PRACTICE DIRECTION - 4.1

CIVIL APPEALS TO THE COURT OF APPEAL

A    General

1.    This Practice Direction is intended to provide comprehensive directions for the conduct of the civil business of the Court of Appeal.

2.    The task of overseeing the conduct of the civil business of the Court of Appeal and in particular the operation of this Practice Direction will be entrusted under the supervision of the Chief Judge to the Registrar (or alternatively to a Master to be nominated from time to time by the Chief Judge for that purpose) who is referred to hereafter as "the Registrar of Civil Appeals".

3.    The following parts of this Practice Direction deal with the following matters:

B - Applications for leave to appeal

C - Title of appeals

D - Listing of appeals

E - Documentation

F - Skeleton arguments

G - Case management

H - Dismissal of appeals by consent

I - Litigants in person

4.    The provisions of this Practice Direction are subject to any specific directions which the Registrar of Civil Appeals or a member of the Court of Appeal may make or give in any particular case.

5.    This Practice Direction reflects some of the changes brought about by the Civil Justice Reform. Any feedback including suggestions or proposals for its improvement will be welcome, and should be addressed to the Registrar of Civil Appeals.

B    Applications for Leave to Appeal

6.    Order 59, rules 2A to 2C deal with applications to the Court of Appeal for leave to appeal.

7.    Every application for leave to appeal made to the Court of Appeal under Order 59, rule 2A must be by way of summons accompanied by draft grounds of appeal, affidavit evidence where appropriate (such as to demonstrate any justification for an extension of time) and written submissions (in the form of skeleton arguments) as to why leave to appeal should be granted. In most cases, the requirement of a statement setting out the reasons why leave to appeal should be granted can be fulfilled by providing the above documents. Two sets of such documents are to be lodged with the Court.

8.    A party who intends to resist an application for leave to appeal must, within the specified time, serve affidavit evidence where appropriate and written submissions (in the form of skeleton arguments) as to why leave to appeal should not be granted or why leave should only be granted on terms to be imposed. Again, in most cases, the requirement of a statement setting out the reasons why leave to appeal should not be granted, or granted only on terms, can be fulfilled by providing the above documents. Two sets of such documents are to be lodged with the Court.

9.    After receipt of the documents referred to in paragraphs 7 and 8, the Court may determine the application without a hearing on the basis of written submissions only or it may direct that the application be heard at an oral hearing, and in either case, the Court may give such directions as it thinks fit. Accordingly, any party applying for leave to appeal or resisting such leave should, when serving the documents referred to in paragraphs 7 and 8 above, also state whether the application can be determined on the basis of written submissions only or otherwise (and providing reasons), and whether any directions are required.

10.    Where an application for leave to appeal is made, no date for hearing will be given by the Court. Only if the Court directs that the application be heard at an oral hearing will a date for hearing be given.

11.    If a party is aggrieved by a determination of the Court of Appeal on an application for leave to appeal where such determination has been made on the basis of written submissions only and wishes under Order 59, rule 2A(7) to request the Court to reconsider the determination at an oral hearing, it must within the time specified serve any written submissions (in the form of skeleton arguments) as to why leave should or should not be granted. Such written submissions will not be necessary where only the previous written submissions are relied on.

12.    Every application for leave to appeal made to the Court of Appeal under Order 59, rule 2B must be by way of summons accompanied by the same documents referred to in paragraph 7 above. The same procedure referred to in paragraphs 7 to 11 will also apply.

13.    Where an application for leave to appeal is made directly to the Court of Appeal under Order 59, rule 2B(4), justification must also be provided (by way of affidavit evidence and / or written submissions (in the form of skeleton arguments)) as to why leave is sought from the Court of Appeal directly. Such an application should be made in good time so that where the Court of Appeal refuses to entertain the application, an application can timeously be made to the Court below.

14.    If a party is aggrieved by a determination of a single Judge of the Court of Appeal on an application for leave to appeal and wishes under Order 59, rule 2C(1) to request the Court of Appeal to reconsider the determination, it must within the time specified serve any written submissions (in the form of skeleton arguments) as to why leave should or should not be granted. Such written submissions will not be necessary where only the previous written submissions are relied on.

15.    The skeleton arguments referred to under this part should not normally exceed 5 pages on A4 paper in no smaller than 14 pt. size.

C    Title of Appeals

16.    Any application or appeal to the Court of Appeal should only carry the same description of the parties in the title as that which obtained in the Court below. (There should be no references in the title to "the applicant", "the appellant" or "the respondent"; experience has shown that such references or references to "Applicant / Respondent", "Respondent / Appellant" and so on serve only to confuse.)

D    Listing of Appeals

17.    The Court of Appeal will maintain three lists of civil appeals: (1) a list of final appeals (see Order 59, rule 4(1)(c)); (2) a list of interlocutory appeals (see Order 59, rule 4(1)(a)); and (3) an applications list, the titles of which are self-explanatory. (An appeal from an order or decision made or given in the matter of the winding-up of a company, or in the matter of any bankruptcy, even if a final appeal, will, on the production of a certificate of urgency from the appellant's solicitors, be set down in the list of interlocutory appeals.)

