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Session 1999-2000
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| Practice Directions Applicable to Civil Appeals
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HOUSE OF LORDS PRACTICE DIRECTIONS AND STANDING ORDERS APPLICABLE TO CIVIL APPEALS
MARCH 2000 This edition supersedes all earlier editions
CONTENTS PRACTICE DIRECTIONS APPLICABLE TO CIVIL APPEALS I Petitions for leave to appeal 1.1 Court of Appeal in England and Court of Appeal in Northern Ireland 1.3 Court of Session in Scotland
9.1 Form of petition of appeal 9.4 Anonymity and reporting restrictions 11. Statement of facts and issues 13. Lodgment of statement and appendix 24. Bankruptcy: defect through 25. Consolidation and conjoinder 28. Dispute between parties disposed of 31. European Convention on Human Rights 34. Fees and security: payments and deposits 40. Opposed incidental petitions
Standing Orders relating to public business No. 86 Appellate and Appeal Committees
Standing Orders regulating judicial business I Time limit for presenting Appeals II Leave to Appeal from the Courts of Appeal III Leave to Appeal from the High Court IV Appeals to be signed and certified by counsel VIII Expiry of time during recess XI Certificate of leave or difference of opinion in Scottish Appeals
JUDICIAL OFFICE, HOUSE OF LORDS, LONDON SW1A 0PW
Telephone: 020-7219 3111 Facsimile: 020-7219 2476 www.parliament.uk - report faults to 020-7394 4258 _____________________________ Houses of Parliament (Switchboard): 020-7219 3000
The Judicial Office is open from 10.00am to 5.00pm on Mondays to Thursdays in term time and from 10.00am to 4.00pm on Fridays and when Parliament is in recess. The office is closed from 1.00pm to 2.00pm and until midday on the occasion of the Opening of Parliament. (See Direction 38.)
FEES AND TAXATION Fee enquiries should be addressed to the Judicial Office. Taxation enquiries should be addresses to the Judicial Taxing Clerk, telephone 020-7219 3105. (See Appendix K.) Drafts and cheques for fees, including taxing fees, should be made payable to 'House of Lords Account'. Drafts and cheques for security money should be made payable to 'House of Lords Security Fund Account'.
ADMISSION PASSES Neither an admission pass nor prior notice is required for admission to the hearing or judgment of an appeal: those wishing to attend either should enter the Palace via St Stephen's entrance. Admission passes to the Palace of Westminster are however required by all those engaged on judicial business in the House of Lords. Application for passes may be made as follows: For those involved in a hearing: application should be made in advance by letter to the Judicial Office, specifying the persons for whom, their designation and the number of days for which a pass is required. The pass will be available for collection from the Pass Office on the first day on which the pass is required. To attend the Judicial Office: application should be made on the day in person to the Pass Office, where a day-pass will be issued. The Pass Office is located at Black Rod's Garden entrance near the Victoria Tower. In no circumstances will passes be sent through the post, nor will applications by telephone be considered.
