CA Proceedings II
Rules of the Superior Courts
Court of Appeal: 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.
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.
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) [7] 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[1] Orders 86, “Court of Criminal Appeal”, 86A, “The Courts-Martial Appeal Court” and 87, “Appeals to the Supreme Court from the Central Criminal Court” substituted as Orders 86, 86A, 86B, 86C, 86D and 87 by SI 485 of 2014, effective 28 October 2014, subject to paragraph 2 of SI 485 of 2014.
[2] Superseded amendments, O86 rules 1 to 5:
Order 86 rule 1 amended by SI 325 of 2008, effective 10 September 2008. SI 325 of 2008 deleted the definition of “official stenographer” and inserted the definitions of “record” and “transcript writer”.
Order 86 rule 1 amended by SI 582 of 2009, effective 11 January 2010. SI 582 of 2009 substituted the definition of “the Registrar”.
Order 86 rule 1 amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 substituted the definition of “appellant” and inserted the sentence following that definition. Paragraph 2 of SI 114 of 2012 provides: “Nothing in these Rules shall affect the validity of any step taken or any other thing done in any proceedings on any application for leave to appeal to the Court of Criminal Appeal initiated before the coming into force of section 31(b) or, as the case may be, section 32 of the Criminal Procedure Act 2010, and any such proceedings shall, save where the court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”
Order 86 rule 3 deleted by SI 114 of 2012, effective 28 April 2012, subject to the provisions of paragraph 2 of SI 114 of 2012.
Title of Part III of Order 86 changed by SI 114 of 2012, effective 28 April 2012, from “Notice of appeal” to “Notices of appeal and notices of application”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 4 substituted by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 5 substituted by SI 265 of 1993, effective 9 September 1993.
Order 86 rule 5 amended by SI 10 of 2009, effective 9 February 2009.
Order 86 rule 5 substituted by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012.
[3] Superseded amendments, O86 rules 6 to 12:
Order 86 rule 6 substituted by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 7 substituted by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 8(1) substituted by SI 10 of 2009, effective 9 February 2009.
Order 86 rule 8(2) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of application for leave to appeal” following “notice to appeal”. Note the provisions of paragraph 2 of SI 114 of 2012
Order 86 rule 8(3) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 9(3) substituted by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 11(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of application for leave to appeal” following “where notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 11(2) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or of an application for leave to appeal,” following “event of an appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 11(4) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or of an application for leave to appeal,” following “event of an appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 11(5) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or of an application for leave to appeal,” following “event of an appeal”.
Order 86 rule 12 amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of application for leave to appeal” following “notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
[4] Superseded amendments, O86 rules 13 to 15:
Order 86 rule 13(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or of application for leave to appeal” following “notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 13(2) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Title of Part VII of Order 86 changed from “Official stenographer and transcript of notes” to “Provision of Record and Transcript to Registrar”; by SI 325 of 2008, effective 10 September 2008.
Order 86 rule 14 substituted by SI 325 of 2008, effective 10 September 2008.
Order 86 rule 14(4) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “interested in an appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 14(5) inserted by SI 278 of 2014, effective 7 July 2014.
Order 86 rule 15 amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or a notice of application for leave to appeal” following “notice of an appeal” and “or application for leave to appeal” following “determination of the appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
[5] Superseded amendments, O86 rules 16 to 23:
Order 86 rule 16(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “determination of the appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 16(2) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “stage of an appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 17(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of application for leave” following “notice of appeal “and “or application” following “such appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 17(2) substituted by SI 325 of 2008, effective 10 September 2008.
Order 86 rule 18(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “any appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 20(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of application for leave to appeal” following “notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 23(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or of application for leave to appeal” following “notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 23(2) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “any appeal” and “such appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
[6] Superseded amendments, O86 rules 24 to 39:
Order 86 rule 25(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or application for leave to appeal” following “hearing of his appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 26 substituted by SI 325 of 2008, effective 10 September 2008.
Order 86 rule 26 substituted as rules 26 and 26A by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012:
Order 86 rule 28(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “refusing an application for leave to appeal, or” following “makes an order”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 31(1) amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “or notice of an application for leave to appeal, or” following “notice of appeal”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 31(7) inserted by SI 10 of 2009, effective 9 February 2009.
Order 86 rules 31(5) and 31(6) substituted as Order 86 rules 31(5), 31(6), 31(7), 31(8) and 31A by SI 114 of 2012, effective 28 April 2012. Note the provisions of paragraph 2 of SI 114 of 2012. There is an error in SI 114 of 2012. It inserts a rule 31(7) but does not remove the existing rule 31(7). The rule 31A inserted by SI 114 of 2012 is the same as the “substituted” Order 86 rule 31(7).
Order 86 rule 34 amended by SI 114 of 2012, effective 28 April 2012. SI 114 of 2012 deleted the words “for leave to appeal, or” following “appeals and applications”. Note the provisions of paragraph 2 of SI 114 of 2012.
