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I. Powers of Court of Appeal on civil appeals

Application of this Order

1. This Order applies only to appeals to the Court of Appeal in civil proceedings.

General

2. (1) Subject to the provisions of the Constitution and of statute:

(a) the Court of Appeal has on any appeal in civil proceedings and may exercise or perform all the powers and duties of the court below,

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

(2) The powers of the Court of Appeal may be exercised by the Court of Appeal, notwithstanding that the notice of appeal asks that part only of the decision of the court below be reversed or varied, and those powers may also be exercised in favour of all or any of the respondents or parties, although particular respondents or parties may not have appealed from or complained of the decision.

(3) The failure to give adequate notice of a matter in a notice of appeal does not remove or reduce the power of the Court of Appeal to consider and deal with the matter in question, but the Court of Appeal may, in its discretion, adjourn an appeal or (where it is satisfied that the other party is not prejudiced in its conduct of the appeal by the insufficient notice) make a special order as to costs where it considers that inadequate notice of a matter has been given.

Power to remit or direct new trial

3.  (1) Following the hearing of an appeal, the Court of Appeal may remit proceedings to the High Court with such directions as it considers just.

(2) If on the hearing of an appeal, it appears to the Court of Appeal that a new trial ought to be had, it may set aside the original decision or order and direct a new trial, which may be confined to a particular question or issue, without interfering with the original finding or decision on any other question or issue.

Powers as to evidence

4. Subject to the provisions of the Constitution and of statute:

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

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

(e) if the Court of Appeal 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 Court of Appeal deems expedient,

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

II.  Application for leave to appeal or appeal does not operate as a stay unless ordered

Appeal not to operate as a stay

5.  (1) An appeal (or, where required by law, an application for leave to appeal) to the Court of Appeal does not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the High Court orders or, such order having been refused by the High Court, so far as the Court of Appeal orders.

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

III. Applications for leave to appeal

Conduct of applications for leave to appeal

6.  (1) Where under statute leave to appeal to the Court of Appeal is required to be sought, application for such leave shall be brought by notice of application (in this rule called the “application for leave to appeal”) in the Form No 2, which shall include the grounds on which leave to appeal is sought and, where relevant, the reasons why it is alleged that the conditions for leave to appeal are satisfied, and to which shall be appended a draft of the proposed notice of appeal.  A return date before the Court of Appeal shall be assigned to every application for leave to appeal issued under this rule.

(2) Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, where under any enactment leave to appeal to the Court of Appeal may be sought in the court below or in the Court of Appeal, any application seeking leave to appeal may be made to the Court of Appeal only after the court below has refused to grant leave to appeal.

(3) 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 application for leave to 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 of the court below against which leave to appeal is sought.

(4) A copy of the application for leave to appeal (and appended draft notice of appeal) shall be served not later than 14 days before the return date of the application for leave to appeal, on all parties directly affected by the application.

(5) The moving party shall lodge an affidavit of service of the application for leave to appeal on each respondent served.

(6) 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, but the Court of Appeal may direct notice of the application for leave to appeal to be served on all or any of the parties to the proceedings in the court below, or on any other person.

(7) A person served with an application for leave to appeal who intends to oppose the application shall lodge in the Office and serve on the moving party and each other person served with the application for leave to appeal a statement of that person’s grounds of objection to the application for leave to appeal in the Form No 3, not later than seven days before the return date of the application for leave to appeal.

(8) On the return date of the application for leave to appeal, (or on any adjournment of such hearing), the Court of Appeal may give such directions and make such orders, including the fixing of time limits, for the conduct of the application as appear convenient for the determination of the application in a manner which is consistent with the requirements of Order 86, rule 2, which may include:

(a) directions as to the service of the application for leave to appeal on any other person including mode of service and the time allowed for such service (and may for that purpose adjourn the hearing (or further hearing) or determination of the motion to a date specified);

(b) directions as to the filing and delivery of any affidavit by any party or parties;

(c) directions as to the filing and delivery of written submissions.

