Part 62 – Appeals to the Court of Appeal

Scope of this Part

62.1

1. This Part deals with appeals to the Court of Appeal from –
   1. the High Court;
   2. a magistrate’s or district court; or
   3. a tribunal, not being –
      1. appeals or applications to the court for which other provision is made by these Rules or any other law; or
      2. appeals by way of case stated on a question of law for determination by the court.
         • Part 60 deals with appeals to the High Court and cases stated are dealt with in Part 61.
2. In this Part –
   • “appellant” means the party who first files a notice of appeal;
   • “core bundle” means a bundle containing only such documents listed in Rule 62.12 which the court will need to pre-read or to which it will be necessary to refer repeatedly at the appeal;
   • “court” means the Court of Appeal;
   • “court below” means the court or tribunal from which the appeal is brought;
   • “interlocutory appeal” means an appeal from an interlocutory judgment or an interlocutory order.
   • “respondent” means  any party to the appeal other than the appellant whether or not the respondent files a counter-notice.
3. In this Part –
   1. a determination whether an order or judgment is final or interlocutory is made on the “application test”;
   2. an order or judgment is final if it would be determinative of the issues that arise on a claim, whichever way the application could have been decided; and
   3. an order on an application for disclosure against a person who is not a party is a final order.

How to obtain leave to appeal

62.2

1. Where an appeal may be made only with the leave of the court below or the court, a party wishing to appeal must apply for leave within 14 days of the order against which leave to appeal is sought.
   1. Where an application for leave has been refused by the court below, an application for leave may be made to the court within 7 days of such refusal.
2. The application for leave of appeal must be made in writing and set out concisely the grounds of the proposed appeal.
3. An application for leave to appeal made to the court may be considered by a single judge of the court.
4. The judge considering an application under Rule 62.2(3) may give leave without hearing the applicant.
5. However if the judge considering an application under Rule 62.2(3) is minded to refuse leave he or she must direct –
   1. that a hearing be fixed; and
   2. whether that hearing is to be by a single judge or the court.
      • Rule 2.7 deals with how, when and where the court may deal with cases.

Judicial review appeals

62.2A

1. Where leave to apply for judicial review has been refused at a hearing in the court below, the person seeking that leave may apply to the court for leave to appeal.
2. An application in accordance with paragraph (1) must be made within 7 days of the decision of the court below to refuse to give leave to apply for judicial review.
3. On an application under paragraph (1), the court may, instead of giving leave to appeal, give leave to apply for judicial review.
4. Where the court gives leave to apply for judicial review in accordance with paragraph (3), the claim will proceed in the court below, unless the court orders otherwise.

How to appeal

62.3

1. In the case of an appeal from the High Court, an appeal is made by filing a notice of appeal –
   1. at the court office where the judgment was entered; or
   2. by electronic means of communication in accordance with the relevant practice direction issued by the Chief Justice.
2. In the case of an appeal from a Magistrate’s or District Court or a tribunal, an appeal is made by filing a notice of appeal
   1. at the court’s office; or
   2. by electronic means of communication, in accordance with the relevant practice direction issued by the Chief Justice.
3. A notice of appeal takes effect on the day that is filed at the appropriate court office.

 Method of filing documents in an appeal

62.3A

1. A document in an appeal may be filed by:
   1. delivering it;
   2. posting it;
   3. sending it by FAX; or
   4. transmitting it by other electronic means of communication as authorized by the Chief Justice in a practice direction; to the court office where the appeal is proceeding or intended to proceed.

