Application in first instance to court below
Subject to any provision of statute, whenever under the 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.
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.
Security for costs
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.
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. An application for leave to amend shall be made by motion on notice to the other parties who would be affected by the amendment.
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.
A party aggrieved by a refusal 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.
Non-compliance on the part of an appellant or applicant with the rules 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.
Interlocutory applications to the Court of Appeal
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.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. The Court of Appeal may direct service of the application on any other party.
Every party served with the application is at liberty to lodge in the Office and serve a copy of a replying affidavit.
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:
- the notice of motion;
- each affidavit lodged in support of or in opposition to the motion, and all exhibits to each such affidavit, and
- any other document in the appeal to which any party proposes to refer on the hearing of the application.
Ex parte applications to the Court of Appeal
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.
Notice of appeal
An appeal to the Court of Appeal (other than an appeal to which Part IV applies) shall be brought by the lodgment in the Office for issue of a notice (in this Order called the “notice of appeal”) in the Form No. 6, which shall set out:
- particulars of the decision that it is sought to appeal;
- the grounds of the appeal;
- the orders sought from the Court of Appeal;
- a list of the documents intended to be relied on by the appellant in the appeal, and
- particulars of the appellant and of the respondent.
Part IV shall not apply to any appeal to which this Part applies.
Lodgment of notice of appeal
Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, , the notice of appeal shall be lodged for issue and an attested copy of the order of the court below shall be lodged not later than 28 days from the perfecting of the order appealed against.
Where a written judgment has been given in the court below, the appellant shall lodge with the Registrar an attested copy of the written judgment approved by the court below when the notice of appeal is lodged or otherwise promptly after it becomes available.
Where a written judgment has not been given in the court below, the appellant shall, at his own expense, lodge with the Registrar:
- a transcript of the oral judgment of the court below certified as accurate by the person responsible for preparing the transcript and authenticated by the Judge of the court below, and
- where, and then to the extent, necessary for the proper determination of the appeal, a transcript of any relevant ruling or direction of the Judge in the court below certified as accurate by the transcript writer and authenticated by the Judge of the court below.
The notice of appeal shall include a list of all of the documents on which the appellant intends to rely at the hearing of the appeal.
A return date for a directions hearing shall be assigned to every notice of appeal issued under this rule.
Service of notice of appeal
A copy of the notice of appeal shall, save in the case of a notice of appeal from a decision made otherwise than inter partes, be served, within seven days after the notice of appeal has been issued, on all parties directly affected by the appeal.
It is not necessary to serve parties to the proceedings in the court below who are not directly affected by the appeal, but the Court of Appeal may direct notice of the appeal to be served on all or any of the parties to the proceedings in the court below, or on any other person. The appellant shall lodge an affidavit of service of the notice of appeal on each respondent served.
Each respondent served with a notice of appeal shall, within 21 days after service on him of the notice of appeal, lodge in the Office and serve on the appellant and every other respondent a notice in the Form No. 7 which:
- shall state if that respondent opposes the appeal, in whole or in part and, if so, sets out concisely the grounds on which the appeal is opposed;
- if that respondent intends, on the hearing of the appeal, to contend that the judgment or order appealed from should be affirmed on grounds other than those set out in the judgment or order of the court below, sets out a concise statement of the additional grounds on which it is alleged the judgment or order appealed from should be affirmed;
- if that respondent intends, on the hearing of the appeal, to contend that the judgment or order appealed from should be varied, shall include a separate section entitled “notice of cross-appeal”, which sets out a concise statement of the grounds on which it is alleged the judgment or order appealed from should be varied;
- shall set out the orders sought from the Court of Appeal, and
- shall include a list of any additional documents not identified in the notice of appeal on which that respondent intends to rely at the hearing of the appeal.
A notice for the purposes of section 32 (3) of the Civil Liability Act 1961 shall be in the Form No. 30 in Appendix C, and shall be lodged in the Office and a copy served on the appellant and every other respondent within 14 days of the service of the notice of appeal.