions) Act 1961, includes the President of the Court of Appeal or any Judge of the Court of Appeal nominated by the President of the Court of Appeal in accordance with that sub-section to hear and determine such an application, and

(b) in relation to any directions in relation to the conduct of any proceedings before the Court of Appeal, includes the President of the Court of Appeal or a Judge of the Court of Appeal nominated by the President of the Court of Appeal under section 7C(1) of the Courts (Supplemental Provisions) Act 1961;

the “court below” means the court (which, for the avoidance of doubt, includes a court-martial or military judge) from which an appeal (or application for leave to appeal) is made to the Court of Appeal, and where the context so admits or requires, includes any tribunal from whose decision a right of appeal lies to the Court of Appeal;

“decision” includes judgment, order, verdict, finding or determination;

“enactment” has the same meaning as in the Interpretation Act 2005;

the “Office” means the Office of the Registrar of the Court of Appeal;

the “Registrar” means the Registrar of the Court of Appeal;

“respondent” includes—

(a) a respondent to an appeal to the Court of Appeal;

(b) a respondent to an application for leave to appeal to the Court of Appeal, and

(c) where relevant, any party other than the moving party in any matter before the Court of Appeal other than by way of application for leave to appeal or appeal;

“statutory practice direction” means a practice direction issued under section 7C(2) of the Courts (Supplemental Provisions) Act 1961.

(2) This Order and Orders 86A, 86B, 86C, 86D and 87 apply to all proceedings and applications in proceedings in which the Court of Appeal has jurisdiction under law and applies, for the avoidance of doubt, so far as applicable, to all appeals to the Court of Appeal from any special tribunal or body and the procedure under this Order and Orders 86A, 86B, 86C, 86D and 87 applicable to appeals shall, save where the context otherwise requires, apply, subject to any modifications which may be necessary, to any other form of proceeding before the Court of Appeal.

(3) Save where otherwise provided, references in this Order and in Orders 86A, 86B, 86C, 86D and 87 to forms are to the forms in Appendix U, with the necessary modifications where appropriate to the case.

[SI 485/14]

Conduct of appeals and applications

2. (1) All appeals and other matters before the Court of Appeal shall be prepared for hearing or determination and heard and determined in a manner which is just, expeditious and likely to minimise the costs of the proceedings.

(2) The Registrar may from time to time make such inquiries and seek such reports or information of the parties as he considers appropriate or as are directed by the Court of Appeal concerning the progress of any appeal and may:

(a) where he considers that the requirements of sub-rule (1) are not being complied with, or

(b) where a time limit imposed by this Order has not been complied with,

list the matter before the Court of Appeal.

(3) Notwithstanding any other provision of this Order, the Court of Appeal may at any time direct the lodgment and service of written submissions on an appeal or on any issue or motion in any appeal.

[SI 485/14]

Directions and time limits

3. (1) The Court of Appeal may at any time and from time to time:

(i) of its own motion and having heard the parties, or

(ii) on the application of a party by motion on notice to the other party or parties,

give such directions and make such orders for the conduct of proceedings before the Court of Appeal, as appear convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

(2) Without prejudice to the generality of sub-rule (1), the Court of Appeal may give directions and make orders:

(a) fixing time limits;

(b) extending or shortening any time limit set by these Rules (unless to do so would be contrary to any provision of statute).

(3) An application for an extension of time may be made after the time limit has expired.

(4) Where a document is presented for lodgment late, the Registrar may accept the document for lodgment with the written consent of every other party concerned.

(5) Where a document (other than a notice of appeal) is presented for lodgment late, the Registrar may accept the document for lodgment without prejudice to the right of any party concerned to object to the late lodgment.

[SI 469/18; SI 485/14]

Service

4. (1) A document for use in proceedings in the Court of Appeal may be served by any of the following methods—

(a) personal service,

(b) registered post,

(c) electronic means where the person to be served has consented to service by such means or a statutory practice direction so permits and

(d) save in the case of a notice of appeal, any other method permitted by Order 121 (and where any such method is used, the provisions of Order 121 apply).

(2) Where, having made such inquiries, if any, as he considers appropriate, the Registrar is not satisfied as to the sufficiency of the service effected in any case, the Registrar may direct service by another method or may direct the giving of notice of the application or appeal by another means.

