UK: Privy Council - Judicial Committee (Appellate Jurisdiction) Rules 2009

Last Updated: 21 January 2009
Article by David Miles

References are to the appropriate Rule/Practice Direction

Rules

Rule 1

Rules are to come in force on 2 March 2009, except for the use of new forms which shall come into force on 1 October 2009.

Rule 3

The new Rules shall apply so far as is practicable to Appeals and Applications filed before 2 March 2009.

Rule 11(2)

An application for permission to Appeal (the old Petition for Special Leave) must be filed within 28 days "from the date of the Order or Decision of the Court below or the date of the Court below refusing permission to Appeal (if later)".

Rule 13

Each Respondent who wishes to object to the application must within 14 days after service, file Notice of Objection.

Rule 15(1)

Every application shall be considered on paper without a hearing by the Judicial Committee.

The Judicial Committee may direct an oral hearing.

Rule 18(2)

Notice of Appeal must be filed "within 56 days of the date of the Order or Decision of the Court below or the date of the Order or Decision of that Court granting permission to Appeal (if later)".

Rule 19(2)

Before Notice is filed, a copy must be served on the Appellant and any Respondent.

Rule 21(1)

The Appellant must prepare and file a Statement of the Relevant Facts and Issues within 42 days after the filing of the Notice.

Rule 23

This now provides for sequential filing of cases, the Appellant 5 weeks before the hearing, the Respondent 3 weeks before the hearing.

Rule 25

A Respondent who wishes to argue that the Order appealed from should be upheld on grounds different from those relied on by the Court below must state that clearly in his written case (but need not cross-Appeal).

Rule 25(2)

A Respondent who wishes to argue that the Order appealed from should be varied must obtain permission to cross-Appeal either from the Court below or from the Judicial Committee.

Rule 27

A person claiming to have an interest in an Appeal may apply for permission to intervene.

Rule 37

Where the Judicial Committee grants permission to Appeal, an Order for Security for Costs may be made by the Judicial Committee or by the Registrar. Where permission to Appeal has been granted by the Court below, Security for Costs of the Appeal shall be a matter for that Court.

Rule 39

Any Appellant who wishes to obtain a stay of execution pending an Appeal must seek it from the Court below in the first instance.

Rule 43

Orders for Costs will not normally be made either in favour of or against Interveners.

Practice Directions

PD2

2.1.7 A document may be filed by first class post, through a document exchange or (with consent of the Registrar) by electronic means.

2.1.8 The contents of documents filed in a hard copy must also be provided to the Registry by electronic means (and vice versa).

2.1.12 The 28 day period for permission to Appeal runs from the date of the substantive Order appealed from, not from the date on which the Order is sealed or the date of any subsequent procedural Order (eg an Order refusing permission to Appeal).

2.1.26 An Agent who files an application for permission to Appeal "must be familiar with the subject matter". This seems to amend the necessity for the application to be supported by Affidavit.

PD3

3.2.3 Where the required papers for permission to Appeal are not filed within 8 weeks after the filing of the application, the Registrar may refer the application to an Appeal Panel without the required papers or dismiss the Appeal.

3.3.3 Permission to Appeal is granted for applications that, in the opinion of the Appeal Panel raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time. An application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground. The Appeal Panel gives brief reasons for refusing permission to Appeal.

3.3.14 Where an application is referred for an oral hearing only Junior Counsel's fee is allowed on assessment.

PD4

4.1.1 The application for permission to Appeal will stand as the Notice of Appeal and the Grounds of Appeal are limited to those on which permission has been granted.

4.2.2 If the Appellant asks the Judicial Committee to depart from one of its own Decisions or one made by the Supreme Court or the House of Lords, this should be clearly stated in the Notice of Appeal.

4.3.1 A Notice of Appeal must be filed in the Registry within 56 days of the date of the Order or Decision of the Court below.

 

4.3.2 If the Order is not immediately available, the Notice of Appeal should be filed without delay and the Order filed as soon as it is available.

4.7.1 Orders for Security for Costs will be "sparingly made".

4.7.2 No Security for Costs is required in cross-Appeals.

PD5

5.1.2 Except in cases where the Record is small (100 pages or less), reproduced Records should be double-sided ie printed on both sides of the paper.