Order 86 rule 39 inserted by SI 10 of 2009, effective 9 February 2009.
[7] Order 86 rule 3(5) substituted by SI 469 of 2018, effective 10 December 2018.
Appeals to the Court of Appeal in Civil Proceedings
I. Powers of Court of Appeal on civil appeals
Application of this Order
1. This Order applies only to appeals to the Court of Appeal in civil proceedings.
General
2. (1) Subject to the provisions of the Constitution and of statute:
(a) 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,
(b) 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.
(2) 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.
(3) 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
3. (1) Following the hearing of an appeal, the Court of Appeal may remit proceedings to the High Court with such directions as it considers just.
(2) 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
4. Subject to the provisions of the Constitution and of statute:
(a) 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,
(b) 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,
(c) 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),
(d) the Court of Appeal may draw inferences of fact in accordance with law,
(e) 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,
(f) 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.
II. Application for leave to appeal or appeal does not operate as a stay unless ordered
Appeal not to operate as a stay
5. (1) 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.
(2) 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.
III. Applications for leave to appeal
Conduct of applications for leave to appeal
6. (1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) The moving party shall lodge an affidavit of service of the application for leave to appeal on each respondent served.
(6) 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.
(7) 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.
(8) 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:
(a) 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);
(b) directions as to the filing and delivery of any affidavit by any party or parties;
(c) directions as to the filing and delivery of written submissions.
(9) An order granting leave to appeal:
(a) shall specify the grounds on which leave is given;
(b) shall fix a time within which the notice of appeal is to be issued and served, and
(c) shall fix a date for the directions hearing on the appeal.
(10) When the Court of Appeal has determined an application for leave to appeal, the Registrar shall notify the parties of the determination.
IV[3]. [….]
Notice of appeal
12. [4] An appeal to the Court of Appeal 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:
(i) particulars of the decision that it is sought to appeal;
(ii) the grounds of the appeal;
(iii) the orders sought from the Court of Appeal;
(iv) a list of the documents intended to be relied on by the appellant in the appeal, and
(v) particulars of the appellant and of the respondent.
Lodgment of notice of appeal
13. (1) 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 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.
(2) 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.
(3) Where a written judgment has not been given in the court below, the appellant shall, at his own expense, lodge with the Registrar:
(i) 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
(ii) 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.
(4) 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.
(5) A return date for a directions hearing shall be assigned to every notice of appeal issued under this rule.
Service of notice of appeal
14. (1) 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.
(2) 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.
(3) The appellant shall lodge an affidavit of service of the notice of appeal on each respondent served.
Respondent’s notice
15. (1) 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 (in this rule, the “respondent’s notice”), which:
(a) 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;
(b) 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;
(c) 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;
(d) shall set out the orders sought from the Court of Appeal, and
(e) 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.
(2) 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.
VI. Directions hearing applicable to all civil appeals
Directions hearing
16. (1) Unless otherwise directed, the appellant shall lodge in the Office not later than four days before the date fixed for the directions hearing an indexed and paginated directions booklet for the use of the Court of Appeal, comprising copies of:
(a) the judgment and/or order appealed from;
(b) [5] the notice of appeal;
(c) every respondent’s notice delivered, and
(d) any other document in the appeal to which any party proposes to refer at the directions hearing.
(2) The directions hearing shall be attended by the solicitor responsible for the conduct of the appeal and by a counsel instructed in the appeal, if such be the case. Where a party, not being a body corporate, is not represented by counsel or a solicitor, the directions hearing shall be attended by the party himself. Where the Court of Appeal considers it necessary or desirable, it may direct that a party, or, where the party is a body corporate, the proper officer of that party, attend the directions hearing, notwithstanding the fact that the party may be represented by counsel or a solicitor.
(3) Each counsel and solicitor attending the directions hearing shall ensure that he is sufficiently familiar with the proceedings, and has authority from the party he represents to deal with any matters that are likely to be dealt with at the directions hearing.
(4) Without prejudice to the generality of Order 86, rule 3, the Court of Appeal may, at the directions hearing, give any of the following directions:
(i) fixing any issues to be determined in the appeal;
(ii) for the consolidation of the appeal with another appeal or matter pending in the Court of Appeal;
(iii) for the defining of issues by the parties, or any of them, including the exchange between the parties of memoranda for the purpose of clarifying issues;
(iv) allowing any party to alter or amend his notice, or allowing amendment of a statement of issues;
(v) requiring the filing of lists of documents, either generally or with respect to specific matters;
(vi) providing for the exchange of documents or information between the parties, or for the transmission by the parties to the Registrar of documents or information electronically on such terms and subject to such conditions and exceptions as the Court of Appeal may direct;
(vii) providing for the documents to be included in the appeal booklet to be filed in accordance with rule 17;
(viii) fixing the times at which written submissions on the appeal, or on an issue in the appeal, identifying and addressing the issues arising in the appeal, are to be delivered and filed by each party to the appeal, and such written submissions shall be filed electronically where directed by the Registrar.