HOUSE OF LORDS PRACTICE DIRECTIONS APPLICABLE TO CIVIL APPEALS I. PETITIONS FOR LEAVE TO APPEAL 1. Leave to appeal Court of Appeal in England and Court of Appeal in Northern Ireland 1.1 Leave to appeal is required before an appeal from an order of either of these courts may be presented to the House of Lords.1 1.2 An application for leave to appeal must first be made to the Court of Appeal. If leave is refused, a petition for leave to appeal may be presented to the House of Lords. Court of Session in Scotland 1.3 Leave to appeal from an interlocutor of this court is not normally required2. Where leave is required, it must be obtained from the Inner House of the Court of Session3. High Court of Justice in England & Wales and High Court of Justice in Northern Ireland 1.4 In certain proceedings an appeal from an order of these courts may be brought direct to the House of Lords. Leave to appeal is required and a petition for such leave should be presented to the House4. Contempt of court cases 1.5 In cases involving civil contempt of court, an appeal may be brought under s. 13 of the Administration of Justice Act 19605. Leave to appeal is required and an application for such leave must first be made to the court below. If that application is refused, a petition for leave to appeal may be presented to the House of Lords. Where the decision of the court below is a decision on appeal under the same section of the same Act, leave to appeal to the House of Lords will only be granted if the court below certifies that a point of law of general public importance is involved in that decision and if it appears to that court or to the House, as the case may be, that the point is one that ought to be considered by the House. Where the court below refuses to grant the certificate required, a petition for leave to appeal will not be accepted for presentation to the House. Admissibility of petitions 1.6 Petitions are not admissible for presentation if they fall into one of the following categories:
(b) petitions for leave to appeal to the House of Lords barred by paragraph 13(4) of Schedule 11, or by paragraph 7(4) of Schedule 22, to the Housing Act 1985; (c) petitions for leave to appeal to the House of Lords brought by a petitioner in respect of whom the High Court has made an order under s. 42 of the Supreme Court Act 1981 (restriction of vexatious legal proceedings) unless leave to present such a petition has been granted by the High Court or a judge thereof pursuant to that section (other than a petition for leave to appeal against the s.42 order itself); (d) petitions for leave to appeal from a decision of the Court of Appeal on any appeal from a County Court in any probate proceedings7; (e) petitions for leave to appeal from a decision of the Court of Appeal on an appeal from a decision of the High Court on a question of law under Part III of the Representation of the People Act 19838. Inadmissible petitions will not be accepted for presentation to the House; any fee presented in respect of such a petition will be returned. Where there is doubt as to the admissibility of a petition, it may, at the direction of the Principal Clerk, be accepted for presentation to the House so that its admissibility may be decided by an Appeal Committee; the fee paid in respect of such a petition will not be refunded if the petition is found to be inadmissible. Cross-appeals 1.7 The presentation of an appeal does not entitle a respondent to present a cross-appeal. A respondent who wishes himself to reverse or vary the order appealed from must first obtain leave. Application for leave must first be made to the Court of Appeal. If leave is refused, a petition for leave to cross-appeal may be presented to the House of Lords9. However a party who has leave to appeal does not require separate leave to cross-appeal. Legal aid 1.8 The House of Lords does not grant legal aid. A party to whom a legal aid certificate is issued must immediately lodge the certificate, or a copy of it, in the Judicial Office. Where a prospective petitioner has applied for legal aid, the Judicial Office must be informed in writing within the original time limit for lodging the petition. The period within which a petition may be lodged will then be extended to one month after the final determination of the legal aid application. (If the Judicial Office is not informed of the legal aid application, the petition will be out of time as soon as the original time limit has expired.) The other parties to the proposed petition must also be informed in writing that a legal aid application has been made. See Direction 37. Counsel 1.9 Only junior counsel's fees are allowed on taxation for any stage of a petition for leave to appeal, notwithstanding any apparent allowance for leading counsel in any legal aid certificate. The only exception to this rule is that, where leading counsel conducted the appeal hearing resulting in the order appealed from, he may be instructed to advise the legal aid authorities on the merits of an appeal. 