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


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.

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