(9) An order granting leave to appeal:

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

(b) shall fix a time within which the notice of appeal is to be issued and served, and

(c) shall fix a date for the directions hearing on the appeal.

(10) When the Court of Appeal has determined an application for leave to appeal, the Registrar shall notify the parties of the determination.

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V.  Ordinary appeals

Notice of appeal

12. ^[4] An appeal to the Court of Appeal shall be brought by the lodgment in the Office for issue of a notice (in this Order called the “notice of appeal”) in the Form No 6, which shall set out:

(i) particulars of the decision that it is sought to appeal;

(ii) the grounds of the appeal;

(iii) the orders sought from the Court of Appeal;

(iv) a list of the documents intended to be relied on by the appellant in the appeal, and

(v) particulars of the appellant and of the respondent.

Lodgment of notice of appeal

13. (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 shall be lodged for issue 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) 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.

(3) Where a written judgment has not been given in the court below, 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 Judge of the court below, and

(ii) where, and then to the extent, necessary for the proper determination of the appeal, a transcript of any relevant ruling or direction of the Judge in the court below certified as accurate by the transcript writer and authenticated by the Judge of the court below.

(4) The notice of appeal shall include a list of all of the documents on which the appellant intends to rely at the hearing of the appeal.

(5) A return date for a directions hearing shall be assigned to every notice of appeal issued under this rule.

Service of notice of appeal

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

(2) It is not necessary to serve parties to the proceedings in the court below who are not directly affected by the appeal, but the Court of Appeal 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) The appellant shall lodge an affidavit of service of the notice of appeal on each respondent served.

Respondent’s notice

15. (1) Each respondent served with a notice of appeal shall, within 21 days after service on him of the notice of appeal, lodge in the Office and serve on the appellant and every other respondent a notice in the Form No 7 (in this rule, the “respondent’s notice”), which:

(a) shall state if that respondent opposes the appeal, in whole or in part and, if so, sets out concisely the grounds on which the appeal is opposed;

(b) if that respondent intends, on the hearing of the 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, sets out a concise statement of the additional grounds on which it is alleged the judgment or order appealed from should be affirmed;

(c) if that respondent intends, on the hearing of the appeal, to contend that the judgment or order appealed from should be varied, shall include a separate section entitled “notice of cross-appeal”, which sets out a concise statement of the grounds on which it is alleged the judgment or order appealed from should be varied;

(d) shall set out the orders sought from the Court of Appeal, and

(e) shall include a list of any additional documents not identified in the notice of appeal on which that respondent intends to rely at the hearing of the appeal.

(2) 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 the notice of appeal.

VI. Directions hearing applicable to all civil appeals

Directions hearing

16. (1) Unless otherwise directed, the appellant shall lodge in the Office not later than four days before the date fixed for the directions hearing an indexed and paginated directions booklet for the use of the Court of Appeal, comprising copies of:

(a) the judgment and/or order appealed from;

(b) ^[5] the notice of appeal;

(c) every respondent’s notice delivered, and

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

(2) The directions hearing shall be attended by the solicitor responsible for the conduct of the appeal and by a counsel instructed in the appeal, if such be the case.  Where a party, not being a body corporate, is not represented by counsel or a solicitor, the directions hearing shall be attended by the party himself.  Where the Court of Appeal considers it necessary or desirable, it may direct that a party, or, where the party is a body corporate, the proper officer of that party, attend the directions hearing, notwithstanding the fact that the party may be represented by counsel or a solicitor.

(3) Each counsel and solicitor attending the directions hearing shall ensure that he is sufficiently familiar with the proceedings, and has authority from the party he represents to deal with any matters that are likely to be dealt with at the directions hearing.