 Contents of notice of appeal

62.4

1. A notice of appeal must be in Form 23 and must give details of –
   1. any power which the appellant wishes the court to exercise;
   2. the decision which is being appealed, identifying so far as practi­cable any finding of –
      1. fact; and
      2. law; which the appellant seeks to challenge;
   3. the grounds of the appeal; and
   4. the order the appellant seeks.
2. A copy of the judgment or order which is the subject of the appeal must wherever practicable be attached to the notice of appeal.
3. Where leave to appeal is required a copy of the order giving leave to appeal must be attached to the notice of appeal.
4. The notice of appeal must –
   1. be signed by the appellant or the appellant’s legal practitioner;
   2. give the details required by rule 3.11; and
   3. state the names and addresses and the legal practitioners and their addresses for service of all other parties affected by the appeal.
5. The grounds of appeal under paragraph (1) (c) must set out –
   1. concisely;
   2. in consecutively numbered paragraphs; and
   3. under distinct heads; the grounds on which the appellant relies, without any argument or narrative.
6. The court may, on or without an application, strike out any ground which –
   1. discloses no reasonable ground of appeal; or
   2. is vague and general in terms.
7. The appellant may, except on an interlocutory appeal, amend the grounds of appeals once without permission at any time within 28 days from receiving notice under Rule 62.9(1) (a), (b) or (c) that a transcript of the evidence and the judgment have been prepared.
8. The appellant may not rely on any ground not mentioned in the notice of appeal without the permission of the court.
9. The court is not confined to the grounds set out in the notice of appeal, but may not make its decision on any ground not set out in the notice of appeal unless the respondent has had sufficient opportunity to contest such ground.

Time for filing notice of appeal

62.5

1. The notice of appeal must be filed at the appropriate court office –
   1. in the case of an interlocutory appeal where leave is not required, within 21 days of the date the decision appealed against was made;
   2. in an interlocutory appeal where leave is required, within 21 days of the date when such leave was granted; or
   3. in the case of any other appeal, within 42 days of the ate when judgment is delivered or the order is made, whichever is earlier.
2. The court below making the interlocutory decision in respect of which a party intends to appeal may extend any of the time in this Rule on application made orally at the time the decision is made.
3. The court may extend any of the time limits in this Rule on an application made under Part 11 and any such application may be determined without a hearing.

Summary appeal

62.6

1. This rule applies to any appeal in which the appellant files with the notice of appeal –
   1. a certificate that the –
      1. appeal is of exceptional urgency;
      2. appeal relates to specific issues of law and can be heard justly without the production of the full record; or
      3. circumstances of the appellant and/or the respondent are such that the cost of preparing the record would impede that party’s ability to prosecute the appeal and that the appeal can be heard justly without production of the full record; and
   2. evidence of the parties’ agreement that the appeal should proceed as a summary appeal.
2. The court office must immediately refer the notice of appeal to the Chief Registrar.
3. The Chief Justice shall assign the matter to a single judge of the court to determine whether the appeal should be dealt with summarily, and if the judge so determines, the judge must give such case management directions as are appropriate to enable the appeal to be dealt with summarily, including dispensing with any procedural requirements in this Part with regard to an appeal proceeding under this Rule.

Service of notice of appeal

62.7

1. The notice of appeal must be served on –
   1. all parties to the proceedings; and
   2. any other person if the court directs, or if required by law.
2. The notice of appeal or amended notice of appeal must be served within 14 days, or within such period as prescribes by law, or order, after the notice has been filed.

Counter notice

62.8

1. Any party upon whom a notice of appeal is served may file a counter-notice.
2. The counter-notice must comply with rule 62.4.
3. The counter-notice must be filed at the appropriate court office in accordance with rule 62.3 within 14 days of service of the notice of appeal.
4. The party filing a counter-notice must serve a copy on all other parties to the proceedings within 7 days or filing.

Action to be taken on receipt of notice of appeal

62.9

1. Upon the notice of appeal being filed (unless Rule 62.6 applies) the court below must forthwith, if the appeal is –
   1. from the High Court –
      1. arrange for the transcript of the proceedings; and
      2. when these are prepared give notice to all parties that copies of the transcript are available on payment of the prescribed fee;
   2. from the magistrate’s or district court, comply with any provision for appeal in the Codes of Procedure, Criminal Code or any other enactment regulation appeals from the magistrate’s or district court; or
   3. from a tribunal- apply to the clerk or other officer of the court or tribunal for a –
      1. certified copy of the record of the proceedings;
      2. certified copy of the most notes of evidence given; and
      3. statement of the judgment, the reasons for the decision and any finding on any question of law under appeal; and forthwith upon receipt of these documents give notice to all parties that copies of the record and other documents are available on payment of the prescribed fee.
2. Where in any case, the transcript of the notes of evidence and of the judgment, or of the proceedings or the notes of evidence is unavailable, the court below shall inform all parties of this in writing.
3. The parties may by agreement in writing dispense with the need for the transcript to be included in the record in whole or in part.

