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Rules of the Superior Courts

Order: 58

Proceedings in the Supreme Court : S.I. No. 485 of 2014


Note
(this note is not part of order 58)

Paragraph 2 of S.I. No. 485 of 2014 (Rules of the Superior Courts (Court of Appeal Act 2014) 2014) provides:

"2. (1) Nothing in these Rules shall affect the validity of any step taken or any other thing done:

      (a) in any proceedings on any appeal to the Supreme Court initiated before the establishment day referred to in section 5 of the Court of Appeal Act 2014

        (i) from the Court of Criminal Appeal, or

        (ii) from the Courts-Martial Appeal Court, or

        (iii) from the High Court

          (I) which do not fall within a class of appeals specified in a direction given under Article 64.3.1° of the Constitution, or

          (II) which fall within a class of appeals specified in a direction given under Article 64.3.1° of the Constitution the effect of which direction has been cancelled, so far as it relates to the proceedings concerned, by an order made in accordance with Article 64.3.3° of the Constitution, and

          (III) in respect of which no order has been made in accordance with Article 64.4.1° of the Constitution, or

      (b) in any other proceedings before the Supreme Court initiated before the establishment day referred to in section 5 of the Court of Appeal Act 2014,
    and such proceedings shall, subject to any order made by the Supreme Court, the Chief Justice or a Judge of the Supreme Court nominated by the Chief Justice under section 7(6) of the Courts (Supplemental Provisions) Act 1961, in those proceedings, be continued and completed as if these Rules had not been made."

    See also:
    Paragraphs 1 to 6 of S.I. No. 485 of 2014
    and
    Version of Order 58 in effect prior to the establishment day referred to in section 5 of the Court of Appeal Act 2014

    I. PRELIMINARY AND GENERAL


    Interpretation and scope

    1. (1) In this Order— “appellant” means:

    (a) a person who makes or intends to make an application for leave to appeal to the Supreme Court; or

    (b) a person who has been given leave to appeal to the Supreme Court (including a person maintaining an appeal to the Supreme Court initiated before the establishment day referred to in section 5 of the Court of Appeal Act 2014 and who is entitled by law to continue that appeal before the Supreme Court), and

    includes, where the context so admits or requires, and subject to such modifications as may be necessary, the moving party in any matter before the Supreme Court other than by way of application for leave to appeal or appeal;

    the “court below” means the court from which an appeal (or application for leave to appeal) is made to the Supreme Court;

    “decision” includes judgment, order, verdict, finding or determination; the “Office” means the Office of the Registrar of the Supreme Court; “record” has the same meaning as in Order 125;

    the “Registrar” means the Registrar of the Supreme Court;

    “requisite number” means the number of copies which are to be provided under the relevant statutory practice direction or as directed by the Supreme Court or the Registrar;

    “respondent” includes

    (i) a respondent to an application for leave to appeal and

    (ii) where relevant, any party other than the moving party in any matter before the Supreme Court other than by way of application for leave to appeal or appeal;

    “statutory practice direction” means a practice direction issued under section 7(7) of the Courts (Supplemental Provisions) Act 1961;

    references to the “Supreme Court” include:

    (a) in relation to any interlocutory application or procedural application or motion referred to in section 7(3A) of the Courts (Supplemental Provisions) Act 1961, the Chief Justice or any Judge of the Supreme Court nominated by the Chief Justice in accordance with that subsection to hear and determine such an application, and

    (b) in relation to any directions in relation to the conduct of any proceedings before the Supreme Court, the Chief Justice or a Judge of the Supreme Court nominated by the Chief Justice under section 7(6) of the Courts (Supplemental Provisions) Act 1961.

    (2) This Order applies to all proceedings and applications in proceedings in which the Supreme Court has jurisdiction under law and the procedure under this Order 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 Supreme Court.

    (3) Save where otherwise provided, references in this Order to forms are to the forms in Appendix FF, with the necessary modifications where appropriate to the case.

    Conduct of appeals and applications

    2. (1) All applications, appeals and other matters before the Supreme Court shall be prepared for hearing or determination 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 Supreme Court concerning the progress of any application, appeal or other matter 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 Supreme Court.

    (3) Notwithstanding any other provision of this Order, the Supreme Court may at any time direct the lodgment and service of written submissions on an application or appeal, or on any issue or motion in any application or appeal.

    Directions, intervention and concurrent listings

    3. (1) The Supreme Court may:

    (a) of its own motion when determining an application for leave to appeal, or

    (b) at any time thereafter 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 Supreme Court, 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) Subject to any provision of statute, where any person not a party to an appeal is entitled under any rule of law to apply to be heard in any proceedings before the Supreme Court otherwise than as a party, that person may apply by motion in the proceedings before the Supreme Court on notice to the parties for leave to intervene in the proceedings on such terms as the Supreme Court directs. The Supreme Court, on the hearing of the motion, may give such directions as it considers appropriate as to the hearing of the application for leave to intervene, and where the application is allowed, the extent, form and manner of the intervention permitted and the parties’ rights of response.

