Statement by Clarke J. in respect of matters arising from the implementation of the new Supreme Court rules and statutory practice direction
23rd April 2015
There is a sense in which, to a significant extent, these connected cases are the first to be managed in accordance with the new rules and statutory practice direction put in place in relation to the conduct of appeals before the Supreme Court subsequent to the coming into existence of the Court of Appeal. It should, of course, be recorded that these appeals are not, strictly speaking, appeals which arise under the new regime. However, the court, in the course of making an order under Article 64 of the Constitution (which had the effect of cancelling the previous direction made by the Chief Justice with the concurrence of the members of the court to transfer these cases to the Court of Appeal), directed that these appeals were to be case managed in accordance with the provisions of the new regime.
There are, of course, some necessary differences between the process for the conduct of these appeals and that which will apply in the case of a typical appeal which will come before this court in the ordinary way under that new regime. These appeals have not been through a leave stage followed by a notice of intention to proceed. In that limited respect only it is necessary to slightly adapt the procedures provided under the new regime to meet the circumstances of these cases. However, subject to that minor qualification, it is the intention that, from here on, these appeals will be conducted in the same way as if they were appeals from the Court of Appeal in respect of which leave to appeal to this court had been granted in the ordinary way.
It is in that context that I wish, before discussing any appropriate directions with counsel, to make a number of general observations concerning that new regime and to draw attention to some of the features of both the amended Rules of the Superior Courts now applicable to appeals to this court and to the statutory practice direction issued by the Chief Justice under the power conferred on her in that regard by the Court of Appeal Act, 2014.
I turn first to the rules. It should be noted that O.58, r.2 now expressly provides that all appeals are to be "prepared for hearing … in a manner which is just, expeditious and likely to minimise the costs of the proceedings". This is an overarching obligation both on the court but also on parties.
Next, it is appropriate to note that r.2(3) now gives express power to the Supreme Court to direct the service of written submissions. It is important to emphasise that written submissions, unless not directed, now form part of the appeal process. Such submissions are intended to include all of the points sought to be addressed by the relevant party on the appeal and are not to be regarded as either skeleton or outline submissions. They are a written part of the formal procedure of the court. Thatbeing said it will be necessary to turn to the need to ensure that written submissions are, nonetheless, concise when dealing with the statutory practice direction and what it says about such submissions.
Next, it is important to emphasise that r.3 gives an express power to the court to give such directions as to the conduct of the 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". There is, therefore, in addition to the obligation already identified which rests on parties to act in an efficient manner, a power given to the court to give whatever directions may be required to achieve the same end.
Many of the provisions of the amended Rules of the Superior Courts are concerned with the process for obtaining leave to appeal. That process does not arise on these appeals. Furthermore, the court has made comment on that process in the course of a number of determinations already issued and will, doubtless, make further general pronouncements in the context of such applications for leave to appeal as may arise in the future. For those reasons I do not propose to comment on that aspect of the procedure in this short statement. However, it should be noted that, in reality, an appeal before the Supreme Court commences only when leave has been given and when the potential appellant serves a notice of intention to proceed. Unless and until leave is given the court has no substantive jurisdiction save to process and consider the leave application.
Next is should be noted that, while it might, superficially, be taken to be redundant to require an appellant to serve a notice of intention to proceed, it is important to emphasise that a party may not obtain leave to appeal on all of the bases on which leave was sought. In those circumstances a party may not wish to proceed with an appeal if the basis upon which leave was granted was not considered by that party to be sufficient to warrant taking the appeal concerned.
The point which these appeals have now reached is analogous to the situation which will arise in the new regime when a notice of intention to proceed has been served and the appeal is alive. Thereafter, under r.24(1), the matter is to be listed for the purposes of giving directions or other orders in relation to the conduct of the appeal. This case management or directions hearing is, therefore, conducted in accordance with that rule.
It is particularly important to emphasise that the documents which are required to be lodged for the purposes of such a hearing are limited and are, subject to a minor qualification, those set out in r.24(2)(a) to (f). Parties may note that sub. rule (f) allows for the inclusion in the directions booklet of "any other document" to which a party proposes to refer at the directions hearing. The court would wish to emphasise that, while there may well be documents which properly come within that category, that rule should not be used for the purposes of including a significant volume of documentation which, while potentially relevant to the appeal itself, is unnecessary for the purposes of giving directions. Parties will not be thanked for burdening the court with excessive documentation which is not required for the narrow purposes of giving directions. Indeed, in this, and other respects, the court may well consider making orders disallowing costs in respect of the filing of unnecessary documentation. I will return to the contents of the relevant book of documents when dealing with the statutory practice direction.
Attention should also be drawn to the provisions of r.25(1) which provides that, unless otherwise directed, written submissions should be filed and exchanged. The rule expressly sets out that those written submissions must comply with any statutory practice direction. The requirements of the statutory practice direction in that regard both as to the timing and content of written submissions is something towhichI will shortly turn. Before leaving the rules I should also draw attention to r.26(1) which does provide for a certificate of readiness. It is, however, envisaged that, at least in the vast majority of appeals under the new regime, the court will itself be aware from the case management process as to when the appeal is ready. It is likely, therefore, that parties will be dispensed with the obligation to file a certificate of readiness in the vast majority of cases precisely because the court will itself be satisfied that the appeal is ready and will be able to arrange for the case to be listed for hearing.