2. TIME LIMITS 2.1 A petition for leave to appeal must be lodged10 in the Judicial Office within one month of the date on which an order appealed from was made11. The order appealed from is the substantive order complained of. Contempt of court 2.2 A petition for leave to appeal in a case involving civil contempt of court must be lodged in the Judicial Office within fourteen days beginning from the date of the refusal of such leave by the court below. The application to the court below must itself be made within fourteen days beginning from the date of the decision of that court from which leave to appeal is sought. Out of time petitions 2.3 A petition lodged after the prescribed time limit has expired must be drafted as out of time. 2.4 A petition for leave to appeal out of time should first set out the reasons why the petition was not lodged within the time limit12. The reasons should not normally exceed a paragraph in length. 2.5 A petition for leave to appeal lodged more than three months after the date of the order appealed from will be allowed only in exceptional circumstances. 3. LODGMENT OF PETITION Form of petition 3.1 A petition for leave to appeal should briefly set out the facts and points of law involved in the appeal. It should conclude with a summary of the reasons why leave to appeal should be granted13. An intention to invite the House to depart from one of its own decisions must be clearly stated as a separate reason, as must a challenge relating to the Human Rights Act 199814 or an intention to seek a reference to the Court of Justice of the European Communities. Supporting documents will only be accepted in exceptional circumstances. Amendments to existing petitions and supplementary petitions are only exceptionally allowed. A petition should not be accompanied by annexations or appendices. 3.2 Petitions which are not clearly legible or which are not produced in the form specified will not be accepted. The Judicial Office can give advice as to the form of petitions. Parties are advised to consult the office at all stages of preparation, and may submit proofs for approval where appropriate. Petitions should be produced on good quality A4 paper, bound on the left like a book and using both sides of the paper. A petition must be signed by the petitioners or their agents. Below the certificate of service should appear the references of every law report of the cause in the courts below and a 'head-note' style summary, whether or not the cause has been reported. Title 3.3 Petitions for leave to appeal to the House of Lords carry the same title as the cause in the court below, but the parties are described as petitioners and respondents15. The names of parties to the original action who are not parties to the petition to the House should still be included in the title16 and the names of all parties should be given in the same order as in the title used in the court below. In any petition concerning minors or where in the courts below the title used has been such as to conceal the identity of one or more parties to the action, this fact should be clearly drawn to the attention of the Judicial Office at the time the petition is lodged, so that the title adopted in the House of Lords may take due account of the need to protect the identity of the minors or parties in question. (Petitions involving minors are normally given a title of the form In re X, where X is the initial letter of the child's surname.) Service 3.4 A copy of the petition must be served on the respondents or their agents, either by delivery in person or by first class post, before lodgment in the Judicial Office. A certificate of such service must be endorsed on the back of the original petition and signed17. Lodgment 3.5 An agent who attends the Judicial Office to lodge papers must be familiar with the subject matter of the petition. 3.6 Two copies of the original petition must be lodged in the Judicial Office with the appropriate fee, together with a copy of the order appealed from and, if separate, a copy of the order of the court below refusing leave to appeal to the House of Lords. If the order is not immediately available, the petition should be lodged in time and the order lodged as soon as possible thereafter. 3.7 Once lodged, the petition will be presented to the House and recorded in the Minutes of Proceedings. Appearance for respondents 3.8 Respondents or their agents should enter appearance to a petition for leave as soon as they have received service. They should enter their name and address at the Judicial Office, either in person or by post, with the appropriate fee, which will be refunded if the petition is dismissed as inadmissible. Those respondents who intend to take no part in the proceedings before the House should notify the Judicial Office, in writing, of that fact. Communications concerning the petition will be sent only to those who have entered appearance. An order for costs will not be made in favour of a respondent who has not entered an appearance. 4. APPEAL COMMITTEE 4.1 On presentation to the House, a petition for leave will be referred to an Appeal Committee. Additional papers 4.2 The following additional papers, for use by the Appeal Committee, must be lodged within one week of lodgment of the petition:
(b) four copies of the order appealed from; (c) if separate, four copies of the order of the court below refusing leave to appeal to the House of Lords; (d) five copies of the official transcript of the judgment of the court below18; (e) five copies of the order of the court of first instance; (f) five copies of the official transcript of the judgment of the court of first instance19; (g) five copies of any unreported judgment cited in the petition or judgment of a court below. No other papers are required, and documents other than those listed above will not normally be received. 4.3 Papers lodged in accordance with 4.2 above should be lodged as individual documents, not bound or inserted into ring binders. Documents which are not clearly legible or which are not in the appropriate style or form (see Direction 3.2) may not be accepted. 4.4 Where the necessary papers are not lodged within three months of presentation of the petition, and no good reason for such failure is given, the petition may, at the direction of the Principal Clerk, be referred to an Appeal Committee without the papers. Preliminary procedure 4.5 If a petition is admissible, the Appeal Committee will consider whether or not leave to appeal should be given. The particular facts and circumstances of each petition will be taken into account. 4.6 The Appeal Committee does not give reasons for a decision. In broad terms, leave to appeal may be refused if a petition does not raise an arguable point of law of general public importance. If the Appeal Committee is unanimously of the opinion that leave should be refused, parties will be notified of that result. Respondents' objections 4.7 If the Appeal Committee is satisfied that leave to appeal should be given, the House may grant leave, with or without terms. If the Appeal Committee takes the provisional view that leave to appeal should be given or given upon terms, the respondents will be invited to lodge objections to the petition, briefly setting out reasons why the petition should not be allowed or making other relevant submissions as to the terms upon which leave should be granted. If objections are submitted they must be served on the other parties. The petitioner will be notified of any proposed terms and may be invited to submit observations on the respondents' objections. If written observations are submitted they must be served on the respondents. 4.8 Parties invited to submit either objections or observations will be informed of the date by which they may do so; this date may not be extended. Seven copies should be lodged in the Judicial Office by that date. The Judicial Office should be informed by the same date if no such submissions are to be made. 4.9 If, having considered any objections submitted by the respondents, the Appeal Committee is unanimous that leave to appeal should be given, parties will be notified of that result. 4.10 Where the Appeal Committee is not unanimous, or where further argument is required, the petition will be referred for an oral hearing. 4.11 If the respondents have not already been invited to lodge objections, they should do so as soon as possible after having been informed that the petition has been referred for hearing. Oral hearing 4.12 If a petition is referred for an oral hearing, the petitioners and all respondents who have entered appearance will be notified of the probable date of meeting of the Appeal Committee, before whom the parties are directed to attend. However, no guarantee can be given that the date notified will be adhered to. Once referred for an oral hearing, a petition may be listed at any time, possibly at short notice. 4.13 Parties may be heard before the Appeal Committee by counsel, by agent, or in person, but only one may be heard on each side. 4.14 If counsel is briefed, the Judicial Office must be notified of the name. Only junior counsel's fees are allowed on taxation20. 4.15 Authorities should not normally be cited before the Appeal Committee. Order of the House 4.16 Copies of the Minutes of Proceedings of the House recording the report of the Appeal Committee and the order of the House are sent to all parties. 4.17 A formal order is only issued on written request and on payment of a fee. An order is not required for taxation of costs in the House of Lords. Expedition 4.18 Once all the papers specified in Direction 4.2 have been lodged, the preliminary procedure described in Directions 4.5 and 4.6 above will normally be completed within eight sitting weeks. Any party to a petition may, at any stage, request expedited consideration. Such a request should be made by letter to the Principal Clerk, giving reasons; a copy should be sent to the other parties. If the reasons concern liberty, urgent medical intervention or the well-being of young children, the request will usually be granted; otherwise, expedited consideration will be granted only in exceptional circumstances. 5. COSTS 5.1 Where a petition for leave to appeal is determined without an oral hearing, costs may be awarded as follows:
(b) to a legally aided respondent, only those costs necessarily incurred in attending the client, attending the petitioner's agents, perusing the petition and entering appearance22; (c) to an unassisted respondent where the petitioner is legally aided, payment out of the Legal Aid Fund (pursuant to s. 18 of the Legal Aid Act 198823) of costs as specified at (b) above; (d) to a respondent where neither party is legally aided, costs as specified at b) above. Where costs are sought under (c) or (d) above, application must be made in writing to the Judicial Office before the bill is lodged. 5.2 Where a petition for leave to appeal is referred for an oral hearing and is dismissed, application for costs must be made by the respondent at the end of the hearing. No order for costs will be made unless requested at that time. 5.3 Where a petition for leave to appeal is allowed, costs of the petition will be costs in the ensuing appeal. 5.4 Bills of costs for taxation must be lodged within three months from the date of the decision of the Appeal Committee or the date on which a petition for leave is withdrawn in accordance with Direction 45. If an extension of the three month period is required, application should be made to the Taxing Officer in writing before the original time expires. If no application is made a bill lodged out of time will be accepted only in exceptional circumstances. 5.5 The directions relating to taxation, and the form of bill to be lodged, are available on request from the Judicial Office. Fees are payable on taxation of a bill of costs. 6. 'LEAPFROG' PETITIONS 6.1 Where a certificate has been granted by the High Court under s. 12 of the Administration of Justice Act 1969, a petition for leave to appeal to the House of Lords may be lodged by any or all of the parties to the proceedings. The petition should indicate whether the High Court certificate was granted under s. 12(3)(a) or 12(3)(b) of the Act. 6.2 A petition must be lodged24 within one month of the date on which the certificate was granted by the High Court. Where further time is required for lodging a petition, a request must be made in writing before the original time expires. The request must give reasons for the time to be extended and must be accompanied by three copies of the official transcript of the High Court judgment25. 6.3 If there is any party not joining in the petition, the petitioners must notify that party in writing and endorse on the back of the petition a certificate that such notice has been given. 6.4 One copy of the High Court's certificate must be lodged with the petition. 6.5 The following additional papers, for use by the Appeal Committee, must be lodged within one week of the lodgment of the petition:
(b) four copies of the order appealed from; (c) where separate, four copies of the High Court's certificate; (d) five copies of the official transcript of the judgment of the High Court26. No other papers are required, and documents other than those listed above will not normally be received. 6.6 A 'leapfrog' petition will be considered by an Appeal Committee without an oral hearing. Parties will be notified of the Committee's decision.
NB Section III (Miscellaneous) also applies to petitions for leave to appeal as appropriate. Attention is drawn particularly to Directions 29 (Disposal of documents), 30 (Preparation of documents), 34 (Fees and security), 35 (Waiver of fees), 37 (Legal aid), 38 (Lodgment), and 45 (Withdrawal) and to Appendix K (Fees and security money).
II. APPEALS 7. TIME LIMITS 7.1 Unless the time for appealing is otherwise limited by statute or by an order of the House27 or of the court below, a petition of appeal must be lodged in the Judicial Office within three months of the date on which the order appealed from was made28. The order appealed from is the substantive order complained of. Out of time appeals 7.2 Where an appeal is not lodged within the time allowed, a petition for leave to present an appeal out of time may be lodged, together with the appropriate fee. Such petitions will be dealt with in accordance with Direction 38. Unless leave is sought on grounds of a misunderstanding or a technicality, and with the respondent's consent, it will be granted only in exceptional cases. 8. LONDON AGENTS 8.1 Solicitors outside London may appoint London agents. Those who decide not to do so should note that any additional costs incurred as a result of that decision may be disallowed on taxation. 9. LODGMENT OF APPEAL Form of petition of appeal 9.1 All formal documents should be produced on good quality A4 paper, bound on the left and using both sides of the paper. For style of petition, see Appendix C; for preparation of documents, see Direction 30. 9.2 Where leave to appeal has been obtained, a petition of appeal must be signed by the appellants or their agents. Where leave is not required (that is, in most Scottish appeals) a petition must be signed, and certified as reasonable, by two counsel29. In certain Scottish appeals a further certificate is also required30. Title 9.3 Petitions of appeal to the House of Lords carry the same title as the cause in the court below, but the parties are described as appellants and respondents31. The names of parties to the original action who are not parties to the appeal to the House should still be included in the title32 and the names of all parties should be given in the same order as in the title used in the court below. Anonymity and reporting restrictions 9.4 In any appeal concerning minors or where in the courts below the title used has been such as to conceal the identity of one or more parties to the action, this fact should be clearly drawn to the attention of the Judicial Office at the time the appeal is lodged, so that the title adopted in the House of Lords may take due account of the need to protect the identity of the minors or parties in question. (Appeals involving minors are normally given a title of the form In re X, where X is the initial letter of the child's surname.) 9.5 In any appeal concerning minors, parties should also consider whether it would be appropriate for the House to make an order under s. 39 of the Children and Young Persons Act 1933 and should, in any event, inform the Judicial Office if such an order has been made by a court below. A request for such an order should be made in writing, preferably on behalf of all parties to the appeal, as soon as possible after the appeal has been presented and not later than two weeks before the commencement of the hearing. The same applies to a request for an order under s. 4 of the Contempt of Court Act 1981. Service 9.6 A copy of the petition of appeal must be served on the respondents or their agents, either by delivery in person or by first class post, before lodgment in the Judicial Office. A certificate of such service must be endorsed on the back of the original petition and signed33. Lodgment 9.7 The original petition and five copies must be lodged in the Judicial Office together with the appropriate fee. 9.8 Once the petition of appeal has been lodged, it will be presented to the House and recorded in the Minutes of Proceedings, a copy of which will be sent to all known parties. Appearance for respondents 9.9 Respondents' agents should enter appearance to an appeal as soon as they have received service of the petition of appeal. They should enter their name and address at the Judicial Office, either in person or by post, together with the appropriate fee. Respondents who intend to take no part in the proceedings before the House should notify the Judicial Office, in writing. Communications concerning the appeal will be sent only to those who have entered appearance. An order for costs will not be made in favour of a respondent who has not entered an appearance. Young children 9.10 Parties should draw to the attention of the Principal Clerk any case involving a young child, where delay might affect the facts of the case or the interests of the child. 10. SECURITY FOR COSTS 10.1 Appellants must give security for costs by payment into the House of Lords Security Fund Account of the appropriate sum within one week of the presentation of an appeal. Failure to do so will result in the appeal being dismissed34. 10.2 No interest is payable on security money. Waiver of security 10.3 If all the respondents agree to security for costs being waived, the appellants may lodge, together with the appropriate fee, a form of consent to a waiver signed by the respondents. Thereafter an order will be made releasing the appellants from the obligation to pay security. Consent must be lodged within one week of the presentation of an appeal. A form of consent should be obtained from the Judicial Office. 10.4 The following classes of appellant are not required to give security for costs and no waiver is necessary:
(b) an appellant in an appeal under the Child Abduction and Custody Act 1985; (c) a Minister or Government department35. 10.5 No security for costs or waiver is necessary in respect of cross-appeals. 10.6 The House has the power to modify the requirement to give security for costs but will use this power only in rare circumstances and on report from an Appeal Committee36 after an oral hearing. 11. STATEMENT OF FACTS AND ISSUES 11.1 The appellants must prepare a statement of the facts and issues involved in the appeal. The appellants should draw up the statement and submit it to the respondents for discussion. The statement lodged37 must be a single document agreed between the parties. It should not contain material more appropriately included in a case38. Should there be any disagreement, disputed material should be included in each party's case. 11.2 The statement need not set out or summarise the judgments of the lower courts, nor set out statutory provisions, nor contain an account of the proceedings below. It may be assumed that the statement will be read in conjunction with the documents in the Appendix39. 11.3 For form of statement, see Direction 30. 12. APPENDIX 12.1 The appellants must also prepare and lodge40 an appendix containing documents used in evidence or recording proceedings in the courts below. This should be done in consultation with the respondents, and the contents of the appendix must be agreed between the parties before lodgment in the Judicial Office. 12.2 The cost of preparing the appendix is borne in the first instance by the appellants, though it will ultimately be subject to the decision of the House as to the costs of the appeal. Contents of appendix 12.3 The appendix should contain only such documents, or such extracts from documents, as are clearly necessary for the support and understanding of the argument of the appeal. No document which was not used in evidence or does not record proceedings relevant to the action in the courts below may be included. Transcripts of arguments in the courts below must not be included unless:
(b) the arguments refer to facts which are admitted by all parties and as to which no evidence was called. 12.4 The appendix may consist of one or more parts. Part I should contain:
(b) case stated (if any); (c) judgments of the decisions at first instance and on appeal together with copies of the orders of all courts; (d) the relevant legislative provisions including delegated legislation; (e) any crucial document on which the action is founded (such as a will, contract, map, plan etc.) or the relevant extract from such a document. For judgments published in the Law Reports or the Weekly Law Reports, the relevant unbound parts should be included; otherwise the All England Reports, Tax Cases, Simons' Tax Cases, Reports of Patent Cases and Lloyd's List Reports may be used. In appeals from Scotland, Session Cases should be used where available; failing that, the Scots Law Times, which failing the Scottish Civil Case Reports should be used. Where at the time of preparation of the Appendix, a judgment of a court below is not published in one of the reports listed above, a transcript must be included. If it then becomes available by the time the bound case is lodged, the published version should be substituted for the transcript. If a judgment is published after the lodging of the bound volume but before the hearing of the appeal, 15 copies should be submitted to the Judicial Office as soon as possible. Judgments in draft are not accepted. For legislation, the printed Act or set of Regulations should be used if it is conveniently small; if not, the relevant provisions only should be copied. Halsbury's statutes may be used. 12.5 Other documents should be included in Part II of the appendix (and subsequent parts if, owing to bulk, the material is more conveniently made up into more than one volume). 12.6 For form of appendix, see Direction 30. Documents in readiness at hearing 12.7 Any document disputed between the parties, and any document which is not included in the appendix but which may be required at the hearing, should be held in readiness and, subject to leave being given, may be introduced at an appropriate moment. Fifteen copies are required. The other parties must be given notice of any document which will be held in readiness at the hearing. Examination of appendix 12.8 The appendix is for the use of all parties. As soon as a proof is available it should be examined against the originals by all parties, if possible at one joint examination. 12.9 As soon as practicable after the examination, a final proof of the appendix should be provided to each party. Scottish Record 12.10 Appellants in Scottish appeals should include the Record and Interlocutors in Part I of the appendix41. 13. LODGMENT OF STATEMENT AND APPENDIX 13.1 The statement and appendix must be lodged by the appellants within six weeks of the presentation of the appeal42 Petitions for extension of time 13.2 If the appellants are unable to prepare the statement and appendix within the time specified, they should petition for an extension of that time, indicating the reasons for the request43. Applications may be made for an extension of one to six weeks, and the petition must specify the date to which extension is requested. The extension granted in recess by Standing Order VIII does not apply to time extended on petition, but if the date specified is likely to fall in a recess, the petition may request extension until '[date specified] or the third sitting day of the next ensuing meeting of the House'44. 13.3 A petition for extension of time must be signed by the appellants. It must be submitted to those respondents who have entered appearance, for the endorsement of their consent. The petition, together with the appropriate fee, must be lodged before the expiration of the time allowed for lodgment of the statement and appendix. 13.4 It is expected that respondents will not unreasonably withhold consent to a petition for extension of time. If consent is refused the petition must be endorsed with a certificate that it has been served on the respondents. The petition will then be referred to an Appeal Committee for hearing. In that event, six copies of the petition must be lodged, together with the appropriate fee. 13.5 Up to three extensions of time will ordinarily be granted, provided that they do not prejudice the proper preparation for the hearing or its proposed date. Subsequent petitions may, at the direction of the Principal Clerk, be referred to an Appeal Committee. Lodgment 13.6 The appellants should deposit in the Judicial Office, together with the appropriate fee, six copies of the statement, six copies part I of the appendix and 15 copies of each subsequent part of the appendix. 14. SETTING DOWN FOR HEARING 14.1 When lodging the statement and appendix the appellants must apply to set the appeal down for hearing. 14.2 Once an appeal has been set down for hearing (i.e. on lodgment of the statement and appendix), it may be called on at any time. Allocation of time 14.3 Within seven days of the setting down of the appeal, each party should notify the Judicial Office of the time, in hours, which counsel consider necessary for each address which it is proposed should be made on behalf of that party. 14.4 Subject to any directions which may be given at or prior to the hearing, counsel will be expected to confine their submissions to the time indicated in their estimates. Arrangements for hearings will be made on that basis. Amended estimates should be communicated at once. 15. APPELLANTS' AND RESPONDENTS' CASES 15.1 A case should be a succinct statement of a party's argument in the appeal. It should omit the material contained in the statement of facts and issues and should be confined to the heads of argument which counsel propose to submit at the hearing45. 