    (3) The Registrar may cause appeals arising from the same proceedings or appeals raising the same or similar issues to be listed on the same occasion before the Supreme Court.

    Time limits

    4. (1) The Supreme Court may extend or shorten any time limit set by these Rules (unless to do so would be contrary to any provision of statute).

    (2) The Supreme Court may exercise the powers to extend or shorten time either on an application by one or more parties or without an application being made.

    (3) The Registrar shall notify the parties when a time limit is varied under this rule.

    (4) An application for an extension of time may be granted after the time limit has expired.

    Service

    5. (1) A document for use in proceedings in the Supreme Court 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 Supreme Court

    6. 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

    7. 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 that direction.

    Application in first instance to Court of Appeal or High Court

    8. Subject to any provision of statute, whenever under these Rules an application may be made to the court below or to the Supreme Court, it shall be made in the first instance to the court below.

    Effect of interlocutory order in court below

    9. No interlocutory order or ruling made by a court below from which there has been no appeal operates to bar or prejudice the Supreme Court from giving such decision on the application for leave to appeal or appeal as the Supreme Court considers just.

    Application for leave or appeal not to operate as a stay

    10. (1) An application for leave to appeal or an appeal to the Supreme Court does not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court of Appeal or (as the case may be) the High Court orders.

    (2) No intermediate act or proceeding is invalidated by reason of an application for leave to appeal or an appeal to the Supreme Court, except so far as is directed by the Court of Appeal or the High Court.

    Security for costs

    11. The Supreme Court may under special circumstances direct that a deposit or other security in the amount fixed by the Supreme Court be made or given for the costs to be occasioned by any application for leave to appeal or appeal.

    Amendments

    12. (1) A notice of appeal, or any other document used in an appeal to the Supreme Court, may be amended at any time on such terms as the Supreme Court 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.

    Additional interest allowed without special order

    13. On an appeal to the Supreme Court, interest for such time as execution has been delayed by the appeal is deemed to be allowed, unless the Supreme Court otherwise orders, and the Taxing Master or other proper officer may compute the additional amount of interest without any order for that purpose.


    II. NON-COMPLIANCE

    Non-compliance with requirements as to contents of documents

    14. (1) 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 application or appeal 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 in Form No. 4 to the Supreme Court to authorise the issue of the notice of appeal or other document.


    III. COMMENCEMENT OF PROCEEDINGS IN THE SUPREME COURT

    Application for leave to appeal

    15. All applications for leave to appeal to the Supreme Court shall be brought by the lodgment for issue of a notice in the Form No. 1 (in this Order called the “notice of appeal”) which shall:

    (a) specify the grounds on which leave to appeal is sought under Article 34.5.3° or, as the case may be, Article 34.5.4° of the Constitution;

    (b) specify the grounds of appeal which will be relied upon in the event that leave to appeal is granted.

    Lodgment of application

    16. (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 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) The date of perfecting shall be indorsed on the order by the proper officer of the Court in which the order was made.

    (3) 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.

    (4) Where a written judgment has not been given in the court below, in any appeal in civil proceedings, 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 court below, and

    (ii) where, and then to the extent, necessary for the proper determination of the appeal, a transcript of any ruling or direction of the Judge in the court below.

    (5) In any appeal in civil proceedings, the appellant shall, at his own expense, lodge with the Registrar a transcript of any oral evidence received in the court below certified as accurate by the person responsible for preparing the transcript and authenticated by the court below.


    IV. SERVICE OF APPLICATION FOR LEAVE TO APPEAL

    Service of application

    17. (1) A copy of the notice of appeal shall, save in the case of a notice of application for leave to appeal from a decision made otherwise than inter partes, be served, within seven days after the notice of appeal has been lodged, on all parties directly affected by the application for leave to appeal or appeal.

    (2) 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 or appeal, but the Supreme Court 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) Where the Supreme Court has directed further service of notice of an appeal in accordance with sub-rule (2), it may:

    (a) adjourn the determination of the application for leave to appeal or appeal on such terms as it considers just, and

    (b) give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties to the proceedings in the court below or to the appeal.

    (4) The appellant shall produce to the Supreme Court or to the Registrar on request, proof of service of the notice of appeal on each respondent served.