(4) Without prejudice to the generality of Order 86, rule 3, the Court of Appeal may, at the directions hearing, give any of the following directions:

(i)  fixing any issues to be determined in the appeal;

(ii) for the consolidation of the appeal with another appeal or matter pending in the Court of Appeal;

(iii) for the defining of issues by the parties, or any of them, including the exchange between the parties of memoranda for the purpose of clarifying issues;

(iv) allowing any party to alter or amend his notice, or allowing amendment of a statement of issues;

(v) requiring the filing of lists of documents, either generally or with respect to specific matters;

(vi) providing for the exchange of documents or information between the parties, or for the transmission by the parties to the Registrar of documents or information electronically on such terms and subject to such conditions and exceptions as the Court of Appeal may direct;

(vii) providing for the documents to be included in the appeal booklet to be filed in accordance with rule 17;

(viii) fixing the times at which written submissions on the appeal, or on an issue in the appeal, identifying and addressing the issues arising in the appeal, are to be delivered and filed by each party to the appeal, and such written submissions shall be filed electronically where directed by the Registrar.

(5) Where the directions hearing is adjourned, the appellant shall, where necessary, lodge in the Office not later than four days before the date to which the directions hearing is adjourned an updated directions booklet for the use of the Court of Appeal.

(6) At the directions hearing:

(a) in the case of an ordinary appeal, the Court of Appeal may, or

(b) in the case of an expedited appeal, the Court of Appeal shall, unless for special reason it considers that it is not possible to do so, fix a date and allocate a time for the hearing of the appeal.

Appeal booklet and papers

17. (1) Subject to any statutory practice direction and the terms of any order made at the directions hearing, the appellant shall, not later than 14 days before the date fixed for the hearing of the appeal, lodge with the Registrar in triplicate and serve on each respondent affected by the appeal an indexed and paginated appeal book (in this Part called the “appeal booklet”) comprising:

(a) ^[6] a copy of the notice of appeal;

(b) a copy of the respondent’s notice;

(c) where the appeal is in proceedings commenced by plenary summons, copies of the summons, any statement of claim, and defence and any requests for and replies to particulars, in chronological sequence;

(d) where the appeal is in any other proceedings, copies of the originating document and any document in the nature of a defence or statement of opposition;

(e) copies of each affidavit (including all exhibits) relied on or opened in the court below at the hearing at or following which the decision appealed from was made, set out in chronological sequence;

(f)  an attested copy of the order of the court below from which the appeal is made and attested copies of any further or other order of the court below relevant to the appeal;

(g) where a written judgment was given in the court below containing the decision appealed from, an attested copy of the written judgment approved by the court below;

(h) where a written judgment has not been given in the court below, a transcript of any oral judgment of the court below concerning the matter appealed from, certified as accurate by the person responsible for preparing the transcript and authenticated by the Judge of the court below;

(i)  where, and then only to the extent, necessary for the proper determination of the appeal, a transcript of

(i)  any ruling or direction of the Judge in the court below concerning the matter appealed from and

(ii) the extracts from the record of the proceedings in the court below containing any oral evidence received in the court below relevant to the appeal, certified as accurate by the transcript writer;

(j)  the written submissions, identifying and addressing the issues arising in the appeal, of each party, and

(k) copies of the documents relied on by each party as specified in the notice of appeal and the respondent’s notice respectively, provided that where an extract only of any document, including any transcript is relied on, it shall be sufficient to include only such extract.

(2) The appellant shall lodge with the appeal booklet a single copy of the entire transcript of the evidence given in the court below.  The transcript shall be lodged electronically where directed by the Registrar.

(3) The appellant shall hand into court at the hearing of the appeal three copies of an agreed indexed book of the authorities relied on by all of the parties.

Further directions hearing

18. ^[7] The Registrar may at any time list an appeal before the Court of Appeal on notice to the parties for the giving of such directions or the making of such orders for the conduct of the proceedings as the Court of Appeal considers appropriate in the circumstances.