Interlocutory appeal

62.10

1. On an interlocutory appeal the appellant shall be required to file and serve with the notice of  appeal, written submissions in support of the appeal together with six bundles of documents comprising a copy of each of the following documents in the order set out below bound, indexed and paginated –
   1. the judgment (if any) or order appealed;
   2. such affidavits, witness statements or exhibits relevant to the question at issue on the appeal which were put in evidence before the court below;
   3. any written admissions or requests for information and replies;
   4. the judge’s notes of any submissions made (if any); and
   5. any other relevant documents applicable to the appeal.
2. The appellant’s notice of appeal must state in the heading that the appeal is an interlocutory appeal and is made under Rule 62.10 of the Civil Procedure Rules.
3. A respondent who intends to oppose the notice of appeal must within 7 days or receipt of the appeal file and serve a notice of opposition.
4. The respondent may within 14 days of receipt of the notice of appeal file and serve six copies of any written submissions in opposition to the appeal or in support of any cross appeal, together with any other documents, which have not been filed pursuant to paragraph (1) and the documents must be bound, indexed and paginated.
5. Consideration of the appeal must take place not less than 14 days after the filing of the notice of appeal, unless the court otherwise directs.
6. The Court may direct that there be an oral hearing and the parties shall be entitled to make oral submissions.

 Skeleton arguments

62.11

1. Within 52 days of receipt of the notice under Rule 62.9(1) (a), (b) or (c) the appellant must file with the court office and serve on all other parties a skeleton argument.
2. Within 28 days of service of the appellant’s skeleton argument, any other party wishing to be heard on the appeal must file its skeleton argument and serve a copy on all other parties.
3. The appellant may file and serve a skeleton argument in reply within 14 days of service of the skeleton argument by any other party.
4. A skeleton argument must –
   1. set out concisely the nature of the appellant’s arguments on each ground of appeal;
   2. in the case of a point of law, state the point and cite the principal authorities in support with references to the particular page where the principle concerned is set out; and
   3. in the case of questions of fact, state briefly the basis on which it is contended that the court can interfere with the finding of fact concerned, with cross references to the passages in the transcript or notes of evidence which bear on the point.
5. The appellant’s skeleton argument must be accompanied by a written chronology of events relevant to the appeal cross-referenced to the core bundle or record.
6. The Chief Justice may, by practice direction, set out those factors to which the court must have regard when considering the application of this Rule.

The record –appeals from High Court

62.12

1. This Rule applies to all appeals from the High Court other than-
   1. interlocutory appeals; or
   2. summary appeals under Rule 62.6.
2. Within 21 days of receipt of the notice under Rule 62.9(1)(a), (b) or (c) that the transcript is available, all parties must inform the appellant of the documents that they wish to have included in the record or the core bundle.
3. Subject to paragraph (4), within 42 days of receipt of such notice under rule 62.9(1)(a), the appellant must prepare and file with the court office 6 sets of the record for the use of the court comprising a copy of each of the following documents –
   1. affidavits (with exhibits) which were put in evidence before the court below;
   2. a transcript or other record of the —
      1. evidence given in the court below; and
      2. judgment;
   3. the documents required by rule 39.1(5) to be lodged with the court  (including any core bundle);
   4. the notice of appeal and any counter-notices that have been served on the appellant; and
   5. the chronologies under Rule 62.11.
4. If the record consists of more than 100 pages the appellant must prepare a core bundle and file –
   1. 4 copies of the core bundle; and
   2. 2 copies of the record in accordance with paragraph (3); for the use of the court.
5. Where a record of appeal is filed electronically, the appellant shall prepare and file such number of hard copies of the record and core bundle as authorized by the Chief Justice in a practice direction.
6. The appellant must forthwith serve one copy of the record or (if paragraph (4) applies) one copy of any core bundle on every respondent.
7. Any application to correct the record must be made in writing to the Chief Registrar no later than 21 days after the service of the record or core bundle in accordance with paragraph (4).

The record – appeals from magistrates’ courts

62.13

1. This rule applies to appeals from Magistrates’ or District Courts.
2. In the case of an appeal from a magistrate’s or district court the record must consist of the documents referred to in Rule 62.9(1) (b) together with the notice of appeal and any counter-notices that have been served on the appellant.
3. Within 28 days of receipt of the notice under Rule 62.9(1) (b) the appellant must file at the court office six copies of the record for the use of the court.
4. The appellant must forthwith serve one copy of the record on each respondent to the appeal.