I next turn to the provisions of the statutory practice direction. I might start by noting, even though it is not relevant to these appeals, that para. 17 provides that the notice of appeal (which is the grounding document for the application for leave to appeal) will operate as the substantive notice of appeal in respect of those grounds on which leave was granted but excluding any grounds on which leave was refused.
Unless the court has, when giving leave, made contrary directions, then para. 19 requires that written submissions are filed by the appellant within two weeks of the lodgement of the notice of intention to proceed and two weeks thereafter in respect of each respondent. Thereafter, what is described as the core book of appeal should be filed which book is required to contain, in substance, the same documents as are required to be filed in accordance with r.24(2) except that the core book will also normally include the written submissions of either party. This arises from the fact that, in the absence of contrary directions, the statutory practice direction provides for a time line which places the filing of written submissions before the directions hearing. It should be emphasised that, in all cases governed by the new regime, the obligation is now on the parties to file written submissions immediately after it is clear that an appeal is going to go ahead. It should also be emphasised that it is the intention of the court to apply a much stricter regime in respect of time limits provided for both in the rules and in the statutory practice direction. It should not be assumed that extensions of time will readily be given. Nor should it be assumed that, where such extensions are given, there may not be costs implications nonetheless.
In substance, therefore, what the combined effect of the rules and the statutory practice direction require is that written submissions are to be filed by the appellant within two weeks of a notice of intention to proceed and by the respondents within a further period of two weeks thereafter. A core book of appeal containing only those documents set out in para. 19 of the statutory practice direction together with any other documents permitted by the rules but subject to the stricture in that regard to which I have earlier referred should then be filed to enable the directions hearing to go ahead.
It is next necessary to note what the statutory practice direction says about written submissions. This is dealt with in para. 20. It should be emphasised that the formal and formatting provisions set out in that practice direction should be complied with. The Registrar of the Supreme Court has authority to reject for filing any document which is not in substantial compliance with the requirements of the statutory practice direction.
It is also important to note the template for submissions specified in para. 20(d). It should be recorded that any introductory or background matters should, as specified in that paragraph, not exceed two pages. It has to be said that, in the past, it has sometimes been necessary to read until close to the end of written submissions to understand what issues are truly raised on the appeal.
Parties should also be mindful of the fact that the facts which are to be set out in the written submissions should, save for a very brief background account, be only those facts which are material to the issues which ariseon the appeal. Likewise, parties are reminded that the only facts which are admissible are those which were either determined by the trial judge or in respect of which it can be said that there was no issue at the trial either because of admissions contained in the pre-trial procedure (including pleadings) or by virtue of evidence not being challenged at the trial. To the extent that the admissible facts have been altered by virtue of findings of the Court of Appeal that also needs to be taken into account. To the extent that a party wishes to contest findings of fact by the trial judge then it is important that that question is identified (if it permissibly arises on the appeal) and a basis for such contest should be specified.
So far as legal issues are concerned, parties are reminded that it is unnecessary to set out quotations from case law establishing well known and uncontroversial propositions of law. The specific legal issues relied on should be clearly and separately identified and a concise argument in favour of the party's position on that issue set out by reference to such materials, whether statutory, case law or learned articles, as the party wishes to rely on.
So far as replying submissions are concerned, it is of the utmost importance that those submissions engage with the submissions filed on behalf of the appellant. A separate account of, for example, the facts or the law, which does not seek to identify points of agreement or points of dispute, will not be regarded as being helpful. It is, of course, open to a replying party to suggest that there are additional facts which may be material to the appeal or that the facts asserted on behalf of the appellant are not admissible for any of the reasons identified earlier or, indeed, on any other proper legal basis. However, a simple re-recitation of facts should not be included.
Likewise, so far as legal aspects of the submissions are concerned, same should engage with the legal issues raised in the appellant's submissions. That does not, of course, mean that a respondent may not properly refer to other legal questions which are said to arise within the ambit of the appeal or other authority which may be said to impact on the issues.
Finally, it should be noted that the submissions should keep within the word limit specified in the statutory practice direction. If a party, having filed its written submissions in accordance with that requirement, feels that the submissions are inadequate to deal with all of the issues arising then it will, of course, be open to that party to attempt to persuade the judge hearing the case management directions hearing to allow expanded submissions to be filed. That fact should not, however, prevent compliant submissions from being filed in the first place. One further point should be mentioned. Where there is before the Court more than one appeal (whether arising out of the same or connected proceedings) but where it is intended that all appeals be heard together, then it is important that, insofar as it may be practicable, a single set of submissions in respect of each party, or in respect of each party who has a common interest, should be filed. To the extent that parties may have a different interest or to the extent that there may be aspects of the case to which different considerations may apply, it will, of course, be appropriate to file additional submissions. However, there should be no unnecessary duplication. Arrangements should be made between parties who have the same or a similar interest to ensure that the submissions which are common to their respective interests are only set out once and are adopted by any other relevant party. Thus, for example, there is no reason why a single set of submissions cannot be filed if a common legal team has been engaged to represent a number of different parties who have substantially the same interest. If it is necessary to make a small number of additional points in respect of an individual party to reflect the particular facts or circumstances ofthat party's casethen a brief supplemental submission (preferably within the one document) can be filed to deal with those matters.