    V. NOTICE BY RESPONDENT

    Lodgment and service of notice by respondent

    18. (1) Each respondent served with a notice of appeal shall, within 14 days after service, lodge in the Office and serve on the appellant and every other respondent a notice in the Form No. 2 (in this Order, “respondent’s notice”), containing, in the manner provided for in that form:

    (a) a statement of whether or not that respondent opposes the application for leave to appeal;

    (b) if that respondent opposes the application for leave to appeal, a concise statement of the grounds on which leave to appeal is opposed;

    (c) a concise statement of the grounds on which the appeal will be opposed if leave to appeal is given, and

    (d) where the respondent intends, on the hearing of any 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, a concise statement of the additional grounds on which it is alleged the judgment or order appealed from should be affirmed.

    (2) The respondent’s notice may be lodged after the time permitted, with the written consent of the appellant.

    (3) A respondent who seeks to vary the decision or order of the court below (i.e. to cross-appeal) may only do so by way of notice of appeal in the Form No. 1 and the provisions of rules 15 to 17 inclusive apply to any such appeal.

    (4) Unless the Supreme Court otherwise directs, a respondent who does not file notice under this rule will not receive any further communication from the Office concerning the appeal.


    VI. DETERMINATION OF APPLICATION FOR LEAVE TO APPEAL

    Determination of application

    19. (1) Where the Supreme Court requires the delivery of written submissions by the parties participating in an application for leave to appeal (or any other application for leave to appeal arising from the same proceedings), the Registrar shall notify the parties of that requirement and the times at which such submissions shall be lodged and served by each participating party.

    (2) A certificate granting leave to appeal:

    (a) shall specify the grounds on which leave is given, and

    (b) may be accompanied by directions on delivery of the appeal books in accordance with rule 25 and any applicable statutory practice direction.

    Notification of determination to parties

    20. When the Supreme Court has determined an application for leave to appeal, the Registrar shall notify the parties, and any other person he considers it necessary to notify, of the determination.

    Notice of intention to proceed with appeal

    21. (1) Where leave to appeal is granted, on all or any of the grounds raised:

    (a) the grounds of appeal are limited to those on which leave has been granted;

    (b) that part of the notice of appeal other than the grounds on which leave was sought (and excluding any grounds of appeal on which leave to appeal was refused) stands as the notice of appeal;

    (c) the appellant shall, within 28 days of the grant by the Supreme Court of leave to appeal:

    (i) lodge in the Office and serve on all respondents notice under this rule in the Form No. 3 of intention to proceed with the appeal, or

    (ii) lodge in the Office and serve on all respondents written notice of intention to withdraw or abandon the appeal.

    (2) Where the appellant does not lodge one or other of the documents referred to in paragraph (c) of sub-rule (1) within the time permitted, or such time as extended by consent or by order, the appeal shall, unless the Supreme Court otherwise orders, be deemed to be abandoned.

    (3) Where an appeal is deemed to have been abandoned, any party other than the appellant concerned may apply to the Supreme Court on notice to the other parties for an order as to the costs of the proceedings.

    Determination of appeals by settlement, abandonment, etc

    22. (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 Supreme Court, 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 notice of intention to withdraw or abandon an appeal is lodged pursuant to rule 21(1)(c)(ii), an appeal is deemed to have been abandoned, or a party notifies each other party concerned and the Registrar in writing of his intention to concede the appeal:

    (a) the proceedings may, on the application of a party or at the direction of the Registrar, be listed before the Supreme Court on notice to the other parties or to the 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.

    Notice under section 32(3) of the Civil Liability Act 1961

    23. 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 notice of intention to proceed referred to in rule 21.


    VII. DIRECTIONS HEARING

    24. (1) Following the lodgment of notice of intention to proceed, unless the Supreme Court has otherwise directed, the Registrar shall list the appeal before the Supreme Court on notice to the parties for the giving of such directions or the making of such orders in relation to the conduct of the proceedings as the Supreme Court thinks appropriate in the circumstances.

    (2) Unless the Supreme Court has otherwise directed, the appellant shall lodge in the Office not later than four days before the date fixed for the directions hearing the requisite number of copies of an indexed and paginated directions booklet for the use of the Supreme Court, comprising copies of:

    (a) the judgment and/or order appealed from; (b) the notice of appeal;

    (c) every respondent’s notice delivered;

    (d) the certificate granting leave to appeal; (e) the notice of intention to proceed, and

    (f) any other document in the appeal to which any party proposes to refer at the directions hearing.


    VIII. WRITTEN SUBMISSIONS AND APPEAL BOOKS

    Written submissions and appeal books

    25. (1) Unless the Supreme Court has otherwise directed, each party shall deliver or exchange and shall lodge in the Office written submissions on the appeal, identifying and addressing the issues arising in the appeal, in conformity with the requirements of, and at the time or times prescribed by, statutory practice direction and such written submissions shall be filed electronically where directed by the Registrar.

