Before you Appeal by Gerard St. C. Farara QC

Report
Before you appeal,
here’s 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 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.
LEAVE TO APPEAL
 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.
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 liability
Section 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 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.
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
affidavit
evidence to propel
it to the conclusion
that
the
appeal
would have a
realistic rather
than fanciful
prospect 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
 Time begins to run from the date the order or
judgment is made or delivered.
Application for Leave to Appeal
14 days
Rule 62.2(1)
Interlocutory Appeal (no leave
required
Interlocutory Appeal (leave
granted)
21 days
Rule 62.5(1)(a)
Rule 62.5(1)(b)
All other Civil Appeals
21 days
from
grant of
leave
42 days
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)
Rule 62.5(1)(c)
TIME FOR SERVICE OF APPEAL
This 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
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.
• 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)
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).
→
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 APPEALS
On 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 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.
Case Management
Practice 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.

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