(5) Where the directions hearing is adjourned, the appellant shall, where necessary, lodge in the Office not later than four days before the date to which the directions hearing is adjourned an updated directions booklet for the use of the Court of Appeal.
(6) At the directions hearing:
(a) in the case of an ordinary appeal, the Court of Appeal may, or
(b) in the case of an expedited appeal, the Court of Appeal shall, unless for special reason it considers that it is not possible to do so, fix a date and allocate a time for the hearing of the appeal.
Appeal booklet and papers
17. (1) Subject to any statutory practice direction and the terms of any order made at the directions hearing, the appellant shall, not later than 14 days before the date fixed for the hearing of the appeal, lodge with the Registrar in triplicate and serve on each respondent affected by the appeal an indexed and paginated appeal book (in this Part called the “appeal booklet”) comprising:
(a) [6] a copy of the notice of appeal;
(b) a copy of the respondent’s notice;
(c) where the appeal is in proceedings commenced by plenary summons, copies of the summons, any statement of claim, and defence and any requests for and replies to particulars, in chronological sequence;
(d) where the appeal is in any other proceedings, copies of the originating document and any document in the nature of a defence or statement of opposition;
(e) copies of each affidavit (including all exhibits) relied on or opened in the court below at the hearing at or following which the decision appealed from was made, set out in chronological sequence;
(f) an attested copy of the order of the court below from which the appeal is made and attested copies of any further or other order of the court below relevant to the appeal;
(g) where a written judgment was given in the court below containing the decision appealed from, an attested copy of the written judgment approved by the court below;
(h) where a written judgment has not been given in the court below, a transcript of any oral judgment of the court below concerning the matter appealed from, certified as accurate by the person responsible for preparing the transcript and authenticated by the Judge of the court below;
(i) where, and then only to the extent, necessary for the proper determination of the appeal, a transcript of
(i) any ruling or direction of the Judge in the court below concerning the matter appealed from and
(ii) the extracts from the record of the proceedings in the court below containing any oral evidence received in the court below relevant to the appeal, certified as accurate by the transcript writer;
(j) the written submissions, identifying and addressing the issues arising in the appeal, of each party, and
(k) copies of the documents relied on by each party as specified in the notice of appeal and the respondent’s notice respectively, provided that where an extract only of any document, including any transcript is relied on, it shall be sufficient to include only such extract.
(2) The appellant shall lodge with the appeal booklet a single copy of the entire transcript of the evidence given in the court below. The transcript shall be lodged electronically where directed by the Registrar.
(3) The appellant shall hand into court at the hearing of the appeal three copies of an agreed indexed book of the authorities relied on by all of the parties.
Further directions hearing
18. [7] The Registrar may at any time list an appeal before the Court of Appeal on notice to the parties for the giving of such directions or the making of such orders for the conduct of the proceedings as the Court of Appeal considers appropriate in the circumstances.
Particular provisions concerning electoral appeals
19. (1) The provisions of this rule apply to appeals to the Court of Appeal on questions of law
(a) from the Circuit Court under the Local Elections (Petitions and Disqualifications) Act 1974, and
(b) from the High Court under the Seanad Electoral (University Members) Act 1937 as amended, the Seanad Electoral (Panel Members) Act 1947 as amended, the Electoral Act 1992, the Presidential Elections Act 1993, and the European Parliament Elections Act 1997.
(2) Every appeal under sub-rule (1)(a) shall be by notice of appeal in the form, if any, for the time being prescribed in the Circuit Court Rules and otherwise in accordance with Part V.
(3) Every appeal under sub-rule (1)(b) shall be by notice of appeal in accordance with Part V.
(4) A return date for a directions hearing shall be assigned to every notice of appeal issued under this rule.
(5) Every notice of appeal referred to in this rule shall be served within 28 days from the date on which the judgment or order appealed from was pronounced in open court and shall be lodged with the Registrar forthwith.
(6) In the case of an appeal under sub-rule (1)(a), the Registrar shall apply to the County Registrar for such documents as are lodged in the Circuit Court for the purposes of the appeal.
(7) The transcript writer shall furnish a transcript of the whole of the proceedings at the trial or of such part of the proceedings as the Registrar requires. The transcript shall be certified by the transcript writer to be a complete and correct transcript of the whole of the record, or of the part required. In the absence of a transcript, the County Registrar shall furnish to the Registrar a signed copy of the note made by the Judge of the Circuit Court of any question of law raised before him and of the facts in evidence in relation to that question, and of his decision on that question and on the question or matter submitted to him. Such documents, transcript or note shall be supplied for the use of the Court of Appeal and may be used and received at the hearing of the appeal.
(8) The Registrar shall also apply to the County Registrar for the transmission to his office for the use of the Court of Appeal of a file of all documents and papers relating to the case.
(9) If a report, or a note as is mentioned in sub-rule (7), cannot be produced, the Court of Appeal may hear and determine the appeal on any other evidence or statement of what occurred before the Judge of the Circuit Court which the Court of Appeal deems sufficient.
