Appeal Extend & Stay

Extend Time to Appeal

The appeals court, the Court of Appeal and Supreme Court may extend time set by the rules for an appeal. In some cases, there is a statutory provision which may limit this power. Generally, an application for extension of time is required.

In the Court of Appeal, the respondent may consent to late filing. In  the Supreme Court an application is required in this instance and the respondent’s opinion should be communicated.

An application may be made to extend or shorten any time limit set in the rules  or for directions to the relevant judge assigned for such purpose. An application to extend time to apply for leave to appeal must be made to the Supreme Court or the designated judge.

Criteria

In order to extend time, the applicant must show that  a bona fide  intention to appeal was formed within the time limit. The existence of a mistake as to procedure or a mistake of counsel or solicitor is not sufficient. There must be arguable grounds for appeal.

The court seek to operate within the constitutional and legal rights of both parties to fair  procedures. It seeks to balance the interests of justice on all sides. Failing to bring proceedings to finality is in itself a potential and significant injustice. Excluding parties from potentially meritorious appeals also runs the risk of injustice.

Prejudice to successful parties who have operated on the basis that once the time for appeal has expired, proceedings are at an end, must also be a significant feature. The administration of justice in an orderly fashion is also a heavy consideration. How these factors interact, depend on a careful analysis of the facts of the particular case.

No Automatic Stay

An appeal or application for leave to appeal, if required to the Court of Appeal does not stay execution of proceedings on the decision, unless the High Court orders, or if the High Court refuses, the Court of Appeal orders otherwise.

Similarly, an appeal to the Supreme Court does not operate to stay proceedings unless the Court of Appeal or the High Court otherwise orders.. No application for relief by way of a stay may be made to the Supreme Court before the application for leave to appeal is decided. A party can appeal the decision of the lower court to grant a stay. This may not be done in the case of the Supreme Court until leave to appeal has been given.

Stay Criteria Factors

The courts consider the balance of justice in deciding whether or not to grant a stay on appeal. There must be as debatable or arguable basis for an appeal. The courts consider factors as

• whether liability is genuinely in issue; heavy responsibility lies on legal advisers for those seeking a stay to assist the court on the reality of the appeal on liability
• the court should not be trying the appeal
• whether there are the issues raised upon an argument
• whether the findings of fact are supported by credible evidence
• monies paid on account of the decree may not be recoverable
• bringing an appeal can itself be damaging to an injured party; appeals have been brought may be brought again not as bone fide appeals but as bargaining weapons
• the length of time between the incident and trial
• the prospective length of time between trial and appeal

Risk of Injustice

The court should first determine whether the applicant has established an arguable case. If not , a stay should be refused. The court should consider where the greatest risk of injustice lies. In so doing, the court should

• give all appropriate weight to the orderly implementation of measures that are presumptively valid
• give such weight as may be appropriate if any to public interest in the orderly operation of the particular scheme in which the measure under challenge was made
• give appropriate weight to any additional factors arising on the facts of the case which would heighten the risk to the public interest of the specific measures under challenge not being implemented
• it should also give due weight to the circumstances of the applicant if required to comply with the measure under challenging circumstances where that measure may be found not lawful.

The court may have regard to whether damages are available and would be an adequate, remedy based on an undertaking to damages

Subject to the issues arising, and the inability to undertake a detailed investigation of facts and consider questions of law in depth, the court may place due weight on the strength or weakness of the parties applicant’s case.

Amend Appeal

A notice of appeal may be amended at any time on such terms as the Court of Appeal thinks fit. A similar rule applies in respect of the Supreme Court. An application for leave to amend, is by motion on notice to the other parties.

It should generally be made well in advance of the hearing. It should not put forward a wholly different case. Leave will not be granted if it would be unfair on the other party and where the amendments are very substantial and change the nature of the appeal.