18.    All applications to fix a date for the hearing of any application or appeal should be addressed to the Registrar of Civil Appeals, who will instruct the Clerk of Court to fix the earliest date available for the hearing of the application or appeal in accordance with the state of the list to which it has been assigned. The application to fix a date must include the applicant's estimate as to the length of the hearing.

19.    All applications to vary or vacate a date fixed for the hearing of an application or an appeal must be made to the Registrar of Civil Appeals who may refer as necessary any or all of such applications to a single Judge of the Court of Appeal. In order to maintain the integrity of the new listing system, any such application made on the ground of counsel's convenience or availability must be supported by a certificate from counsel's instructing solicitors stating why it is said to be impracticable for other counsel to be instructed and that the lay client has been informed that the result of the application may be to delay the hearing of the appeal.

20.    The Registrar of Civil Appeals must be informed as soon as possible of any settlement or compromise, negating the necessity for a hearing, or of any other event which will or may affect the estimate for the length of the hearing originally given. The information should be communicated orally in the first instance and confirmed by letter.

E    Documentation

21.    By the time cases come before the Court of Appeal, whether on applications or appeals, much of the documentation placed before the Court below is no longer relevant. Parties must take care to ensure and their solicitors will be required to satisfy the Registrar of Civil Appeals that the materials to be placed before the Court of Appeal in any case include only the documents necessary for decision of the issues before the Court. There is no justification for the cost and labour involved in the preparation of bundles containing documents which are never read or referred to and are not relevant to any question at issue on the appeal, and attention is drawn to the Court's powers to make wasted costs orders and to direct the taxing Master to disallow the cost of unnecessary copying.

22.    In cases where the appellant seeks to place before the Court bundles of documents comprising more than 500 pages, the appellant's solicitors must prepare and lodge with the Court the requisite number of copies of a core bundle containing the documents central to the appeal.

The core bundle must include the judgment under appeal, the notice of appeal, the order appealed against, any other orders (if relevant) made in the Court below, and the respondent's notice (if any). It should include only such of the documents put in evidence in the Court below as are central to the appeal, i.e. only those documents in support of, or in opposition to, the appeal which the Court will need to pre-read or which are likely to be referred to in the course of oral argument. Core bundles should contain as much material as is necessary to satisfy the above test and no more.

Core bundles (including documents which were also in the trial bundles) must have their own continuous pagination using the method prescribed below, though leaving the trial bundle page numbers visible along with the new core bundle numbers.

23.    Bundles must be paginated, not numbered merely by document. Each page must be numbered individually and consecutively, starting with page 1 at the top of the bundle and working continuously through to the end. Other numbering systems, such as 1.1, 1.2 or 2A, 2B, etc. must not be used, and care must be taken in preparation of the bundles to avoid the later insertion or interleaving of omitted pages. Page numbers should be placed in the bottom right-hand corner of the page. Page numbers used in previous hearings should be omitted unless such are necessary (for example, where the judgment appealed from contains references to page numbers), in which case care must be taken to distinguish them from the pagination of the appeal bundle(s). Where the documents are too numerous to fit into one file or bundle, each file or bundle should be marked with a letter and the page numbering should continue consecutively on from the end of one bundle into the next; thus, Bundle B and subsequent bundles should not start with page 1 again.

24.    There must be an index of the documents listing the documents and giving the page references for each. In the case of a class of documents such as letters, they can be shown in the index by a general description; it is not necessary to list every letter separately. But if a letter or other such document is particularly important to the case, then it should be listed separately in the index so that attention is drawn to it. In particular in the case of appeals and applications in judicial review proceedings, the letter or other document which constitutes the decision sought to be reviewed must be separately itemised in the index (whether or not it forms part of the exhibit to an affidavit). Where the documents consist of more than one file or bundle, an index covering all of them should be placed at the beginning of Bundle A; there should not be separate indexes for each file or bundle.

25.    All the documents (with the exception of transcripts) must be bound together in lever-arch files or ring-binders. Lever-arch files and ring-binders must not be over-filled (and should never include more than 250 pages) and care must be taken to ensure that the rings close and fit properly so that the pages can be turned over easily. Where each set of bundles consists of more than one file, the spines should be prominently labelled (e.g. Bundle A, Bundle B, etc.). Transcripts should be provided in a separate bundle.

26.    All documents must be legible. In particular, care must be taken to ensure that the edges of pages are not cut off by the photocopying machine or rendered illegible by the binding. If it proves impossible to produce adequate copies of individual documents, or if manuscript documents are illegible, typewritten copies of the relevant pages should also be interleaved at the appropriate place in the bundle.

27.    If there are more than 5 bundles in a case, each of the bundles should also be labeled on the top right-hand corner of the inside cover.