(10) In the case of an appeal under sub-rule (1)(b), the appellant shall lodge with the Registrar an attested copy of the judgment or order of the High Court appealed from and the appeal books referred to in rule 17. If no transcript of the proceedings before the High Court is lodged, the appropriate Registrar of the High Court shall furnish to the Registrar a signed copy of the note made by the High Court Judge of any question of law raised before him and of the facts and evidence relating to that question and of his decision on that question and on the question or matters submitted to him. Such copies shall be supplied for the use of the Court of Appeal and may be used and received at the hearing of the appeal.
(11) The Registrar shall also apply to the appropriate High Court Registrar for the transmission to him for the use of the Court of Appeal of a file of all documents and papers relating to the case.
(12) If a note as is mentioned in sub-rule (10) cannot be produced, the Court of Appeal may hear and determine the appeal on any other evidence or statement of what occurred before the High Court Judge which the Court of Appeal deems sufficient.
(13) The Registrar shall give notice of the order made by the Court of Appeal finally determining any appeal in the Form No 8, to each of the persons specified in section 14(3) of the Act of 1974 in the case of an appeal under sub-rule (1)(a), or to each of the persons entitled under Order 97, rule 21(1) to receive a copy of the final order of the High Court in the case of an appeal under sub-rule (1)(b).
(14) This rule applies, so far as practicable, and with such modifications as may be necessary, to all appeals under the Electoral Acts.
VIII. Settlement, withdrawal or concession of appeals
Determination of appeals by settlement, abandonment, etc
20. (1) When an appeal has been settled or compromised, every party who has joined in the settlement or compromise shall notify the Registrar in writing.
(2) Where a party notifies the Registrar in writing that no issue as to the costs of the appeal remains outstanding and no requirement arises for an order to be made by the Court of Appeal, and produces to the Registrar a letter from each other party concerned confirming this, the appeal shall be deemed to be determined without further order.
(3) Where a party notifies each other party concerned and the Registrar in writing of his intention to withdraw or concede the appeal:
(a) the proceedings may, on the application of a party or at the direction of the Registrar, be listed before the Court of Appeal, on notice to the other parties, to enable the making of any necessary consequential order, and
(b) the Registrar may notify the proper officer of the court below and any other person he considers necessary of the determination of the appeal.
Additional interest allowed without special order
21.[8] On an appeal to the Court of Appeal, interest for such time as execution has been delayed by the appeal is deemed to be allowed, unless the Court of Appeal otherwise orders. The Legal Costs Adjudicator or other proper officer may compute the additional amount of interest without any order for that purpose.
[1] Orders 86, “Court of Criminal Appeal”, 86A, “The Courts-Martial Appeal Court” and 87, “Appeals to the Supreme Court from the Central Criminal Court” substituted as Orders 86, 86A, 86B, 86C, 86D and 87 by SI 485 of 2014, effective 28 October 2014, subject to paragraph 2 of SI 485 of 2014.
[2] Superseded amendments:
The Courts-Martial Appeal Court Rules were created by SI 206 of 1983, effective 18 July 1983. The 1983 Rules were inserted into the RSC as Order 86A by SI 105 of 2000, effective 28 April 2000. SI 105 of 2000 also substituted rule 4(1) and amended rule 8 of the 1983 Rules. Paragraph 1 of SI 105 of 2000 mistakenly refers to “S.I. 206 of 1993”. SI 646 of 2003, effective 13 November 2003, corrected the reference to read “S.I. No 206 of 1983”.
Order 86A substituted by SI 270 of 2009, effective 20 July 2009. Paragraph 2 of SI 270 of 2009 provides: “Subject to section 3 and Schedule 1 of the Defence (Amendment) Act 2007, nothing in these Rules shall affect the validity of any step taken or any other thing done in proceedings under the Courts-Martial Appeals Act 1983 initiated before the commencement of these Rules. Any such proceedings shall, subject to the section and Schedule aforesaid and, save where the Courts-Martial Appeal Court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.”
Order 86A rule 1 amended by SI 582 of 2009, effective 11 January 2010. SI 582 of 2009 substituted the definition of “the Registrar”.
Order 86A rule 1 amended by SI 693 of 2011, effective 1 January 2012. SI 693 of 2011 substituted the definition of “military judge”.
[3] Order 86A Part IV (comprising rules 7-11 inclusive) deleted by SI 469 of 2018 effective 10 December 2018.
Superseded amendment: Order 86A rule 8 substituted by SI 156 of 2017, effective 15 May 2017.
[4] Order 86A rule 12 substituted by SI 469 of 2018 effective 10 December 2018.
Superseded amendment: Order 86A rule 12(3) inserted by SI 156 of 2017, effective 15 May 2017.
[5] Order 86A rule 16(1)(b) substituted by SI 469 of 2018 effective 10 December 2018.
