UK: Appeals To The Supreme Court – The Applicable Procedure Once Permission Has Been Granted

Last Updated: 9 August 2011
Article by Jamila Khan, Carrie Angell and Catherine Earnshaw

Introduction

This article is the second part of a two-part piece on the procedure when making an appeal to the Supreme Court. The first article covered the procedure in making the initial application for permission to appeal and was published on 12 May 2011. This second article provides an overview of the procedure to be followed once permission to appeal has been granted by the Supreme Court.

From our experience in the Oceanbulk Shipping & Trading SA v TMT Asia Limited & others [2010] UKSC 44, Rainy Sky S.A. and others v Kookmin Bank (judgment pending) and other appeals, the Supreme Court usually takes four to six weeks to determine an application for permission to appeal. It can be longer, however, particularly if the application is made during or just before one of the Court vacations.

Immediate steps once permission has been granted

Timings: If permission is granted, Supreme Court Rule 18 (and Practice Direction 4, paragraph 4.1.1) provides that the Appellant must, within 14 days of the grant by the Court of permission to appeal, file notice of an intention to proceed with the appeal.

Proceeding with the appeal: This is simply a letter indicating that the Appellant wishes to proceed with the appeal. The letter is sent to the Supreme Court, together with the sealed original copy of the application for permission to appeal, which will now stand as the Notice of Appeal. A second fee (currently £800) must also be paid on filing the Notice of Appeal.

Practice Direction 4, paragraph 4.1.1 provides that the Appellant must re-file the original Notice plus three copies at Court, but it should be noted that the Court may specify a different number of copies to be filed when it advises whether leave to appeal has been granted, depending on the number of Supreme Court Justices listed to hear the Appeal. In general, five judges will hear an appeal, but appeals can also be heard by panels of seven, nine and even eleven judges.

The Supreme Court will then re-seal the Notice of Appeal with a second seal and send the parties a "next steps" letter setting out the procedure and deadlines to be met by the parties. Once the Appellant has the re-sealed copy of the Notice from the Court it must be served on the other side and re-filed at Court together with a certificate of service. Another Form 1 can be completed with the certificate of service part completed or parties can simply create a certificate of service on one page setting out the service details.

Respondent's steps: The Respondent has 14 days from the date of service of the re-sealed notice to file and serve a Notice of Acknowledgement, using Form 3, stating that it intends to participate in the appeal.

Timetable: It is then for the parties to agree a timetable for the filing of the agreed Statement of Facts and Issues and Appendix, the Appellant's written case and the Respondent's written case. A copy of the timetable should be provided to the Supreme Court, once agreed. The Supreme Court will provide a deadline for the filing of the Core Volumes and Authorities but it is open to the parties to specify an earlier date.

Statement of Facts and Issues and Appendix (PD5)

Format of Statement: The Statement must be a single document, drafted initially by the Appellant but "submitted to, and agreed with, every Respondent before being filed" (Rule 22.2).

Contents of Statement: The Statement must set out the relevant facts and, if the parties cannot agree as to any matter, the Statement should make clear what items are disputed. The Statement should also contain references to every law report of the proceedings below, and should state the duration of the proceedings below. It should be signed by counsel for all parties (Practice Direction 5.1.3).

The amendments to the Supreme Court Practice Directions, which came into force on 22 March 2011, provide in the new Practice Direction 5 that it is useful for the Statement of Facts and Issues to contain a chronology with a list of the key dates. This should be set out in an annex and include cross-references to the page numbers of any relevant documents in the appendix.

Contents of Appendix: The Appendix should contain only such material as is necessary for understanding the legal issues and the argument to be presented to the Supreme Court. Practice Direction 5.1.5 provides detail on the documents which must be included in the Appendix and the order in which they must appear.