VII. Electoral appeals

Particular provisions concerning electoral appeals

19. (1) The provisions of this rule apply to appeals to the Court of Appeal on questions of law

(a) from the Circuit Court under the Local Elections (Petitions and Disqualifications) Act 1974, and

(b) from the High Court under the Seanad Electoral (University Members) Act 1937 as amended, the Seanad Electoral (Panel Members) Act 1947 as amended, the Electoral Act 1992, the Presidential Elections Act 1993, and the European Parliament Elections Act 1997.

(2) Every appeal under sub-rule (1)(a) shall be by notice of appeal in the form, if any, for the time being prescribed in the Circuit Court Rules and otherwise in accordance with Part V.

(3) Every appeal under sub-rule (1)(b) shall be by notice of appeal in accordance with Part V.

(4) A return date for a directions hearing shall be assigned to every notice of appeal issued under this rule.

(5) Every notice of appeal referred to in this rule shall be served within 28 days from the date on which the judgment or order appealed from was pronounced in open court and shall be lodged with the Registrar forthwith.

(6) In the case of an appeal under sub-rule (1)(a), the Registrar shall apply to the County Registrar for such documents as are lodged in the Circuit Court for the purposes of the appeal.

(7) The transcript writer shall furnish a transcript of the whole of the proceedings at the trial or of such part of the proceedings as the Registrar requires.  The transcript shall be certified by the transcript writer to be a complete and correct transcript of the whole of the record, or of the part required.  In the absence of a transcript, the County Registrar shall furnish to the Registrar a signed copy of the note made by the Judge of the Circuit Court of any question of law raised before him and of the facts in evidence in relation to that question, and of his decision on that question and on the question or matter submitted to him.  Such documents, transcript or note shall be supplied for the use of the Court of Appeal and may be used and received at the hearing of the appeal.

(8) The Registrar shall also apply to the County Registrar for the transmission to his office for the use of the Court of Appeal of a file of all documents and papers relating to the case.

(9) If a report, or a note as is mentioned in sub-rule (7), cannot be produced, the Court of Appeal may hear and determine the appeal on any other evidence or statement of what occurred before the Judge of the Circuit Court which the Court of Appeal deems sufficient.

(10) In the case of an appeal under sub-rule (1)(b), the appellant shall lodge with the Registrar an attested copy of the judgment or order of the High Court appealed from and the appeal books referred to in rule 17.  If no transcript of the proceedings before the High Court is lodged, the appropriate Registrar of the High Court shall furnish to the Registrar a signed copy of the note made by the High Court Judge of any question of law raised before him and of the facts and evidence relating to that question and of his decision on that question and on the question or matters submitted to him.  Such copies shall be supplied for the use of the Court of Appeal and may be used and received at the hearing of the appeal.

(11) The Registrar shall also apply to the appropriate High Court Registrar for the transmission to him for the use of the Court of Appeal of a file of all documents and papers relating to the case.

(12) If a note as is mentioned in sub-rule (10) cannot be produced, the Court of Appeal may hear and determine the appeal on any other evidence or statement of what occurred before the High Court Judge which the Court of Appeal deems sufficient.

(13) The Registrar shall give notice of the order made by the Court of Appeal finally determining any appeal in the Form No 8, to each of the persons specified in section 14(3) of the Act of 1974 in the case of an appeal under sub-rule (1)(a), or to each of the persons entitled under Order 97, rule 21(1) to receive a copy of the final order of the High Court in the case of an appeal under sub-rule (1)(b).

(14) This rule applies, so far as practicable, and with such modifications as may be necessary, to all appeals under the Electoral Acts.

VIII. Settlement, withdrawal or concession of appeals

Determination of appeals by settlement, abandonment, etc

20. (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 Court of Appeal, 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 a party notifies each other party concerned and the Registrar in writing of his intention to withdraw or concede the appeal:

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

IX. Interest

Additional interest allowed without special order

21.^[8] On an appeal to the Court of Appeal, interest for such time as execution has been delayed by the appeal is deemed to be allowed, unless the Court of Appeal otherwise orders. The Legal Costs Adjudicator or other proper officer may compute the additional amount of interest without any order for that purpose.