[6] Order 86A rule 17(1)(a) substituted by SI 469 of 2018 effective 10 December 2018.
[7] Order 86A rule 18 substituted by SI 469 of 2018 effective 10 December 2018.
[8] Order 86A rule 21 substituted by SI 584 of 2019, effective 3 December 2019.
Practice Directions
Expedited appeals and non-compliant notices of appeal
Civil Appeals
1. Extended time for Notice of Appeal in expedited appeals from Orders perfected before 31st October 2014
2. Non-compliance with prescribed form of Notice of Appeal during Transitional Period
(Issued under Section 7C(2) of the Courts (Supplemental Provisions) Act 1961 inserted by Section 10 of the Court of Appeal Act 2014)
Extension of time for lodgment of expedited appeal
Notwithstanding the requirement in O.86A r.9(1) that notice of appeal in an expedited appeal be lodged for issue within 10 days of perfection of the Order appealed from, that period is hereby extended to 21 days in respect of an appeal against any Order perfected on or before 31st October 2014.
Non-compliant notice of appeal during Transitional Period
All notices of appeal (expedited and ordinary) should comply with the requirements of O. 86A r. 8 or O. 86A r. 12 and Form No. 4 or Form No. 6. However, where prior to 20th November 2014, a notice of appeal is lodged which does not comply with such requirements, the Office will accept and issue such notice of appeal for service, designating it as expedited or ordinary and give a return date for the directions hearing on condition that
- the appellant lodges in the Office and serves on all parties, within seven days from the date of issue of the original notice of appeal, an amended notice of expedited appeal or notice of ordinary appeal which is in accordance with Form No. 4 or Form No. 6 as appropriate; and
- where the appeal is an expedited appeal the seven day period for lodgment and service of the respondent’s notice (O.86A r.11) shall only commence on the service of the amended notice of expedited appeal.
Sean Ryan
President
30th October 2014
Schedule
Expedited Appeals
O.86A r.7(1)
(i) an appeal against the grant or refusal of relief under Article 40.4.2 of the Constitution;
(ii) an appeal against the making or refusal of any interlocutory order;
(iii) an appeal against the making or refusal of any order granting summary judgment;
(iv) an appeal against the making or refusal of:
(a) a winding up order;
(b) an order appointing a provisional liquidator;
(c) an order appointing a receiver;
(d) an order in the course of examinership proceedings;
(v) an appeal against the making or refusal of:
(a) an adjudication in bankruptcy;
(b) an order under Chapter 3 (Debt Settlement Arrangements) or Chapter 4 (Personal Insolvency Arrangements) of Part 3 of the Personal Insolvency Act 2012;
(vi) 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;
(vii) an appeal against the making or refusal of any order making a determination as to the capacityof a person (including an order making or refusing to make a persona ward of court);
(viii) 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;
(ix) an appeal from the making or refusal of an order of prohibition in criminal proceedings;
(x) an appeal against the refusal of an ex parte order;
(xi) any other appeal designated in a statutory practice direction as an appeal to which this Part applies.
Submissions, books of appeal and authorities in civil appeals
From 3 October 2022
Issued pursuant to the provisions of Section 7C (2) of the Courts (Supplemental Provisions) Act 1961 (inserted by Section 10 of the Court of Appeal Act 2014).
PRELIMINARY
1. Order 86, Rule 2(1) of the Rules of the Superior Courts requires that all appeals 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 parties to appeals before the Court and their legal advisors are under an obligation to ensure that all steps in proceedings before the Court are taken expeditiously and in accordance with and within the time prescribed by the Rules of the Superior Court and this Practice Direction.
SUBMISSIONS
3. Written submissions in appeals other than those set out in paragraph 4 below, shall not, save with the prior leave of the Court, exceed 10,000 words in total. Save in complex appeals, it is expected that submissions will be significantly shorter than the permitted 10,000 words.
4. Written submissions in the following classes of appeals shall not, save with the prior leave of the Court, exceed 5,000 words.
(i) an appeal against the grant or refusal of relief under Article 40.4.2° of the Constitution;
(ii) an appeal against the making or refusal of any interlocutory order;
(iii) an appeal against the making or refusal of any order granting summary judgment;
(iv) an appeal against the making or refusal of:
(a) a winding up order;
(b) an order appointing a provisional liquidator;
(c) an order appointing a receiver;
(d) an order in the course of examinership proceedings;
(v) an appeal against the making or refusal of:
(a) an adjudication in bankruptcy;
(b) an order under Chapter 3 (Debt Settlement Arrangements) or Chapter 4 (Personal Insolvency Arrangements) of Part 3 of the Personal Insolvency Act 2012;
(vi) 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;
(vii) 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);
(viii) 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;
(ix) an appeal from the making or refusal of an order of prohibition in criminal proceedings;
(x) an appeal against the refusal of an ex parte order;
(xi) an appeal against the making or refusal of an order to dismiss proceedings;
(xii) an appeal against the making or refusal of any order for costs;
5. In all cases all footnotes and appendices are to be included for the purposes of the word counts stipulated in paragraphs 1 and 2 above. However, any chronology may be excluded from the word count.