The Appendix should not contain documents which were not in evidence below. If necessary, the Appendix should be prepared in several parts, with only the most essential documents being included in Part 1 (only Part 1 will be included in the core volumes). Again, the Appendix must be submitted to, and agreed with, every Respondent before being filed (Rule 22(2)). All documents should be numbered and each part of the Appendix must include a list of contents.

Filing of Statement: The Statement of Facts and Issues and the Appendix must be filed by the Appellant within 112 days after the filing of the Notice of Appeal (Rule 22(1)) (or by the date as agreed by the parties if before this).

Copies required: When the Statement and Appendix are ready, Practice Direction 5.2.6 provides that:

  • the original and seven copies of the Statement
  • eight copies of Part 1 of the Appendix
  • ten copies of Part 2 etc (if any)

must be filed at the Registry together with the prescribed fee. As before, the number of copies may differ depending on the number of judges hearing the case. If a different number is required, the Registry will notify the parties.

Fees: At present, the prescribed fee to be paid with the Statement of Facts and Issues is £4,820 (Supreme Court Fees Order 2009).

Next steps: Practice Direction 5.2.7 provides that within seven days after filing the Statement and Appendix, the parties must comply with rule 22(3) by notifying the Registrar that the Appeal is ready to list and providing a time estimate (unless the Appeal has already been listed, which is possible, prior to this date).

Appellant's and Respondent's Cases (Practice Direction 6.3)

The written cases are the statements of the parties' arguments in the appeal. The written cases should be concise summaries of the submissions to be developed.

Contents of cases: The written case should be confined to the heads of argument that counsel propose to submit at the hearing and omit material contained in the Statement of Facts and Issues. Practice Direction 6, paragraphs 6.3.1 -6.3.7 deal with the specific points in relation to the content of the written case.

Timings: The rules provide that no later than five weeks before the proposed date of the hearing, the Appellants must file at the Registry the original and seven copies of their case and serve it on the Respondents and then no later than three weeks before the proposed date of the hearing, the Respondents must serve on the Appellants a copy of their case in response and file at the Registry the original and seven copies of their case. These dates may be earlier if the parties have so agreed.

Practice Direction 6.3.13 details the format the Cases should take.

The Core Volumes and Authorities Volumes (Practice Direction 6.4)

The Core Volumes and Authorities are the final documents which must be provided to the Supreme Court prior to the Appeal being heard.

Timing: The Appellant should file the Core Volumes not later than 14 days before the date fixed for the hearing.

Format of documents: The Rules provide that ten copies of the bound core volumes must be filed at the Supreme Court. Practice Direction 6.4.3 provides details of the content of the Core Volumes and Practice Direction 6.4.4 states the form the Volumes must take. Essentially, they must be spiral bound and include tabs separating each document and a list of contents for the documents included. There are also requirements in relation to marking up the side of the bound bundles for ease of reference for the Judges in the hearing.

Filing of documents: Ten copies of authorities must also be filed at the same time as the Core Volumes. Practice Direction 6, paragraphs 6.5.1 – 6.5.8 detail the form and content of the Authorities Volumes and the Supreme Court requires the authorities to be divided into the categories: domestic, Strasbourg, foreign and academic material, as appropriate. It is important to note the additional provisions at paragraphs 6.5.2, 6.5.3, 6.5.4 and 6.5.5 of Practice Direction 6 which came into force on 22 March 2011.

Costs: The cost of preparing the Core Volumes and the Volumes of Authorities falls to the Appellants, but it is ultimately subject to the decision of the Court as to the costs of the appeal.

The amended Practice Direction 14 should be kept in mind when preparing all the documents for the Appeal as this provides for the filing of documents by electronic means.

This article (and our previous article covering procedure leading up to permission to appeal) provides an outline of the procedure which parties should follow in appealing to the Supreme Court, based on our experience. For the exact requirements and procedure, parties should consult the Supreme Court Rules and Practice Directions. In addition, we found the Supreme Court Registry to be very willing to provide guidance to parties.

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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.