Case management

62.14

1. Parts 25 to 27 so far as relevant apply to management of an appeal case as they do to case management of a trial.
2. The Chief Justice may designate a single judge of the court, a judge, master or the Chief Registrar to manage an appeal case.
3. The person designated under paragraph (2) may –
   1. give written directions which may include a direction that a date for hearing of the appeal be fixed or that a case management conference be held; or
   2. hold a case management conference.
4. Directions, whether or not given at a case management conference, must include directions fixing a date for the hearing of the appeal or directions fixing a date by which a listing questionnaire must be sent to all parties and may include directions
   1. as to the length of time to be allocated to the hearing of the appeal;
   2. that the parties agree a core bundle for use at the appeal;
   3. that the parties agree and file a statement of issues for the appeal;
   4. that the parties agree and file a statement summarising the facts found at the trial; and
   5. as to the filing of written briefs and as to the length of time allowed to each party for oral argument; or
   6. that the appeal be considered solely on written briefs without oral argument and as to the time by which such briefs are to be filed.
5. If directions are given that a listing questionnaire be sent to all parties, rules 27.9 and 27.10 apply as if the references to the trial were references to the hearing of the appeal.
6. If the management of an appeal has been referred to a single judge of the court under paragraph (2) that judge must wherever practicable be a member of the court hearing the appeal.
7. The Chief Justice may, by practice direction, set out those factors to which the court must have regard when considering the application of this Rule.

Procedural applications to court

62.15

1. Any application (other than an application for leave to appeal) to the court must be made in writing in the first instance and be considered by the Chief Justice, or if the Chief Justice directs, by –
   1. a judge;
   2. a master;
   3. a single judge of the court;
   4. the Chief Registrar;
   5. the court; or
   6. the registrar of the court below.
2. If an appeal has been referred under rule 62.14(2) to a single judge of the court for case management, the application should, wherever practicable, be considered by that judge.
3. So far as practicable, a procedural application is to be dealt with on paper or by telephonic or other means of communication.
4. The court office must give the parties to the appeal at least 7 days notice of any hearing.

Powers of single judge of the court, master and Chief Registrar to make certain orders

62.16

1. A single judge of the court may make orders for –
   1. an injunction restraining any party from disposing of or parting with the possession of the subject matter of an appeal pending the determination of the appeal;
   2. a stay of execution on any judgment or order against which an appeal has been made pending the determination of the appeal;
   3. extension or abridgement of any time limit prescribed in this Part;
   4. the giving of security for any costs occasioned by an appeal.
2. The Chief Justice may designate a master or the Chief Registrar to make orders for –
   1. extension or abridgement of any time limit prescribed in this Part;
   2. the giving of security for any costs occasioned by an appeal.
3. An order made by a master or the Chief Registrar may be varied or discharged by a single judge.

Variation, discharge or revocation of an order, direction or decision of a single judge

62.16A

1. Any order, direction or decision made or given by a single judge may be varied, discharged or revoked by two judges where the order, direction or decision relates to an appeal of a class which may be heard and determined by two judges and by the full court in any case.
2. An application to vary, discharge or revoke an order, direction or decision made or given by a single judge may be made within 14 days of the date of the order, direction or decision.
   • See The Windward Islands and Leeward Islands (Court’s) Order in Council, 1959, section 10(3) and CPR 2.5 (4) and (5) which provide for actions that may be heard and determined by two judges of the court and actions that may be heard and determined by the full court.

 Security for costs of appeal

62.17

1. The court may order –
   1. an appellant; or
   2. a respondent who files a counter notice asking the court to vary or set aside an order of a lower court; to give security for the costs of the appeal.
2. An application for security may not be made unless the applicant has made a prior written request for such security.
3. In deciding whether to order a party to give security for the costs of the appeal, the court must consider –
   1. the likely ability of that party to pay the costs of the appeal if ordered to do so; and
   2. whether in all the circumstances it is just to make the order.
4. On making an order for security for costs the court must order that the appeal be dismissed with costs if the security is not provided in the amount, in the manner and by the time ordered.
5. Any costs to be paid under paragraph (4) must be assessed by the court.
   • Rule 65.12 deals with the assessment of costs.

