CA Proceedings I

The Court of Appeal Directions

All appeals and other matters before the Court of Appeal shall be prepared for hearing or determination and heard and determined in a manner that is just, expeditious, and likely to minimize the cost of the proceeding. The Registrar may from time to time make such inquiries and seek such reports or information from the parties as he considers appropriate or as are directed by the Court of Appeal concerning the progress of any appeal. If the above requirements are not complied with, or if a time limit imposed by a Court order is not met, he may list the matter before the Court of Appeal.

The Court of Appeal may at any time direct the lodgement and service of written submissions on an appeal or on any issue or motion in an appeal. The Court of Appeal may at any time and from time to time, of its own motion and having heard the parties or on the application of a party by motion on notice to the party or parties, give such directions and make such orders for the conduct of proceedings before the Court, as appear convenient for the determination of the proceedings in a manner that is just, expeditious, and likely to minimize the costs.

In particular, the Court of Appeal may give directions and make orders fixing time limits, extending or shortening any time limits set by the Rules unless this contradicts statute. An application for an extension of time may be made after the time limit has expired.

Service

A document for use in proceedings in the Court of Appeal may be served by personal service, registered post, electronic means where the person has consented to service by such means or a statutory practice direction so permits, and, save in the case of a notice of appeal, any other method permitted by Order 121.

Where, having made such inquiries as he considers appropriate, the Registrar is not satisfied as to the sufficiency of service effected in any case, he may direct service by another method or means. Affidavits of service are to include details of the person served, method of service, 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.

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 given for costs occasioned by any appeal.

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

An application for leave to amend is by motion on notice to the parties who would be affected by the amendment.

The Registrar may refuse any notice of appeal or other document that does not comply with the requirements of these Rules or any statutory practice direction. A person 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 authorize the issue of the notice of appeal or other document.

Interlocutory Applications

Unless otherwise permitted, all interlocutory applications shall be by motion on notice, grounded on an affidavit sworn by or on behalf of the moving party.

An affidavit shall be lodged in the Office, and a copy of the notice of motion and affidavit shall be served on every party affected by the interlocutory application not later than four clear days before the return date.

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 use of the Court of Appeal. It shall comprise copies of the notice of motion, each affidavit lodged in support of or in opposition to the motion, all exhibits to each such affidavit, and any other document in the appeal which any party proposes to refer to at the hearing of the application.

Unless otherwise permitted by the Court of Appeal, notice of any intention to make a unilateral application to the Court shall be given to the Court by lodging a notice in the prescribed form with the Registrar not later than 48 hours before the application is to be made. It is to be accompanied by the original and three copies of any grounding affidavit and exhibits.

Civil Appeals

Subject to the Constitution and provisions 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, affidavit, or deposition taken.
• Further evidence may be given without special leave on any appeal from an interlocutory judgment or order 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 to the above) may be admitted on special grounds only and only with the special leave of the Court (obtained by application on notice setting out these grounds).

An appeal to the Court of Appeal does not operate as a stay of proceedings appealed from, except in so far as the High Court orders. If the High Court refuses such an order, the Court of Appeal may direct that the proceeding be stayed. No intermediate act or proceeding is invalidated by reason of an appeal or application for leave to appeal, except in so far as the High Court, Circuit Court, or Court of Appeal directs it is invalidated.

Powers of Court

Powers of the Court of Appeal may be exercised, notwithstanding that the notice of appeal asks for only part of the decision of the Court below to be reversed or varied. Those powers may also be exercised in favour of any of the respondents or parties, although particular respondents or parties may not have appealed from or complained about the decision.

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. This may be confined to a particular question or issue, without interfering with the original finding or decision on any other question or issue.

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 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.

Applications for Leave to Appeal

Where by statute, leave to appeal to the Circuit Court is required to be sought, the application is brought in a statutory form. This is to 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. These are to be appended to a draft of the proposed notice of appeal. A return date before the Court shall be assigned to every application for leave issued.

Subject to the relevant legislation in particular matters, leave to appeal to the Court of Appeal may be sought in the court below or in the Court of Appeal. An application to the Court of Appeal for leave may only be made after the court below has refused to grant leave to appeal.

Subject to any legislation to the contrary, an 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 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. The party moving shall lodge an affidavit of service 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. The Court of Appeal may direct notice of the application for leave to be served on all parties to the proceedings in the court below, or on any other person.

A person served with leave to appeal who intends to oppose the application shall lodge in the Office and serve on the moving party and each party served with the application for leave, a statement of that person’s grounds of objection to the application in the prescribed form, not later than seven days before the return date.

Directions

On the return date, the Court of Appeal may give such directions and make such orders, including the fixing of time limits, for the conduct of the applications as appears convenient for the determination of the applicant in a manner consistent with the above objective. This may include directions as to the service of the application for leave to appeal on other persons, including mode of service;

• Directions as to filing and delivery of affidavits;
• Directions as to filing and delivery of written submissions.

An order granting leave to appeal shall specify the grounds on which leave is given, fix the time limit in which the notice of appeal is to be issued and served, and fix a date for the directions hearing on the appeal.