heres what you need to know By Gerard St C Farara QC Senior Partner Farara Kerins Issues facing the Court of Appeal The Court of Appeal continues to face tremendous strain and unnecessary backlog of cases as a result of ID: 132221 Download Presentation
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Before you appeal, here’s what you need to know…
By Gerard St. C. Farara, QCSenior Partner, Farara KerinsSlide2
Issues facing the Court of Appeal
The Court of Appeal continues to face tremendous strain and unnecessary backlog of cases as a result of a variety of factors including administrative issues in each jurisdiction and practitioners’ failure to comply with the Civil Procedure Rules and the Practice
This failure often stems from counsel’s lack of understanding of or regard for the
Rules and Practice Directions on Appeals which often leads to a proliferation of applications for strike out, extension of time, relief from sanction and adjournments. It unnecessarily burdens the Court’s resources and clogs the Court’s calendar.
In order for the Court of Appeal to operate as an efficient, well-oiled machine, practitioners must do their part by being diligent in complying with the Rules and Practice Directions.Slide3
The Relevant Legislation, Rules
and Practice Directions with which you must be thoroughly familiar are:Slide4
The main focus of this presentation will be on Civil Appeals. However, it is important to note that appeals in
matrimonial proceedings and insolvency proceedings are now governed by Part 62 of the CPR by virtue of recent amendments to Rule 2.2(3)(e)
Appeals may be either summary, interlocutory or other appealsSlide5
FIRST THINGS FIRST!
Should the Client Appeal?
Thoroughly assess the merits of the proposed appeal before filing.
Am I appealing against findings of facts or law and what are the CA’s powers in relation to disturbing each?
Conduct the necessary legal research before filing.Slide6
Is your Appeal from an Order or Judgment that is
and do you need
LEAVE TO APPEAL
This unfortunately is where many practitioners stumble before getting out of the blocks.
LEAVE TO APPEALSlide7
Section 30(4) of Cap 80 provides that save in limited cases no appeal shall lie without leave of the court from an interlocutory order or
Cases where the liberty
custody of infants is concerned;Where an injunction or appointment of a receiver is granted or refusedDecree nisi in matrimonial proceedingsAn
Order in Admiralty action determining liabilitySection 30(2) – No appeal shall lie and 30(3) where leave is also requiredSlide8
In Antigua Commercial Bank v Louise Martin the CA held that where leave is required to appeal, a Notice of Appeal filed without leave is a nullity.Slide9
In McDonna v Richardson, Barrow JA noted further that where the Notice of Appeal was deemed a nullity, the Appellant was debarred from proceeding with the appeal and could not rely on the discretion of the Court under Rule 26.8 to grant relief from sanctions as “a nullity cannot be cured or retrospectively validated.”Slide10
Leave to AppealThe following cases are also useful:
Nevis Island Administration v La Copproprete du
(St. Kitts and Nevis); and Pirate Cove Resorts Limited v Euphemia Stephens (St. Vincent and the Grenadines)
*There is a plethora of cases on the point.Slide11
Leave to Appeal
In the Pirate Cove Resorts case, the Intended Appellant recognizing his error in failing to apply for leave to appeal sought to orally request leave in his arguments at the hearing of the Respondent’s application to strike out the Notice of Appeal as a nullity.
Chief Justice Byron responded at paragraph 13 of the judgment that no evidence had been put before it to determine the extent of the delay, the reason for the delay, the chance of success and the prejudice to the other parties involved.Slide12
Leave to Appeal – Rule 62.2Note that an Affidavit in support must be filed with an Application for Leave to Appeal as with other applications under the CPR (Part 11).