Non-disclosure of payment into court, etc.

62.18

1. If
   1. any question on an appeal in a claim for a debt, damages or salvage relates to liability for the debt, damages or salvage or to the amount thereof; and
   2. an offer of settlement was made under Part 35 or payment into court in support of such an offer was made under Part 36 in the proceedings in the court below before judgment; neither the fact nor the amount of the offer or payment is to be stated in any notice of appeal or counter-notice or communicated to the court until all such questions have been decided.
2. For the purpose of complying with this rule the appellant must cause to be omitted from the copies of the documents lodged by the appellant every part which states, or refers to the fact, that money was paid into court or an offer to settle was made in the proceedings in that court before judgment.
3. This rule does not apply to an appeal relating only to costs.

Stay of execution

62.19

1. Except so far as the court below or the court or a single judge of the court otherwise directs –
   1. an appeal does not operate as a stay of execution or of proceedings under the decision of the court below; and
   2. any intermediate act or proceeding is not invalidated by an appeal.

General powers of the court

62.20

1. In relation to an appeal the Court of Appeal has all the powers and duties of the High Court including in particular the powers set out In Part 26.
2. The court may hear an appeal in a Member State or Territory other than where the decision of the court below was made.

Failure of party to attend appeal

62.21

1. If no party appears at the appeal and the court is satisfied that the parties have received notice of the hearing in accordance with these Rules, the court may strike out the appeal and any counter appeal.
2. If one or more but not all parties appear, the court may proceed in the absence of the parties who do not appear if satisfied that the party who does not appear has received notice of the hearing in accordance with these Rules.

Application to set aside decision made in party’s absence

62.22

1. A party who was not present at an appeal at which a decision was made or where an appeal was struck out may apply to set aside that order.
2. The application must be made within 14 days after the date on which the judgment was served on the applicant.
3. The application to set aside the order must be supported by evidence on affidavit showing –
   1. a good reason for failing to attend the hearing; and
   2. that it is likely that had the applicant attended, some other decision might have been made.

 Adjournment of appeal

62.23

1. The court may adjourn an appeal on such terms as it thinks just.
2. The court may only adjourn an appeal to a date and time fixed by the court.

Certificate of result of appeal

62.24

1. At the conclusion of each appeal the court office must prepare a certificate of the result of the appeal in Form 24 and –
   1. file a copy at the court office at which the Notice of Appeal was lodged; and
   2. serve a copy on each party to the appeal.

Withdrawal or discontinuance

62.25

1. If the appellant files a notice that he desires to withdraw or discontinue his appeal, the appeal shall stand dismissed on the date on which such notice is filed.
2. The appellant shall serve copies of the notice of withdrawal or discontinuance on all the parties with regard to whom the appellant wishes to withdraw his appeal within 2 days of filing, and shall file such notice and evidence of service within 2 days of service.
3. Any party served in accordance with this Rule shall be precluded from laying claim to any costs incurred by him after such service unless the court shall otherwise order.
4. Notwithstanding the appeal stands dismissed, the appellant shall be liable for the costs incurred by the respondent.

Liability for costs on withdrawal or discontinuance

62.26

1. Unless the –
   1. parties agree; or
   2. court orders otherwise; an appellant who discontinues is liable for the costs incurred by the respondent against whom the claim is discontinued, on or before the date on which notice of discontinuance was served.
2. If an appeal is only partly discontinued –
   1. the appellant is only liable for the costs relating to that part of the appeal which is discontinued; and
   2. unless the court orders otherwise, the costs which the appellant is liable to pay are not to be quantified until the conclusion of the rest of the appeal.

Quantification of costs on withdrawal or discontinuance

62.27

1. The general rule is that, unless an order has been made for budgeted costs under Rule 65.8, the costs are to be determined in accordance with the scale of prescribed costs contained in Part 65, Appendices B and C.
2. If the appellant discontinues part of the appeal only, the amount of costs must be assessed by the court when the reminder of the appeal is resolved.
3. In determining the appropriate amount of costs to be paid where an order has been made under Rule 65.8 (budgeted costs), the court may take into account any written information provided by either party when the costs budget was made.