UK: Appeals To The UK Supreme Court – Applying For Leave To Appeal

Last Updated: 12 May 2011
Article by Will Marshall, Carrie Angell and Catherine Earnshaw

Introduction

Last year, we made Ince & Co's first application for leave to appeal to the Supreme Court of England and Wales on behalf of TMT Asia Limited. This followed the first instance judgment in our client's favour in Oceanbulk Shipping & Trading SA v TMT Asia Limited & others being overturned by the Court of Appeal. We were given permission to appeal to the Supreme Court and judgment was handed down in October 2010 ([2010] UKSC 44). The Supreme Court unanimously overturned the Court of Appeal's decision in our client's favour. Our detailed article on this decision can be found on our website at www.incelaw.com.

As the Supreme Court only replaced the Appellate Committee of the House of Lords as the Highest Court in the United Kingdom on 1 October 2009, the Supreme Court Rules and Practice Directions 2009 which govern the procedure are still being tested. The Rules and Practice Direction are available from the Supreme Court website. This article sets out in general terms the procedure for making an application for permission to appeal to the Supreme Court. A future article by ourselves will provide an overview of the procedure for appealing to the Supreme Court once leave to appeal has been granted.

Initial Application for leave to appeal

Court forms: The relevant court forms can be found on the Supreme Court website and Annex 1 to Practice Direction 7 contains the Form 1 Application.

Where to make the application: An application for permission to appeal must first be made to the court below and an application may be made to the Supreme Court only after the court below has refused to grant the party permission to appeal.

Time to make the application: The application must be filed within 28 days from the date of the order or decision of the court below which is to be appealed. Consequently, it is important to act promptly when deciding whether to apply for permission to appeal.

Contents of application: The application should set out briefly the facts and points of law and include a summary of the reasons why permission should be granted. A chronology of the proceedings is also required within the application.

Length of grounds of appeal: Since we made our application, the Supreme Court has made some changes to the relevant Practice Direction. These changes came into force on 22 March 2011. One additional provision to Practice Direction 3 is that the grounds of appeal in the application for permission should not normally exceed 10 pages of A4 size. The Registrar will reject any application where the grounds appear, without adequate explanation from counsel, to be excessive in length.

Format of documents: The Rules are quite specific in their requirements for the format in which documents must be provided to the Court. Documents must be:

  • on A4 paper,
  • securely bound on the left,
  • printed on both sides of the page,
  • properly labelled and indexed.

Filing of documents: Documents must be filed both in hard copy and electronically.

Service of application: Before the application is filed, a copy must be served on every Respondent in the case and when the application is filed at the Supreme Court, the Appellant must also file:

  • a further three copies of the application;
  • a copy of the order appealed against;
  • a copy of the order below refusing permission to appeal (this may be contained in the order appealed against);
  • the prescribed fee (which is currently £800); and
  • a certificate of service (contained in Form 1, section 8).

Binding precedent: Finally, the Supreme Court has also made an express reference in the amendment to Practice Direction 3 to the House of Lords' Practice Statement of 26 July 1966, stating that it still applies. This Statement provides that the House of Lords (now the Supreme Court) will, in general, treat former decisions of the House as binding, but will depart from a previous decision when it appears right to do so.

Additional papers

The next stage in the procedure is to file additional papers within 7 days of filing the application for use by the Appeal Panel in deciding the application. The additional papers include:

  • the official transcript of the judgment of the court below;
  • final orders of all the other courts below;
  • any unreported judgment(s) cited in the application or judgment of a court below; and
  • a document which sets out the history of the proceedings

Notice of objection

The Respondent then has 14 days after service of the application to file a notice of objection in the appropriate form together with a certificate of service. Before the notice is filed, a copy must be served on the Appellant. A Respondent who does not file a notice of objection under this rule will not be permitted to participate in the application.

Once the Respondent has filed his notice of objection, the Appeal Panel will then review the arguments from both sides and make a decision, on paper, whether or not to grant permission to appeal. Rule 17 does make provision for an oral hearing of the application but, in our experience, this is rare.

Flowchart of key steps

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions