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Rules of the Superior Courts

Order: 58

Proceedings in the Supreme Court : S.I. No. 583 of 2018
I. PRELIMINARY AND GENERAL

Interpretation and scope

1. (1) In this Order—

“appellant” means 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;

“applicant” means a person who makes or intends to make an application for leave to appeal to the Supreme Court;

“applications for leave judge” means 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(as inserted by section 44 of the Court of Appeal Act 2014), when exercising functions under that sub-section in respect of applications for leave to appeal;

“case management judge” means 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 when exercising functions under that sub-section in respect of proceedings in which leave to appeal has been granted;

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

the “decision” includes judgment, order, verdict, finding or determination;

“notice of application for leave” means a notice of application for leave to appeal to the Supreme Court, and “application for leave” shall, save where the context otherwise requires, be construed accordingly;

“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 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 or appeal;

“statutory practice direction” means a practice direction issued undersection 7(7) 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 for the time being prescribed or directed for use in proceedings in the Supreme Court.

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, applications for leave judge or (as the case may be) case management judge 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, 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 permission 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 permission 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 and word limits

4. (1) Subject to any relevant provision of statute and to sub-rule (2), an application to extend or shorten any time limit set by these Rules or time limit or word limit set by a statutory practice direction may be made—

      (a) to the Supreme Court,

      (b) in respect of proceedings up to the determination of an application for leave, to the applications for leave judge,

      (c) in respect of proceedings following the determination of an application for leave, the case management judge.

(2) An application to extend time to apply for leave to appeal or to lodge a respondent’s notice shall only be made to the Supreme Court.

(3) The Supreme Court or, as the case may be, the appropriate judge referred to in sub-rule (1) sitting alone, may exercise the powers to extend or shorten a time limit set by these Rules or a time limit or word limit set by a statutory practice direction either on an application by one or more parties or without an application being made.

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

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

(6) Where an extension of time for service of a notice of application for leave is granted, the time limits set by this Order for any steps consequential upon service of the notice of application for leave shall, without any order or direction for the purpose, be extended in proportion to the number of additional days granted for service of the application for leave.

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 requires or permits and

      (d) save in the case of a notice of application for leave or 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 or, where permitted by these Rules or a statutory practice direction, a certificate of service, shall include details of the persons served and 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 or filed 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 required or 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 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 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 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 application for leave or 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 to issue a document in accordance with sub-rule (1) may apply within 14 days of the refusal to the applications for leave judge, or to the case management judge or to the Supreme Court, as the context requires, to authorise the issue of the document concerned.


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 for the time being prescribed or directed.

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 application for leave and an attested copy of the order of the court below shall be lodged not later than 21 days from the perfecting of the order in respect of which leave to appeal is sought.

(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 applicant shall lodge with the Registrar an attested copy of the written judgment approved by the court below when notice of application for leave is lodged or otherwise promptly after it becomes available.

(4) Where a written judgment has not been given in the court below, in any application for leave to appeal in civil proceedings, the applicant 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 application for leave to appeal, a transcript of any ruling or direction of the Judge in the court below.

(5) In any application for leave in civil proceedings, the applicant shall, at his own expense, lodge with the Registrar a transcript of any oral evidence or such extracts of the transcript as are provided for by statutory practice direction 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 application for leave shall, save in the case of a notice of application for leave to appeal from a decision made otherwise than inter partes, be served on the same day on which the notice of application for leave has been lodged, on all parties directly affected by the application for leave 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 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 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 applicant shall produce to the Supreme Court or to the Registrar on request, proof of service of the application for leave on each respondent served.

V. NOTICE BY RESPONDENT

Lodgment and service of notice by respondent

18. (1) Each respondent served with a notice of application for leave shall, within six weeks from the perfecting of the order appealed against, lodge in the Office and serve on the applicant and every other respondent a notice in the form for the time being prescribed or directed for completion by a respondent (in this Order, “respondent's notice”).

(2) The respondent's notice may be lodged after the time permitted with the written consent of the applicant, where permitted by a statutory practice direction or by direction of the Supreme Court.