    (2) Where a party has not delivered or exchanged and lodged written submissions within the time permitted, the Registrar may, at the request of a party not in default or of his own motion, list the appeal before the Supreme Court on notice to the parties for the giving of such directions or the making of such orders as the Supreme Court considers appropriate in the circumstances.

    (3) Unless the Supreme Court has otherwise directed, within such time following the delivery of the respondent’s written submissions as is prescribed by statutory practice direction, appeal books, containing such documents as are prescribed by statutory practice direction, shall be delivered, and the requisite number of copies of appeal books lodged in the Office.

    (4) In any case where a respondent to an appeal has by separate notice of appeal in accordance with rule 18(3) sought to vary the decision or order of the court below, for the purposes of this rule a single set of the appeal books shall, save where the Supreme Court otherwise directs, be produced for both appeals concerned.

    Certificate of readiness

    26. (1) Unless the Supreme Court has otherwise directed, the appellant shall lodge with the documents referred to in rule 25 a certificate in such form as may be prescribed by a statutory practice direction or, if not so prescribed, as the Registrar may determine, which shall, where possible, be agreed by the appellant with the respondent, which states:

    (a) that the appeal is ready for hearing and/or determination, and includes a reasoned estimate (which shall, where possible, be agreed with the respondent) of the time proposed to be taken for the hearing of the appeal, or

    (b) that the appeal is not ready for hearing and/or determination and the further action necessary in order to render the appeal ready for hearing and/or determination.

    (2) Where an appellant is represented by counsel, the certificate shall be signed by counsel. Where an appellant is represented by a solicitor but not by counsel, the certificate shall be signed by the appellant’s solicitor.


    IX. INTERLOCUTORY APPLICATIONS

    Interlocutory applications to the Supreme Court

    27. (1) Unless otherwise permitted by the Supreme Court, all interlocutory applications to the Supreme Court shall be brought by notice of application in Form No. 4 on notice to every other party to the appeal, application or other matter, grounded on an affidavit sworn by or on behalf of the moving party.

    (2) The notice of application and affidavit shall be lodged in the Office and a copy of the notice and affidavit (and any exhibits) served on every party affected by the interlocutory application not later than four clear days before the date fixed for the hearing of the application.

    (3) The Supreme Court may direct service of the notice of application on any other party.

    (4) Every party served with the notice of application is at liberty to lodge in the Office and serve a copy of a replying affidavit.

    (5) No application for interlocutory relief (including any relief by way of a stay or security for costs) may be made to the Supreme Court before the determination of the application for leave to appeal.


    X. APPLICATIONS UNDER ARTICLE 64.3.3° OR ARTICLE 64.4.1° OF THE CONSTITUTION

    Conduct and determination of applications under Article 64.3.3° or Article 64.4.1° of the Constitution

    28. (1) All applications under Article 64.3.3° or Article 64.4.1° of the Constitution shall be brought by notice (in this rule, the “notice of application”) in the Form No. 4, which shall set out the grounds on which it is alleged that an order should be made in accordance with Article 64.3.3° or, as the case may be, Article 64.4.1° of the Constitution in respect of the appeal concerned.

    (2) The notice of application shall not be grounded on any affidavit and shall be lodged in the Office together with such other documents as may be specified in a statutory practice direction.

    (3) A copy of the notice of application as lodged shall be served, within seven days after the notice of application has been lodged, on every other party to the appeal.

    (4) The moving party shall produce to the Supreme Court or to the Registrar on request, proof of service of the notice of application on every other party to the appeal.

    (5) Each other party to the appeal served with a notice of application shall, within seven days after service, lodge in the Office and serve on the moving party and every other party to the appeal a notice stating whether or not that party opposes the application, and if that respondent opposes the application, setting out concisely the grounds on which the application is opposed.

    (6) When the Supreme Court has determined an application to which this rule applies, the Registrar shall notify the parties, the Registrar of the Court of Appeal, and any other person he considers it necessary to notify, of the determination.


    XI. POWERS OF SUPREME COURT ON APPEAL

    General

    29. (1) Subject to the provisions of the Constitution and of statute–

    (a) the Supreme Court has on appeal and may exercise or perform all the powers and duties of the court below,

    (b) the Supreme Court may give any judgment and make any order which ought to have been made and may make any further or other order as the case requires.

    Powers as to evidence

    30. Subject to the provisions of the Constitution and of statute—

    (a) the Supreme Court 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 Supreme Court (obtained by application by motion on notice setting out the special grounds),

    (d) the Supreme Court may draw inferences of fact in accordance with law,

    (e) if the Supreme Court 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 Supreme Court deems expedient,

    (f) where the Supreme Court considers it necessary, it may direct the Registrar to apply to the trial Judge for a report to the Supreme Court on the trial or any part of the trial.”