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Practice direction 4

Notice of appeal

Contents

General note

4.1.1 The practice is that where permission to appeal is granted by the Judicial Committee, 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: rule 17(1). The appellant must, within 14 days of the grant by the Judicial Committee of permission to appeal, file notice under rule 17(1)(c) that he wishes to proceed with his appeal. In any other case an appellant must file a notice of appeal in Form 1: rule 17(3). (See Annex 1 to Practice Direction 7 for Form 1 (Appeal).)

4.1.2 In those cases in which an appellant had an appeal as of right but the court appealed from has refused to grant conditional and final leave, the appellant must seek special leave from the Judicial Committee: see Practice Direction 3 and, in particular, paragraph 3.3.3(c).

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Form of notice of appeal

4.2.1 It is essential that the notice of appeal sets out the basis on which and the relevant provision(s) under which the Judicial Committee is said to have jurisdiction. A notice of appeal should be produced in Form 1. Notices which are not legible or which are not produced in the required form will not be accepted. Parties may consult the Registry at any stage of preparation of the notice, and may submit notices in draft for approval. Amendments to notices are allowed where the Registrar is satisfied that this will assist the Judicial Committee and will not unfairly prejudice the respondents or cause undue delay. Any amendments must be served on the respondents (see paragraph 4.2.6).

4.2.2 If an appellant asks the Judicial Committee to depart from one of its own decisions or from one made by the House of Lords, the UK Supreme Court or the Court of Appeal of England and Wales, this should be stated clearly in the notice of appeal and full details of the relevant decision must be given.

(The Supreme Court has not re-issued the House of Lords' Practice Statement of 26 July 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) which stated that the House of Lords would treat former decisions of the House as normally binding but that it would depart from a previous decision when it appeared right to do so. The Practice Statement is "part of the established jurisprudence relating to the conduct of appeals" and "has as much effect in [the Supreme] Court as it did before the Appellate Committee in the House of Lords": Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at paragraphs 24, 25.)

Case title

4.2.3 Notices of appeal to the Judicial Committee carry the same title as in the court below, except that the parties are described as appellant(s) and respondent(s). For reference purposes, the names of parties to the original proceedings who are not parties to the appeal should nevertheless be included in the title: their names should be enclosed in square brackets. The names of all parties should be given in the same sequence as in the title used in the court below.

4.2.4 Notices of appeal in which trustees, executors, etc. are parties are titled in the short form, for example Trustees of John Black's Charity (Respondents) v. White (Appellant).

4.2.5 In any notice of appeal concerning children or where in the court below the title used has been such as to conceal the identity of one or more parties to the proceedings, this fact should be clearly drawn to the attention of the Registry at the time the notice of appeal is filed, so that the title adopted in the Judicial Committee can take account of the need for anonymity. Notices of appeal involving children are normally given a title in the form B (Children).

Service

4.2.6 A copy of the notice of appeal must be served on each respondent or their agents in accordance with rule 6, before it is filed. A certificate of service (giving the full name and address of the respondents or their agents) must be included in Form 1 (Appeal) and signed or a separate certificate of service must be provided. An electronic signature is acceptable. See rule 6(4) and paragraph 2.1.21 of Practice Direction 2.

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Filing a 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 granting permission or final leave to appeal: rule 18(2). However, this time limit may be varied by the Judicial Committee under rule 5. For the relevant time limits see paragraphs 2.1.12-2.1.15 of Practice Direction 2. An appellant must file with his notice of appeal a certificate of value as required by rule 7(6) and (7).

4.3.2 In order to comply with rule 18(2), the notice of appeal must be filed in electronic form only at the Registry, by email to registry@jcpc.uk, and the prescribed fee paid. For the relevant fee see Annex 2 to Practice Direction 7. If permission to appeal was granted by the court below, a copy of the order appealed from must also be filed and, if separate, a copy of the order granting permission to appeal to the Judicial Committee: rule 18(5). If the order appealed from is not immediately available, "the notice of appeal should be filed without delay and the order filed as soon as it is available": rule 18(5).

Filing notice to proceed under rule 17

4.3.3 Where under rule 17(1)(a) an application for permission to appeal stands as a notice of appeal, the appellant must, within 14 days of the grant by the Judicial Committee of permission to appeal, file notice that he wishes to proceed with his appeal. See paragraph 3.3.17 of Practice Direction 3 for filing notice to proceed and paragraph 3.3.18 where an appellant is unable to file notice within the prescribed time limit.

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Out of time appeals

4.4 Where an appellant is unable to file a notice of appeal within the relevant time limit, an application for an extension of time must be made in Section 7 of Form 1 (Appeal). A prospective application for an extension of time cannot be made except in cases in which rule 5(5) applies. (Rule 5(5) provides an automatic extension of the time limit where an application for public funding has been made.)