5.1.3 All volumes of papers for use in hearings should be not more than approximately 1 inch (2.5 centimetres) thick and preferably comb-bound.

5.1.6 This Direction applies to Records reproduced overseas.

5.1.7 The Statement of Facts and Issues should 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.

5.1.8 All documents which are not in English must be accompanied by a translation into English. Every translation must be accompanied by a statement by the person making it that it is a correct translation and that statement must include the name of the person making the translation, his address and qualifications for making a translation.

5.2.1 The Statement of Facts and Issues must be filed by the Appellant within 42 days after the filing of the Notice.

PD6

6.2.2 Estimates of more than 1 day (for the hearing) must be fully explained in writing to the Registrar.

6.3.1 The Case should be a concise summary of the submission to be developed not a full speaking note.

6.3.2 he Case should be confined to the heads of argument that Counsel proposes to submit at the hearing and omit material contained in the Statement of Facts and Issues.

6.3.3 If a party is abandoning any point taken in the Courts below, this should be made plain in their case. If they intend to apply for permission to introduce a new point not taken below, this should also be indicated in their Case and the Registrar informed. If such a point involves the introduction of fresh evidence, application for permission must be made either in the Case or by filing an application for permission to adduce the fresh evidence.

6.3.4 If a party intends to invite the Judicial Committee to depart from one of its own Decisions or from a Decision of the Supreme Court or the House of Lords, its intention must be clearly stated in a separate paragraph of the Case to which special attention must be drawn.

6.3.5 All Cases must conclude with a numbered summary of the reasons upon which the argument is founded and must bear the signature of at least 1 Counsel who has appeared in the Court below or who will be briefed for the hearing before the Judicial Committee.

6.3.6 The filing of a Case carries the right to be heard by 2 Counsel.

6.3.13 Cases must be produced on A4 paper, securely bound on the left, using both sides of the paper with:-

  1. numbered paragraphs;
  2. signatures of Counsel at the end above their printed names.

6.4.1 Authorities' bundles must be filed on memory sticks as well as in hard copy. The Authorities' volumes should have a separate Index and Authorities should appear in alphabetical order. Authorities should be divided into those which are referred to in the parties' Cases and those which may be referred to at the Hearing. The Authorities' volumes should:-

  1. be A4 size;
  2. separate each Authority by numbered dividers.

6.5.2 Parties should inform the Registry as early as possible of the names of Counsel.

6.5.6 An official law reporter will be present at every Appeal hearing. If both or either of the parties wish to obtain a full transcript of the hearing, they must notify the Registrar not less than 7 days' before the hearing.

6.5.7 Counsel should assume that the Court will have read the printed cases and the Judgment under Appeal but not all the papers which have been filed.

6.6.1 If a party wishes to defer making submissions as to costs until after Judgment the Committee must be informed of this not later than at the close of oral argument. If the Committee accedes to this request, it will give Directions.

6.7.2 One Junior Counsel for each party may attend when Judgment is delivered but Counsel are not expected to attend and Counsel's fees are not allowed on assessment.

6.8.3 Applications for permission to intervene should be filed at least 6 weeks before the date of the hearing of the Appeal.

PD7

7.2.3 Number of Documents

Document

For Registry

For Other Side

Notice of Appeal

Original and 7 copies

Two on service

Statement of Facts and Issues

Original and 7 copies

As arranged

Case

Original and 7 copies no later than 5 weeks before hearing

As arranged on exchange

 

 

Documents held in readiness at hearing (if any)

10

At least 3



7.5.1 The filing of an Appeal does not entitle a Respondent to an Appeal to file a cross-Appeal, permission to Appeal is required.

7.5.6 The original Appellant/cross-Respondents may reply to the Case with a cross-Appeal in their Supplementary Case.

7.11.1 If, after the conclusion of the argument on Appeal, a party wishes to bring to the notice of the Judicial Committee new circumstances which have arisen and which might affect the Decision or Order of the Judicial Committee, application must be made without delay by letter to the Registrar for permission to make new submissions. The application should indicate the circumstances and the submission it is desired to make. A copy must be sent to the Agents for the parties to the Appeal.

7.16.3 An Appeal that has not been listed for hearing may be withdrawn by writing to the Registrar. The nature of the agreement should be indicated.

7.16.4 An Appeal that has been listed for hearing may only be withdrawn by Order of the Judicial Committee on application.

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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