6. Submissions should be logically arranged with appropriate headings and be a concise summary of the submissions to be developed at the oral hearing.
7. Submissions must not include irrelevant, unnecessary or scandalous matter and submissions that include such matter, in particular submissions that include personal attacks on the High Court judge, on any other party to the appeal or on any third party, will be rejected and costs sanctions may also be imposed on any party who attempts to file such submissions.
8. Submissions should be presented in the following format:
(i) All submissions should carry the title and Record Number of the case and should clearly indicate on whose behalf they are presented. Submissions should be dated, should specify the word count on the front page, and where settled by Counsel or Solicitor, the name of such Counsel or Solicitor should appear at the end.
(ii) Submissions should be on A4-size page printed on one side only.
(iii) Font size 12, Times New Roman or similar.
(iv) 1.5 line spaces.
(v) Margins of 3.25 cm at each side and 2.5 cm at top and bottom.
9. Submissions should be lodged in both hard and soft copies. Soft copies should be lodged in accordance with the Information Notice on Filing Appeal Papers Electronically in Civil Appeals during the Covid-19 Pandemic and related matters dated 20 April 2020 (and any Statutory Practice Direction that replaces it). The hard and soft copy submissions must be identical. Once lodged, a copy of the submissions must be served on the other parties to the appeal in accordance with the relevant case management directions.
10. Submissions should follow the following template:
(i) Introduction (which should not exceed two pages) setting out the factual background to the proceedings;
(ii) The judgment appealed from, setting out the principal findings of law and of fact made by the trial judge and indicating the extent to which those findings are in dispute in the appeal;
(iii) The issues to be decided on the appeal and any cross-appeal;
(iv) Submissions relevant to the issues at (iii) above. These should identify clearly the relevant legal principles, focus on the issues in the appeal and engage directly with the findings made by the trial judge. Where evidence is referred to, the precise location in the transcript or an affidavit must be identified (by footnote preferably);
(v) Conclusion which should include an indication of the orders sought.
11. The appellant or moving party should include a chronology of relevant dates as an appendix to their submissions. The chronology should consist only of dates and brief factual entries and must not include submission or argument. If a respondent disputes the appellant’s chronology, they should include their own chronology as an appendix to their submissions identifying clearly the points of difference. The chronology need not be included for the purposes of the submission word count stipulated in paragraphs 1 and 2 above but it must not be used to circumvent the applicable word count.
12. The submissions should identify and specifically address all authorities of significance to the resolution of the issues on appeal. Parties and practitioners are reminded of their responsibility to bring all relevant authorities to the attention of the Court and, for that purpose, are expected to take all reasonable steps to identify such authorities. Parties and practitioners must ensure that authorities on which they rely have not been subsequently reversed on appeal or over-ruled. Citation of authorities for propositions that are not in dispute should be avoided.
13. Where a party seeks to set aside any finding of fact made by the High Court, their submissions must identify the basis upon which they maintain they are entitled so to do, having regard to the principles enunciated in Hay v. O’Grady [1992] 1 I.R. 210 and subsequent judgments.
APPEAL BOOKS
14. Subject to any order made at a Directions hearing, the appellant shall, not later than 4 weeks before the date fixed for the hearing of the appeal, lodge in the Court of Appeal Office four hard copies of the appeal books prepared as set out below. Once lodged, the Court of Appeal Office will invite the appellant to upload an electronic copy of the appeal books to its Sharefile platform. This electronic copy should comply with the requirements of the Information Notice on Filing Appeal Papers Electronically in Civil Appeals during the Covid-19 Pandemic and related matters dated 20 April 2020 (and any Statutory Practice Direction that replaces it). Once the appeal books have been lodged with the Court of Appeal Office, the appellant must, as soon as practicable, serve a hard copy of the books on each respondent to the appeal. The appellant shall seek to agree the index to each appeal book by sending same to the respondent(s) no later than 8 weeks prior to the hearing date who must respond with any proposed amendments within 2 weeks.
15. Compliance with the time-limits in paragraph 14 above is essential to the proper functioning of the Court and the effective and efficient hearing of appeals. Any failure to comply with these time-limits in relation to an appeal may result in that appeal being adjourned or dismissed and/or in the imposition of cost orders against the party or parties in default.
16. All appeal books must be clearly indexed, tabbed and paginated. All documents in the appeal books must be legible and complete. Books should not be over-filled and excess documentation should not be forced into them. Books must be capable of being easily opened and usable with ease. Books should be clearly identified on the cover and (where possible) on the spine as to the content and, if appropriate, the number of the book.
17. Where there are three or more appeal books, the books should be numbered sequentially and at the same time as the appeal books are delivered to the Court of Appeal Office, 4 copies of an index to the books shall be lodged with the Office. This index (which shall be provided separately and not included in the books of appeal) shall identify by number and name each book of appeal and identify in detail the contents of each book. Exhibits to affidavits should be described specifically and not simply by exhibit number.