(3) An affidavit of service shall include details of the persons served, the method of service used and shall state the date on which the document was served personally, posted, delivered to the document exchange or sent electronically, as the case may be.

(4) Service on a party by a means which has been agreed by or among parties in the proceedings in the court below or which has been directed by the court below is, until the contrary is shown, deemed to be sufficient service.

[SI 485/14]

Notifications by the Court of Appeal

5. Unless otherwise provided in statute or this Order, where the Registrar is required to notify any person of a matter, the notification may be in such form and may be given in such manner as the Registrar considers appropriate.

[SI 485/14]

Lodgment of documents

6. Subject to the provisions of this Order, a document may be lodged in the Office by any of the following methods—

(a) any method permitted by Order 117A (and where any such method is used, the provisions of Order 117A apply);

(b) where permitted by a statutory practice direction, by electronic means in accordance with the relevant statutory practice direction.

[SI 485/14]

Application in first instance to court below

7. Subject to any provision of statute, whenever under these Rules an application may be made either to the Court of Appeal or to the court below, it shall be made in the first instance to the court below.

[SI 485/14]

Effect of interlocutory order in court below

8. No interlocutory order or ruling made by a court below from which there has been no appeal operates to bar or prejudice the Court of Appeal from giving such decision on the appeal as the Court of Appeal considers just.

[SI 485/14]

Security for costs

9. The Court of Appeal may under special circumstances direct that a deposit or other security in the amount fixed by the Court of Appeal be made or given for the costs to be occasioned by any appeal.

[SI 485/14]

Amendments

10. (1) A notice of appeal, or any other document used in an appeal to the Court of Appeal, may be amended at any time on such terms as the Court of Appeal thinks fit.

(2) An application for leave to amend shall be made by motion on notice to the other parties who would be affected by the amendment.

[SI 485/14]

Non-compliance

11. (1) Subject to sub-rules (4) and (5) of rule 3, the Registrar may refuse to issue any notice of appeal or other document which does not comply with the requirements of this Order or the requirements of any statutory practice direction which applies to the appeal or application in question.

(2) A party aggrieved by a refusal in accordance with sub-rule (1) to issue a notice of appeal or other document may apply within 14 days of the refusal by notice of motion to the Court of Appeal to authorise the issue of the notice of appeal or other document.

(3) Subject to rule 3(5) and sub-rules (1) and (2) of this rule, non-compliance on the part of an appellant or applicant with the rules of this Order or, as the case may be, of Orders 86A, 86B, 86C, 86D and/or 87, or with any rule of practice for the time being in force, does not prevent the further prosecution of the appeal or application unless the Court of Appeal so directs, but the appeal or application may be dealt with in such manner and on such terms as the Court of Appeal thinks fit.

[SI 485/14]

II. INTERLOCUTORY APPLICATIONS

Interlocutory applications to the Court of Appeal

12. (1) Unless otherwise permitted by the Court of Appeal, all interlocutory applications to the Court of Appeal shall be brought by motion on notice grounded on an affidavit sworn by or on behalf of the moving party.

(2) The notice of motion and affidavit shall be lodged in the Office and a copy of the notice of motion and affidavit (and any exhibits) served on every other party affected by the interlocutory application not later than four clear days before the return date of the application.

(3) The Court of Appeal may direct service of the application on any other party.

(4) Every party served with the application is at liberty to lodge in the Office and serve a copy of a replying affidavit.

(5) Unless otherwise directed, the moving party shall lodge in the Office not later than two clear days before the return date of the application an indexed and paginated motion booklet for the use of the Court of Appeal, comprising copies of:

(a) the notice of motion;

(b) each affidavit lodged in support of or in opposition to the motion, and all exhibits to each such affidavit, and

(c) any other document in the appeal to which any party proposes to refer on the hearing of the application.

[SI 485/14]

Ex parte applications to the Court of Appeal

13. Unless otherwise permitted by the Court of Appeal, notice of any intention to make an ex parte application to the Court of Appeal shall be given to the Court of Appeal by lodging a notice in the Form No 1 with the Registrar not later than 48 hours before the application is intended to be made, together with the original and three copies of any affidavit grounding that application and any exhibits.

[SI 485/14]

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