Before you appeal, here’s what you need to

know…

By Gerard St. C. Farara, QCSenior 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 a variety of factors including administrative issues in each jurisdiction and practitioners’ failure to comply with the Civil Procedure Rules and the Practice Directions.

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.

The Relevant Legislation, Rules and Practice Directions with which you must be thoroughly familiar are:

1. West Indies Associated States Supreme Court (Virgin Islands) Act (Cap 80)

2. Civil Procedure Rules, 2000 (as amended), Part 62

3. The Court of Appeal Rules, 1968 – Criminal Appeals

4. Practice Directions:

No. 2 of 2008 (Appeals Interlocutory Applications Service and Conduct)

No. 3 of 2008 (Appeals Interlocutory Applications Standard Directions)

No. 9 of 2011 (Appeals Management Civil Appeals) No. 10 of 2011 (Skeleton Arguments and List of Authorities)

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 appeals

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.

Is your Appeal from an Order or Judgment that is FINAL or INTERLOCUTORY and do you need LEAVE TO APPEAL?

This unfortunately is where many practitioners stumble before getting out of the blocks. 

LEAVE TO APPEAL

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 judgment.

Exceptions are:  Cases where the liberty or custody of

infants is concerned; Where an injunction or appointment of a

receiver is granted or refused Decree nisi in matrimonial proceedings An Order in Admiralty action determining

liabilitySection 30(2) – No appeal shall lie and 30(3) where leave is also required

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.

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.”

Leave to Appeal

The following cases are also useful:

Nevis Island Administration v La Copproprete du Navire J31 (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.

Leave to AppealIn 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.

Leave to Appeal – Rule 62.2

Note 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 affidavitevidence to propelit to the conclusionthat the appeal would have arealistic ratherthan fancifulprospect of success. Rule 29(2)

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 judgment is final or interlocutory is

made on the “application test” See the discourse on the application test in the previously mentioned cases.

 

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.

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.

TIME FOR FILING AN APPEAL

Application for Leave to Appeal 14 days Rule 62.2(1)

Interlocutory Appeal (no leave required

21 days Rule 62.5(1)(a)

Interlocutory Appeal (leave granted) 21 days from grant of leave

Rule 62.5(1)(b)

All other Civil Appeals 42 days Rule 62.5(1)(c)

Criminal Appeals 14 days s. 45 Cap 80

Notice of Opposition 7 days Rule 62.10(3)PD 2 of 2008

Counter-Notice 14 days Rule 62.8(3)

Time begins to run from the date the order or judgment is made or delivered.

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

Any other appeal must be served within 14 days of filing – Rule 62.7

A 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?

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)

The Transcript

• Also, in appropriate cases parties can agree in writing to dispense in whole or in part with the need for a transcript - Rule 62.9(3)

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.

SKELETON ARGUMENTS - Rule 62.11

The Registrar must promptly send out a notice to the parties that the Transcript is ready.

On 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 28 days of the date on which he receives the Appellant’s Skeleton Arguments. Rule 62.11(2)

SKELETON ARGUMENTS - Rule 62.11

Any Reply should be filed and served within 14 days – Rule 62.11(3)

The Appellant must also file 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.

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.

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: Rule 62.12(3). 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) 

Practitioners are reminded of the need to file Core Bundles where the Record of Appeal exceeds 100 pages: Rule 62.12(4).  

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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: Rule 62.1(2)

Interlocutory Appeals–Rule 62.1(2)Rule 62.10 applies to Interlocutory Appeals whether or not leave is required.

Interlocutory Appeals present an exception to the rule on filing Record of Appeals and usually you will not require a Transcript. 

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)

Instead of filing a Record of Appeal in Interlocutory Appeals you are required to file 6 Bundles of Documents containing: (a) The judgment or order appealed;(b) 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)

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 Rule 62.5(1) and Practice Direction No. 10 of 2011 (Skeleton Arguments and List of Authorities)

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 arguments.

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 APPEAL

The 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 paras. 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.

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.

STAY OF EXECUTIONPractitioners 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.

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.

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 endeavour to raise any preliminary issues and procedural applications at this stage rather than after case management.

Time estimates to be agreed.

 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.

FINISH LINE

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.