18. The appeal books shall comprise:
A. Core Book comprising:
(i) High Court order appealed from;
(ii) High Court written judgment, or, if an ex tempore judgment, a certified transcript or agreed note (signed by or on behalf of each party by Counsel or Solicitor) approved by the High Court judge;
(iii) Notice of Appeal;
(iv) Respondent’s Notice(s);
(v) Submissions of the appellant on the appeal;
(vi) Submissions of the respondent on the appeal.
B. Book of Pleadings:
(i) Where the appeal is in proceedings commenced by plenary summons, copies of the summons, any statement of claim, defence and any reply in chronological sequence: requests and replies to particulars or other notices or documents exchanged should only be included where relevant to the issues on appeal;
(ii) Where the appeal is in proceedings commenced by personal injuries summons, copies of the summons, any requests for particulars and replies to such requests, defence, reply, notices served pursuant to SI 391 of 1998 and all affidavits of verification.;
(iii) Where the appeal is in any other proceedings, copies of the originating document and any other document in the nature of a defence or statement of opposition;
(iv) Where the appeal is from an interlocutory order, in addition a copy of the notice of motion;
(v) Any order, other than the order appealed from, or direction of the High Court relevant to the appeal.
C. Book(s) of Evidence in the High Court:
(i) Where the evidence in the High Court was on affidavit, copies of each affidavit (including exhibits, which should be appropriately and individually described in the index) relied on or opened in the High Court set out in chronological sequence. Where these extend beyond one Lever Arch file, only affidavits should be included in the first Level Arch file with relevant exhibits in subsequent ones;
(ii) Where the affidavits exceed 100 pages in length, the appellant must, when lodging the books of appeal, identify the particular affidavit(s) and/or portions of the affidavits on which they intend to rely for the purposes of the appeal. If the respondent to the appeal intends to rely on any additional affidavit material, they must furnish to the Court of Appeal Office a document identifying any such additional material within 14 days.
(iii) Where the exhibits exceed 100 pages in length, the appellant must, when lodging the books of appeal, identify the particular exhibit(s) and/or portions of the exhibits on which they intend to rely for the purposes of the appeal. If the respondent to the appeal intends to rely on any additional exhibits or portions of exhibits, they must furnish to the Court of Appeal Office a document identifying any such additional material within 14 days.
(iv) In every case where oral evidence was given, an index identifying each witness who gave evidence, the party on whose behalf that evidence was given and indicating by reference to transcript number and page where that evidence is contained shall be provided
(v) Where oral evidence was given over 4 days or less, the complete transcript of the evidence given at trial certified as accurate by the transcript writer or provider; the transcript should be accompanied by an index identifying each witness who gave evidence, the party on whose behalf that evidence was given and indicating by reference to transcript number and page where that evidence is contained. The transcript should be in a full page rather than condensed format.
(vi) Where oral evidence was given over more than 4 days, an agreed book of extracts of the transcript of the evidence relevant to the issues in the appeal. These extracts should contain, and only contain, the evidence relevant to the issues on appeal. The transcript extracts should be in a full page rather than condensed format. Save with the prior leave of the Court, it is not permissible to lodge the complete transcript of the evidence. The index to the transcript extracts must, in respect of each witness whose evidence is included, identify the witness, the party on whose behalf the evidence was given, whether given in direct examination or cross-examination. The extracts must be sufficient to enable the Court to understand the context in which the evidence was given;
(vii) Book(s) of any documents admitted in evidence in the High Court relied on by either party as relevant to the appeal. Where the documents exceed 20, there should be one agreed Core Book of documents most relevant to the issues on appeal;
(viii) Where only extracts from the transcript (under (iv) above) are included, the appellant shall lodge with the appeal books a single copy of the entire transcript of the evidence given in the Court below. The transcript shall be lodged electronically where directed by the Registrar.
(ix) In proceedings commenced by personal injuries summons, the Book of Evidence shall include such expert reports exchanged between the parties pursuant to SI 391 of 1998 as were put in evidence in the High Court.
19. Where the volume of appeal papers permits, and subject always to compliance with paragraph 16 above, the Core Book, Book of Pleadings and/or Book(s) of Evidence may be amalgamated into a single volume.
20. Parties are reminded that, where it is intended to rely on DAR transcripts for the purposes of an appeal, it is the responsibility of the appellant to make an application for such transcripts in a timely manner, so as to ensure that the requirements of paragraph 14 above are complied with.
AUTHORITIES
(a) It is the responsibility of the parties to the appeal to agree a book of authorities. Subject to any Directions given by the Court, no later than 8 weeks prior to the hearing date, the appellant should deliver to the respondent and any other parties to the appeal a draft list of the authorities to be included in the books of authorities having regard to paragraphs(c) and (d) below. No later than 6 weeks prior to the hearing date, the respondent and any other party shall deliver to the appellant a list of any additional authorities to be included in the agreed books of authorities.
