CA Powers

Table of Contents

Application of these rules

This Order applies only to appeals to the Court of Appeal in civil proceedings.

Subject to the provisions of the Constitution and of statute-

the Court of Appeal has on any appeal in civil proceedings and may exercise or perform all the powers and duties of the court below,
the Court of Appeal may give any judgment and make any order which ought to have been given or made and may make any further or other order as the case requires.

The powers of the Court of Appeal may be exercised by the Court of Appeal, notwithstanding that the notice of appeal asks that part only of the decision of the court below be reversed or varied, and those powers may also be exercised in favour of all or any of the respondents or parties, although particular respondents or parties may not have appealed from or complained of the decision.

The failure to give adequate notice of a matter in a notice of appeal does not remove or reduce the power of the Court of Appeal to consider and deal with the matter in question, but the Court of Appeal may, in its discretion, adjourn an appeal or (where it is satisfied that the other party is not prejudiced in its conduct of the appeal by the insufficient notice) make a special order as to costs where it considers that inadequate notice of a matter has been given.

Power to remit or direct new trial

Following the hearing of an appeal, the Court of Appeal may remit proceedings to the High Court with such directions as it considers just.

If on the hearing of an appeal, it appears to the Court of Appeal that a new trial ought to be had, it may set aside the original decision or order and direct a new trial, which may be confined to a particular question or issue, without interfering with the original finding or decision on any other question or issue.

Powers as to evidence

Subject to the provisions of the Constitution and of statute-

the Court of Appeal has on appeal full discretionary power to receive further evidence on questions of fact, and may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner,
further evidence may be given without special leave on any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought,
on any appeal from a final judgment or order, further evidence (save as to matters subsequent as mentioned in paragraph (b)) may be admitted on special grounds only, and only with the special leave of the Court of Appeal (obtained by application by motion on notice setting out the special grounds),
the Court of Appeal may draw inferences of fact in accordance with law,
if the Court of Appeal considers that the record available to it of the proceedings in the court below is deficient, it may have regard to such evidence, or to such verified notes or other materials as the Court of Appeal deems expedient,
where the Court of Appeal considers it necessary, it may direct the Registrar to apply to the trial Judge for a report to the Court of Appeal on the trial or any part of the trial.

Appeal not to operate as a stay

An appeal (or, where required by law, an application for leave to appeal) to the Court of Appeal does not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the High Court orders or, such order having been refused by the High Court, so far as the Court of Appeal orders.

No intermediate act or proceeding is invalidated by reason of an appeal (or application for leave to appeal) to the Court of Appeal, except so far as is directed by the High Court or, such direction having been refused by the High Court, so far as the Court of Appeal directs.

Conduct of applications for leave to appeal

Where under statute leave to appeal to the Court of Appeal is required to be sought, application for such leave shall be brought by notice of application (in this rule called the “application for leave to appeal”) in the Form No. 2, which shall include the grounds on which leave to appeal is sought and, where relevant, the reasons why it is alleged that the conditions for leave to appeal are satisfied, and to which shall be appended a draft of the proposed notice of appeal. A return date before the Court of Appeal shall be assigned to every application for leave to appeal issued under this rule.

Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, where under any enactment leave to appeal to the Court of Appeal may be sought in the court below or in the Court of Appeal, any application seeking leave to appeal may be made to the Court of Appeal only after the court below has refused to grant leave to appeal. Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, and to the provisions of this Order, the application for leave to appeal 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 of the court below against which leave to appeal is sought.

A copy of the application for leave to appeal (and appended draft notice of appeal) shall be served not later than 14 days before the return date of the application for leave to appeal, on all parties directly affected by the application. The moving party shall lodge an affidavit of service of the application for leave to appeal on each respondent served.

It is not necessary to serve parties to the proceedings in the court below who are not directly affected by the application for leave to appeal, but the Court of Appeal may direct notice of the application for leave to appeal to be served on all or any of the parties to the proceedings in the court below, or on any other person.

A person served with an application for leave to appeal who intends to oppose the application shall lodge in the Office and serve on the moving party and each other person served with the application for leave to appeal a statement of that person’s grounds of objection to the application for leave to appeal in the Form No. 3, not later than seven days before the return date of the application for leave to appeal.

Leave

On the return date of the application for leave to appeal, (or on any adjournment of such hearing), the Court of Appeal may give such directions and make such orders, including the fixing of time limits, for the conduct of the application as appear convenient for the determination of the application in a manner which is consistent with the requirements of Order 86, rule 2, which may include:

directions as to the service of the application for leave to appeal on any other person including mode of service and the time allowed for such service (and may for that purpose adjourn the hearing (or further hearing) or determination of the motion to a date specified);
directions as to the filing and delivery of any affidavit by any party or parties;
directions as to the filing and delivery of written submissions.

An order granting leave to appeal:

shall specify the grounds on which leave is given;
shall fix a time within which the notice of appeal is to be issued and served, and
shall fix a date for the directions hearing on the appeal.

When the Court of Appeal has determined an application for leave to appeal, the Registrar shall notify the parties of the determination.

Expedited Appeals

This Part applies to an appeal (in this Part called an “expedited appeal”) falling within the following categories of appeals to the Court of Appeal in civil proceedings:

an appeal against the grant or refusal of relief under Article 40.4.2° of the Constitution;
an appeal against the making or refusal of any interlocutory order;
an appeal against the making or refusal of any order granting summary judgment;

It also applies to an appeal against the making or refusal of:

a winding up order;
an order appointing a provisional liquidator;
an order appointing a receiver;
an order in the course of examinership proceedings;

It also applies to an appeal against the making or refusal of:

an adjudication in bankruptcy;
(Debt Settlement Arrangements) or (Personal Insolvency Arrangements) of the Personal Insolvency Act 2012 ;

It also applies to

an appeal against the making or refusal of any order in any proceedings to which Order 133 (Child Abduction and Enforcement of Custody Orders) applies;
an appeal against the making or refusal of any order making a determination as to the capacity of a person (including an order making or refusing to make a person a ward of court);
an appeal against the making or refusal of an order in proceedings under the European Arrest Warrant Acts 2003 and 2012 or in extradition proceedings;
an appeal from the making or refusal of an order of prohibition in criminal proceedings;
an appeal against the refusal of an ex parte order;
any other appeal designated in a statutory practice direction as an appeal to which this Part applies.

Notice of expedited appeal

An appeal to the Court of Appeal to which this Part applies shall be brought by the lodgment in the Office for issue of a notice (in this Part called the “notice of expedited appeal”) in the Form No. 4, which shall set out:

particulars of the decision that it is sought to appeal;
the category of expedited appeal to which the appeal relates;
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.

Lodgment of notice of expedited appeal

Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, and to the provisions of this Order, the notice of expedited appeal shall be lodged for issue with an attested copy of the order of the court below not later than ten 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 expedited 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.

A return date for a directions hearing shall be assigned to every notice of expedited appeal issued under this rule.

Service of notice of expedited appeal

A copy of the notice of expedited appeal shall, save in the case of a notice of appeal from a decision made otherwise than inter partes, be served, within four days after it 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 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 expedited appeal on each respondent served.

Respondent’s notice

Each respondent served with a notice of expedited appeal shall, within seven days after service on him of the notice of expedited appeal, lodge in the Office and serve on the appellant and every other respondent a notice in the Form No. 5 (in this rule, the “respondent’s notice”), 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.