The respondent's views on the extension of time should be sought and, if possible, those views should be communicated to the Registry. The application for an extension of time will be referred to the Board to be considered at the same time as the appeal. The longer the delay in filing, the more convincing and weighty the explanation will need to be and the Board will need to be satisfied that, having regard to all the circumstances, it is in the interests of justice that the time limit should be extended: see Carlos Hamilton and Jason Lewis v The Queen [2012] UKPC 31. In criminal cases, the prosecuting authorities should be notified as soon as a prisoner has indicated an intention to appeal to the Judicial Committee and a copy of that notification should be produced to the Registrar of the Privy Council when the appeal is filed.

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Fees

4.5 For the fee payable on filing a notice of appeal and on filing notice to proceed under rule 17 see Annex 2 to Practice Direction 7.

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Acknowledgement by respondent

4.6.1 Each "respondent who intends to participate in the appeal must, within 21 days after service under rule 17(2)(a) or rule 18(4)(a), give notice" in Form 3: rule 19(1). (See Annex 1 to Practice Direction 7 for Form 3.) (Where under rule 17(1)(a) an application for permission to appeal stands as a notice of appeal, the time limit for a respondent to give notice under rule 19 runs from the date on which he is served with a resealed copy of the application.)

4.6.2 Before filing, a respondent must serve a copy of Form 3 on the appellant and any other respondent: see rule 19(2). A certificate of service (giving the full name and address of the persons served) must be included in Form 3 and signed or a separate certificate of service must be provided. An electronic signature is acceptable. See rule 6(4) and paragraph 2.1.21 of Practice Direction 2.

4.6.3 The Form 3 must be filed at the Registry in electronic form, by email to registry@jcpc.uk, and the prescribed fee paid. For the relevant fee see Annex 2 to Practice Direction 7.

4.6.4 A respondent who does not give notice under rule 19 will not be permitted to participate in the appeal and will not be given notice of its progress: rule 19(3). An order for costs will not be made in favour of a respondent who has not given notice.

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Review procedure for full appeals

4.7.1 Where a notice of appeal is filed and permission has not been granted by the Judicial Committee (1), a review will be undertaken before the appeal is listed.

The procedure is as follows:

Upon receipt of the Notice of Appeal, the papers will be referred to a single Justice for an initial review of the chronology of proceedings and grounds of appeal. The single Justice may do one of the following:

  1. Direct that the appeal be listed for hearing before a panel of 3 Justices;
  2. Direct that the appeal be listed for hearing before a panel of 5 Justices;
  3. Direct that the appellant(s) be invited to file submissions within 21 days as to why the appeal should not be summarily dismissed on the basis that it:
    i- falls foul of the rule in Devi v Roy [1946] AC 508, i.e. seeks to overturn concurrent findings of fact; and/or
    ii- is otherwise devoid of any merit.

4.7.2 If the single Justice directs that the appeal should be listed, the usual procedure for appeals will continue.

4.7.3 If the single Justice directs that the appellant(s) be invited to file submissions, a letter will be sent to the appellant(s) by the Registry, copied to the Respondent(s) for information, inviting such submissions within 21 days.

4.7.4 Upon receipt of the appellant's submissions, or following the conclusion of the 21 day period if no submissions have been filed, the papers will be referred to a panel of Justices to consider whether the appeal ought to be summarily dismissed, or whether it should proceed to a full appeal hearing. If the former, an order will be made and (if appropriate) sent to the Privy Council for approval by the King in the normal way. This will be a final decision of the JCPC and is not open to reconsideration or appeal.

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Security for costs

4.8.1 Where the Judicial Committee grants permission to appeal, the Committee or the Registrar may, on the application of a respondent, order an appellant to give security for the costs of the appeal and any order for security will determine

  1. the amount of that security, and
  2. the manner in which, and the time within which, security must be given: rule 37.

An application for security must be made in the general form of application, Form 2, (see paragraph 7.1 of, and Annex 1 to, Practice Direction 7). Orders for security for costs will be sparingly made.

4.8.2 For payment of security see paragraph 7.9.1 of Practice Direction 7.

4.8.3 No security for costs is required in cross-appeals.

4.8.4 Where the court below grants permission to appeal, security for costs is a matter for that court. But see paragraph 7.9.2 of Practice Direction 7.

4.8.5 Failure to provide security as required will result in the appeal being struck out by the Registrar although the appellant may apply to reinstate the appeal. See paragraph 7.1 of Practice Direction 7 for applications.

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Expedition

4.9 For requests for expedition see paragraph 6.2.4 of Practice Direction 6.

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Footnotes

  1. Referred to as an 'appeal as of right' Return to footnote 1