28.    Where the Court has directed that an application for leave to adduce further evidence is to be listed for hearing at the same time as the appeal, separate bundles must nevertheless be lodged in respect of that application so that the further evidence can readily be distinguished from the evidence which was before the Court below.

29.    Time limits for the lodgment of documentation must be complied with and will be strictly enforced except where there are good grounds for granting an extension. Order 59, rule 9(1) requires the documentation referred to therein to be lodged not less than 14 days before the date the appeal is listed to be heard. The appellant's solicitor (or the appellant, if in person) should therefore set about preparing the bundles well in advance of the date on which they are due to ensure due compliance with the said time limit and to ensure that the skeleton arguments properly refer to the hearing bundles. Where there is a cross-appeal, in order to enable skeleton arguments to be served in time, bundles should be lodged well in advance and in any event not less than 21 days before the date the appeal is listed to be heard. The Court will be reluctant to grant any extension of time where the failure to lodge documents within the prescribed time limit is due to failure on the part of the appellant's solicitors (or the appellant, if in person) to start soon enough on its preparation.

30.    The time limit for lodging documents referred to in the previous paragraph applies equally to any applications (other than applications for leave to appeal) to be heard by the Court of Appeal. References to the appellant in that paragraph will be references to the applicant in such applications.

31.    If the work of documentation is delegated to junior members of the solicitor's staff, the member of staff must be instructed fully on what is required and be capable of ensuring that these requirements are met, and the solicitor in charge of the case must personally satisfy himself / herself that the documentation is in order before it is delivered to the Court.

F    Skeleton Arguments

32.    Skeleton arguments and lists of authorities must be lodged in support of every appeal (and cross-appeal) and application to the Court of Appeal and should be lodged with the Registrar of Civil Appeals no later than 14 days before the relevant appeal or application is listed to be heard. A skeleton argument lodged later than this will not be pre-read by the Court and will accordingly fail to serve its only proper purpose. If the appellant's or cross-appellant's skeleton argument is not so lodged the case may be taken out of the list and re-fixed for another date with appropriate consequences as to costs. A respondent who wishes to lodge a skeleton argument and list of authorities should do so 7 days before the application or appeal to which it relates is listed to be heard.

G    Case Management

34.    The Registrar of Civil Appeals may, at any stage after an appeal has been set down, consider whether to exercise the powers conferred on the Registrar by Order 59, rule 9(3) and (4) of the Rules of the High Court to give such directions in relation to the documents to be produced at the appeal, and the manner in which they are required to be produced and as to other matters incidental to the conduct of the appeal, as appear best adapted to secure the just, expeditious and economical disposal of the appeal.

35.    Before giving any such directions the Registrar of Civil Appeals may consult the Chief Judge, Vice-President or Justice of Appeal who is expected to preside at the hearing of the appeal.

36.    Such directions may be communicated to the parties either on paper or at a hearing and any hearing will, if appropriate, be held before the Registrar of Civil Appeals or the Chief Judge, that Vice-President or Justice of Appeal.

37.    The directions to be given may include appropriate directions as to length of time to be allowed to each party for oral argument.

H    Dismissal of Appeals by Consent

38.    Where an appellant (other than a minor or person under disability) does not desire to prosecute an appeal he may present a request signed by his solicitor stating that he seeks to have the appeal dismissed, in which case (subject to the request being initialled by a Judge of the Court of Appeal) the appeal will be dismissed with costs and struck out of the list.

39.    If the appellant desires to have the appeal dismissed without costs his request must be accompanied by a consent signed by the respondents' solicitors stating that the respondents consent to the dismissal of the appeal without costs, in which case (subject to the request being initialled by a Judge of the Court of Appeal) the appeal will be dismissed and struck out of the list.

40.    Where any party has no solicitor on the record any such request or consent must be signed by him personally.

41.    All other applications as to the dismissal of an appeal and all applications for an order by consent reversing or varying the order under appeal will be placed in the list and dealt with in Court.

I    Litigants in Person

42.    All applications and appeals in which the applicant or appellant or respondent is acting in person will be set down in the first instance for a preliminary directions hearing before the Registrar of Civil Appeals, who will at that hearing exercise the powers conferred on the Registrar by Order 59, rule 9(3) and (4) of the Rules of the High Court to give all such directions in relation to the documents to be produced at the appeal, and the manner in which they are required to be produced and as to all other matters incidental to the conduct of the appeal, as appear best adapted to secure the just expeditious and economical disposal of the appeal.

43.    No application or appeal will be placed or listed before the Court of Appeal or any Judge thereof until such directions have been given and the Registrar of Civil Appeals has certified that those directions have been complied with.

J    Commencement Date

44.    This Practice Direction supersedes the previous Practice Direction 4.1 on Civil Appeals to the Court of Appeal dated 31 December 1998.

45.    This Practice Direction shall come into effect on 2 April 2009.

Dated this 12th of February 2009.