(3) A respondent who seeks to vary (i.e. put forward additional grounds on which the decision appealed should be affirmed) or who seeks to cross-appeal may do so in his or her respondent’s notice.

(4) When considering an application to vary the judgment appealed or a cross-appeal the Court may direct that a separate application for leave to appeal be completed or alternatively give such directions as are appropriate including that the applicant lodge a response in writing by letter addressed to the Registrar.

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


VI. APPLICATION FOR LEAVE BOOKLET

Lodgment of application for leave booklet

19. (1) The applicant shall, within seven weeks from the perfecting of the order in respect of which leave to appeal is sought (or such extended time as may have been granted in accordance with rule 4), lodge in the Office four copies of a booklet containing the following:

      (a) the notice of application for leave;

      (b) the respondent’s notice if lodged and served;

      (c) the order in respect of which leave to appeal is sought;

      (d) the approved judgment on foot of which that order was made;

      (e) any final order or orders of all other courts at lower instance in the proceedings;

      (f) any approved judgment or judgments of all other courts at lower instance in the proceedings;

      (g) a certificate of service, in the form prescribed by statutory practice direction, of the application for leave on all respondents served;

      (h) where the order from which leave to appeal is sought was made in criminal proceedings, the booklet shall additionally contain each of the following materials where the item is relevant to any issue raised in the application for leave to appeal:


        (i) a copy of the indictment;

        (ii) the transcript of the opening speech of counsel for the prosecution;

        (iii) where an appeal concerns a particular issue raised in the trial, the transcript of the evidence, submissions and ruling relevant to that issue;

        (iv) a copy of any relevant exhibit;

        (v) the transcript of the closing speeches of counsel for the prosecution and defence; and

        (vi) the transcript of the judge’s charge to the jury insofar as it relates to the issue or, where the duration of the trial was three days or less, the entire transcript.

(2) The applicant shall serve a copy of the application for leave booklet filed on the respondent within seven weeks from the perfecting of the order in respect of which leave to appeal is sought (or such extended time as may have been granted in accordance with rule 4)

(3) An applicant who cannot include a specified document or documents in the application for leave booklet may, instead of and pending inclusion of that document, not less than three days prior to the expiry of the period for lodgement of the application for leave booklet, lodge with the booklet and at the same time send to the respondent a communication by letter in writing or, where provided for in a statutory practice direction, a communication delivered electronically, addressed to the Registrar, explaining the difficulty encountered together with an account of the measures taken to attempt to comply with the requirement for inclusion of the document in the booklet.

(4) A communication referred to in sub-rule (2) shall be referred by the Registrar to the applications for leave judge for a determination as to whether or not the requirement for inclusion of the document may be dispensed with or varied, and where varied, as to the terms on which the requirement is varied.


VII. DETERMINATION OF APPLICATION FOR LEAVE TO APPEAL

Determination of application

20. (1) Where the Supreme Court requires the delivery of written submissions by the parties participating in an application for leave (or any other application for leave 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 determination 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 26 and any applicable statutory practice direction.

Notification of determination to parties

21. When the Supreme Court has determined an application for leave, 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

22. (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) the form of notice of appeal appended to the notice of application for leave, excluding any grounds of appeal on which leave to appeal was refused, stands as the notice of appeal;

      (c) the applicant shall, within seven 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 for the time being prescribed or directed 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 applicant 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 applicant 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.

23. (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 22(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

24. 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 22.


VIII. CASE MANAGEMENT

25. (1) Following the lodgment of notice of intention to proceed, unless the Supreme Court or, as the case may be, the case management judge sitting alone has otherwise directed, the Registrar shall list the appeal before the Supreme Court or, as the case may be, that judge sitting alone, on notice to the parties for a case management hearing.

(2) Unless the Supreme Court or, as the case may be, the case management judge sitting alone 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 a case management booklet, indexed and paginated, containing the documents prescribed by statutory practice direction.


IX. WRITTEN SUBMISSIONS AND APPEAL BOOKS

Written submissions and appeal books

26. (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 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.


X. 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 the form for the time being prescribed or directed 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.


XI. 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 for the time being prescribed or directed, 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.


XII. POWERS OF SUPREME COURT ON APPEAL

General

29. 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.