The Attorney General of Grenada v Andy Redhead
In that case Justice Edwards said that the Court requires affidavit
evidence to propel
it to the conclusionthat the appeal would have arealistic ratherthan fancifulprospect of success. Rule 29(2)Slide13
The courts have consistently stated that the “application test” is to be used to determine whether an order is final or interlocutory. The recent amendment to Rule 62.1(3)
has now put that question beyond doubt as it stipulates that: a determination whether an order or
is final or interlocutory is
made on the “application test” See the discourse on the application test in the previously mentioned cases. Slide14
You will notice that some of the older case law refer
to procedural appeals which was the reference used in the CPR before it was recently amended to “interlocutory appeals”. Part 62 has been substantially amended in that regard.Slide15
TIME FOR FILING AN APPEAL
Once you have determined whether you need leave or not, it is absolutely imperative that you file within the prescribed times (to avoid consequential applications for extension of time/strike out etc).
This is a common problem area for practitioners throughout the Territories.Slide16
TIME FOR FILING AN APPEAL
Application for Leave to Appeal
Interlocutory Appeal (no leave required
Interlocutory Appeal (leave granted)
21 days from grant of leave
All other Civil Appeals
s. 45 Cap 80
Notice of Opposition
Time begins to run from the date the order or judgment is made or delivered.Slide17
TIME FOR SERVICE OF APPEALThis is another area of pitfall for practitioners.
An Interlocutory Appeal must be filed AND served within 21 days - Rule 62.10
other appeal must be served within 14 days of
filing – Rule 62.7A counter-notice must be served within 7 days of filing: Rule 62.8
*Importantly, the Notice of Appeal should be served on the party (not his counsel) – Rule 62.7(1)(a)Query: Can Legal Practitioners accept service as agent for a party?Slide18
NEXT STEP – THE TRANSCRIPT
This is a significant cause of delay in the appeal process.
Extent of delay in producing the transcript varies from territory to territory and depends on the human resources available and how taxed they are with the court and other organs of government
The Rules stipulate that the High Court should once a Notice of Appeal is received,
forthwith arrange for the transcript and notify the parties once it is ready
– Rule 62.9(1)Slide19
The TranscriptAlso, in appropriate cases parties can agree in writing to dispense in whole or in part with the need for a transcript -
It is however recommended that the Appellant as soon as he decides to file an appeal should request the transcript in writing from the Court Reporting Unit.
This helps to avoid lengthy delays in appeals due to the unavailability of the transcript.Slide20
SKELETON ARGUMENTS - Rule 62.11
The Registrar must promptly send out a notice to the parties that the Transcript is ready.
receiving this notice, the Appellant has
42 days within which to file and serve the Skeleton Arguments
AND the Record of Appeal. Rules 62.11(1) and 62.12(3) The Respondent must file
and serve his
Skeleton Arguments within
of the date on which he receives the Appellant’s Skeleton Arguments
. Rule 62.11(2)Slide21
SKELETON ARGUMENTS - Rule 62.11Any Reply should be filed
and served within 14 days – Rule 62.11(3)
The Appellant must also
and serve with his Skeleton Argument a Chronology of Events cross-referenced to the Core Bundle or Record of Appeal - Rule 62.11(5)
Ensure also that the Skeleton Arguments and Authorities are properly tabulated and paginated for ease of reference by the Court.Slide22
Practice Direction 10 of 2011 supplements Rule 62.11(4) and sets out directions for the contents and desired length of Skeleton Arguments. They should be concise and succinct. 62.11(4)
This should be strictly adhered to by practitioners as they may otherwise be penalized in costs for non-compliance. Slide23
RECORD OF APPEAL – 62.12
Once notice has been received that the transcript is ready all Respondents must within 21 days inform the Appellant of the documents they wish to have included in the Record of Appeal or Core Bundle: Rule 62.12(2)
Six (6) sets of the Record of Appeal are to be filed for the use of the court within 42 days of the notice regarding the transcript:
Must be tabulated and paginated.
The Record of Appeal must contain the stipulated documents, Rule 62.12(3) and must be forthwith served on the Respondent.Application to correct the Record- 62.12(6) Slide24
Practitioners are reminded of the need to file Core Bundles where the Record of Appeal exceeds 100 pages:
The Core Bundle should contain only such documents as the Court will need to pre-read or to which it will be necessary to refer repeatedly at the appeal:
Interlocutory Appeals–Rule 62.1(2)
Rule 62.10 applies to Interlocutory Appeals whether or not leave is required.