(b) Unless otherwise directed by the Court, the appellant shall, not later than 4 weeks before the date fixed for the hearing of the appeal, lodge in the Court of Appeal Office four copies of the agreed indexed and tabbed book(s) of authorities.
(c) Where a case has been reported in the Irish Reports or the Irish Law Reports Monthly, such report is the only report of the case which should be included in the book of authorities. If a case has not been reported in the Irish Reports or the Irish Law Reports Monthly but has been reported in another series of law reports, that reported judgment should be included in the book of the authorities.
(d) No unreported judgment or computer-generated copy should be included where a reported judgement is available
(e) Parties and practitioners are expected to exercise their judgment and to co-operate to ensure that, while all necessary authorities are provided to the Court, the provision of unnecessary authorities is avoided. Parties and practitioners are reminded that it is only necessary to include in the books of authorities those judgments that are likely to be referenced to a significant extent in oral argument and/or which the Court will require to review in detail in preparing for and deciding the appeal. It is not necessary that authorities, extracts from which are merely referred to in written submissions (and in particular those which simply apply well-known principles with which the Court will be familiar), should be included in books of authorities. The inclusion of multiple authorities for the same proposition of law should be avoided.
(f) Where the agreed authorities cannot conveniently be incorporated in one booklet of authorities, a core booklet of authorities should be prepared and clearly labelled, and should contain those authorities and materials considered to be central to the case and likely to be most frequently referred to during the course of argument. The remaining materials and authorities should be incorporated in supplementary booklets and organised and ordered as set out in the provisions of this paragraph and contained in files clearly labelled and numbered sequentially.
(g) Booklets of authorities should unless otherwise ordered be presented in the following format and sequence:
(I) Any relevant provisions of the Constitution;
(II) Any relevant provisions of the EU Treaties and/or secondary EU legislation;
(II) Any relevant Irish statutory provisions;
(III) Irish authorities set out in chronological order;
(IV) Any relevant decisions of the CJEU or General Court and any relevant Advocate General Opinions, set out in chronological order
(IV) Any international authorities relied on, organised by jurisdiction, and within such jurisdictions, set out in chronological order;
(V) Other Materials including extracts from text books and learned journals,
(h) While the full report of a case should ordinarily be included in the booklet of authorities, where a case report is very lengthy and it is clear that a significant portion of the text contained in an authority is not relevant to the issues arising in the proceedings, an extract of the case report concerned will suffice, provided that the title of the case, the court(s) and date(s) of judgment, the subject headings and reporter’s headnote (if any) should always be included.
(i) While the full text of primary and secondary legislation should ordinarily be included in the booklet of authorities, where the legislation concerned is very lengthy and it is clear that a significant portion of the text is not relevant to the issues arising in the proceedings, the following should be included:
(I) the legislative provisions relevant to the issues arising;
(II) other key provisions of the legislation which may be of assistance in understanding the context of the provision which is relevant to the issues, e.g. the long title, any other subsections contained in the provision of the legislation concerned which are relevant and any other provision in the legislation which defines an expression used in the provision being relied on or would assist in interpreting or putting into context the provision being relied upon.
GENERAL
21.(a) Parties are expected to engage constructively with each other in determining the materials (including authorities) which are genuinely required to be included in the papers provided to the Court so as to avoid the inclusion of unnecessary materials and avoid the risk of materials of significance being omitted from the booklets provided to the Court and having to be produced to the Court during the appeal hearing.
(b) No additional material may be produced to the Court at the appeal hearing without leave of the Court.
(c) The parties, and in particular counsel or solicitor presenting arguments, must ensure that at the hearing they are using the same books of appeal as those provided to the Court.
(d) Non-compliance with a requirement of this Practice Direction may result in any one or more of the following consequences:
(I) Where such non-compliance relates to a failure to comply with the requirements of this Practice Direction with respect to a document or appeal book, the Registrar may reject the document, or appeal book,
(II) In any case, the Court may make such orders as it considers appropriate, including (but not limited to):
(i) orders disregarding, disallowing, or striking out submissions whether in whole or in part;
(ii) orders in relation to costs (including, but not limited to, orders disallowing in whole or in part the costs of the party in default).
(iii) orders dismissing an appeal or striking out a notice of appeal and consequential orders for costs.
(III) The previous paragraphs are strictly without prejudice to the power of the Court or (as the case may be) the case management judge to make an appropriate “unless” order in the event of a failure to comply with this Practice Direction
22. This Practice Direction is without prejudice to any case management directions that the Court or any member of the Court may give in relation to the case management of any specific appeal.
23. (a) This Practice Direction will come into operation on 3 October 2022.
(b) With effect from 3 October 2022, CA 06 issued on 20 December 2016 and re-issued in revised form on 10 November 2021 shall be revoked but without prejudice to the validity of any act or proceeding done or taken thereunder.
Dated 1 June 2022
George Birmingham
President of the Court of Appeal