I should, in the context of these appeals, first commend the fact that the directions booklet filed conforms exactly with the requirements of the rules and the statutory practice direction properly adapted to reflect the fact that these appeals come before this court as a result of an Article 64 order rather than as a result of leave. I should also note that, as per the statutory practice direction, those core books contain the written submissions of the appellant which have already been filed. It is again commendable that a single set of submissions are filed covering all of the issues which arise on these appeals. Those submissions were, in fact, filed prior to the Article 64 direction which required compliance with the new regime. Having looked at the submissions filed it does not seem to me that any useful purpose would be served by requiring those submissions to be redrafted to comply with the precise provisions of the statutory practice direction. I will shortly discuss any further directions concerning submissions.
Next, it is important to note the provisions of the statutory practice direction in respect of books of authorities (para. 22), transcripts (para. 24), documents (para. 25) and pleadings and affidavits (para. 26).
Attention is drawn to the provisions of each of those paragraphs which require, in the event that the total amount of documentation arising under any of those headings if voluminous, that a true core book be produced containing only those materials which are likely to be referred to at the oral hearing. The intention is that the documents likely to be referred to at the hearing should be capable of being contained within a small number of books being a core book of appeal, a book of core authorities, a book of core transcripts, a book of core documents and a book of pleadings. That does not mean that there may not be occasions when documents from outside those core books, but which are properly before the court, may not have to be referred to. However, the experience of the court is that very large volumes of documents are filed and only a very small amount of that documentation is actually referred to in the course of the oral hearing. Attention is also drawn to the requirement set out in the statutory practice direction that the parties cooperate to ensure that such core books are properly produced. It must, in that context, be recorded that such agreement requires that some reasonable accommodation be given to all sides. Doubtless, in each category, there will be documents which, on any view, are relevant. Central statutory provisions or case law; key passages from transcripts or documentary evidence or the like. But to the extent that any party may have a particular reason to place reliance on other documents then the core books must be prepared by giving reasonable respect to the requirements of each party.
Where any legal authority is lengthy it is acceptable for the parties to agree that only relevant extracts be included. This practice is to be encouraged. Likewise, it is unnecessary to file large documents in full where the parties agree that only extracts from the document in question are relevant.
Attention should also be drawn to the fact that, in each category, there is provision for the inclusion of additional documentation in books which go beyond the core book. Thus authorities, beyond the core authorities, may be included in an addition book or books of authorities and documents, beyond the core documents, may be included in further books of documents. That fact does not take away from the obligation of the parties to ensure that it is only the documents which are central to the oral hearing which are included in the core books. Furthermore, and to the extent that additional documentation may be necessary, it is important to note the provisions of para. 27 of the statutory practice direction concerning the necessity to ensure that only relevant documents, under any heading, are included. In exceptional cases it may be possible to persuade a case management judge to deviate from the statutory practice direction in respect of the preparation of core books because of the particular exigencies of the appeal or appeals in question. However, it is important to emphasise that a ruling in that regard should be obtained before documents are prepared in a manner which does not strictly conform with the practice direction.
Next, it should be noted that documents which were produced in the context of interlocutory hearings (such as affidavits filed in relation to motions before the High Court or affidavits of discovery or the like) should not be included in the book of pleadings unless they are directly material to issues which arose at the trial and which remain alive on the appeal. If there was, for example, an issue over discovery which arose at the trial and which is material to an issue which is before the court on appeal, then an affidavit of discovery may well be relevant. On the other hand, the documents prepared in respect of a routine discovery application and the affidavit of discovery sworn as a result thereof, will not, ordinarily, be relevant and should not be included.
Finally, it is necessary to draw attention to the provisions of para. 31 of the statutory practice direction which concerns non-compliance. Sub-para. (a) permits the Registrar to reject any document or book which does not comply with the practice direction. It is emphasised that a prior ruling of the court should, therefore, be sought where it is desired to lodge a document or book which does not comply with the rules or the practice direction.
Attention is also drawn to the power of the court or a case management judge to strike out submissions which are non-compliant and, importantly, the power to take non-compliance into account in relation to any order for costs. As noted earlier it is the intention of the court to apply a much stricter regime in respect of compliance then might have been considered to be the case in the past. The court will actively consider, on a case by case basis, exercising the powers contained in para. 31 where there is significant and material non-compliance.
I should finally add, before referring to any case management issues which may arise in the context of these appeals, that nothing in this statement should be taken as in any way reflecting on these appeals per se. This statement is intended to provide general guidance in respect of all appeals which will come before this court under the new regime. It is only made in the context of these appeals because these appeals are the first to be managed in accordance with that regime.