Appeals present an exception to the
rule on filing Record of Appeals and usually you will not require a Transcript. Slide26
INTERLOCUTORY APPEALSOn an Interlocutory Appeal, the Written Submissions and the Bundle of Documents
must be filed at the same time as the Notice of Appeal: Rule 62.10(1)Slide27
Instead of filing a Record of Appeal in Interlocutory Appeals you are required to file 6 Bundles of Documents containing:
The judgment or order appealed;
Relevant affidavits, witness
statements and exhibits(c) Any written admissions or requests for information and replies
(d) The judge’s notes of any submissions made (if any); and(e) Any other relevant documents
See Rule 62.10(1)Slide28
In cases where leave to appeal has been granted the Chief Registrar will usually fax a notice to the parties requiring compliance with the relevant Rules and Practice Directions.
This is to nudge the parties to comply with
Practice Direction No. 10 of 2011 (Skeleton Arguments and List of Authorities)Slide29
INTERLOCUTORY APPLICATIONS DURING THE APPEAL-62.15
Procedural applications (other than an application for leave to appeal) such as a request for Case Management, extension
of time, security for costs, stay of execution must be made in writing (Rule 62.15) and must be filed and served along with the evidence in support (if any) and the skeleton
PD 3 of 2008 Standard directions apply.
Copies of these documents should forthwith be sent by fax or electronically to the Court and to the other parties.
No case management conference necessary for managing applications.
INTERLOCUTORY APPLICATIONS DURING THE APPEALThe Applicant is further required to file an Affidavit of Service evidencing service within 7 days of the date of service of
the application: PD 2 of 2008
. 2(a) &(b)
The failure to prove service is another common problem area which results in adjournments and delays in appeals usually in cases where the Respondent is unrepresented or does not appear.
The court may decide how the matter is to be disposed of if this requirement is not complied with.Slide31
STAY OF EXECUTION
It is trite law that an appeal does not operate as a stay of
execution unless the court orders otherwise.
See Rule 62.19
An application must be made for an order to stay execution of the judgment below. This application may be made with the Application for Leave or separately.Slide32
STAY OF EXECUTION
Practitioners must also be mindful not to seek a stay of execution when such stay is not warranted e.g. where the judgment merely declares legal rights but does not require steps to be taken by either party.
The Court will not necessarily grant a stay of a money judgment.Slide33
Case ManagementPractice Direction No. 9 of 2011
which deals with the case management of civil appeals supplements Rule 62.14. – Appeal Management Judge.Case Management of appeals may be carried out by a single Judge of the Court of Appeal, a Judge, a Master or the Chief Registrar.
Directions may either be in writing or made at a hearing.
In exceptional cases an Appeal Management Judge may be assigned.Slide34
The objective is to secure the just, expeditious and economical disposal of the appeal.
Practitioners should ensure that all the relevant timelines set out in the Rules for filing and serving appeal documents have been complied with before the case management.They should
to raise any preliminary issues and procedural applications at this stage rather than after case management.
Time estimates to be agreed.Slide35
Directions may include the length of time to be allowed for oral arguments.Directions as to preparations of suitably secure bundles.
Court may limit length of oral submissions.
Limit reading aloud from documents and authorities.
Parties to agree main issues. Slide36
Preparation, preparation, preparation!!! Enough can’t be said about the importance of advance preparation and having in place within your practice the necessary human and other resources to properly prosecute an appeal.
This includes regular reminders of deadlines, researching thoroughly the legal issues, responding the reminders from the court office, preparing concise Skeleton Arguments, organizing your oral arguments to address the main issues and staying within the set time limits. One prudent way is to deal with your most salient points first and foremost. Decide if any grounds need to be abandoned or if any issues can be agreed with the other side.