15.2 If either party is abandoning any point taken in the courts below, this should be made plain in the case. Equally if they intend to apply in the course of the hearing for leave to introduce a new point not taken below, this should be indicated in their case and the Judicial Office should be informed. If such a point involves the introduction of fresh evidence, application for leave must be made either in the case or by lodging a petition for leave to adduce the fresh evidence. 15.3 If the parties intend to invite the House to depart from one of its own decisions, this intention must be clearly stated in a separate paragraph of the case, to which special attention must be drawn. A respondent who wishes to contend that a decision of the court below should be affirmed on grounds other than those relied on by that court must set out the grounds for that contention in the case. 15.4 All cases must conclude with a numbered summary of the reasons upon which the argument is founded, and must bear the signature of at least one counsel who has appeared in the court below or who will be briefed for the hearing before the House46. 15.5 Transcripts of unreported judgments should only be cited when they contain an authoritative statement of a relevant principle of law not to be found in a reported case or are necessary for the understanding of some other authority. 15.6 The respondents' case should start by setting out their correct title and address. 15.7 The lodgment of a case carries the right to be heard by two counsel, one of whom may be leading counsel. Unless otherwise ordered upon application at the hearing, only two counsel's fees are allowed on taxation. Separate cases 15.8 All the appellants must join in one case, and all the respondents must similarly join unless it can be shown that the interests of one or more of the respondents are distinct from those of the remainder. In the latter event, the respondents' agents first lodging their case must give a certificate by letter in one of the following forms:
(b) 'We, as agents for the respondent(s) [name particular parties], certify that the interests represented in the case lodged by us are, in our opinion, distinct from those of the remaining respondent(s).' 15.9 When one of the foregoing certificates has been given, all remaining respondents wishing to lodge a case must respectively petition to do so in respect of each of their separate cases. Such petitions (which must be lodged with the appropriate fee) must be consented to by the appellants, and must set out the reasons for separate lodgment. 15.10 Parties whose interests in the appeal are passive (e.g. stake-holders, trustees, executors, etc.) are not required to lodge a separate case but should ensure that their position is explained in one of the cases lodged. Joint case 15.11 The lodgment of a joint case on behalf of both appellants and respondents may be permitted in certain circumstances. Lodgment and exchange of cases 15.12 As soon as the cases have been prepared, in any event no later than three weeks before the proposed date of the hearing, each party must lodge in the Judicial Office six copies of its case and all parties must exchange cases. The number of copies of cases exchanged should be sufficient to meet the requirements of counsel and agents but should not usually exceed eight. To enable the appellants to lodge the bound volumes, the respondents must provide them with 15 further copies of their case. Form of cases 15.13 For form of case, see Direction 30. 16. BOUND VOLUMES 16.1 No later than two weeks before the proposed date of hearing, the appellants must lodge (in addition to the documents earlier lodged) 15 bound volumes. Each should contain:
(b) the petition(s) of cross appeal (if any); (c) the statement of facts and issues; (d) the appellants' and respondents' cases, with cross-references to the appendices and authorities volumes; (e) case for the amicus curiae or intervener, if any; (f) Part I of the appendix; (g) the index to the authorities volumes. 16.2 For form of bound volumes, see Direction 30. 16.3 To enable the appellants to lodge the bound volumes, the respondents must provide them with 15 further copies of their case. 16.4 Respondents should arrange with the appellants for the binding of such volumes as the respondents' counsel and agents may require. 17. AUTHORITIES 17.1 Seven copies of all authorities which may be needed during the hearing must be lodged at the same time as the Bound Volume47. The authorities volumes should be comb bound in green card covers48. They should be lodged in separate containers from the Bound Volumes. The binding and lodging of the volumes is the duty of the appellants. To enable the appellants to lodge the volumes, the respondents must provide them with seven copies of any authorities which they require but which the appellants do not, or arrange with the appellants for their photocopying. Respondents should arrange with the appellants for the binding of such volumes as the respondents' counsel and agents may require. 17.2 The first volume(s) should contain citations from the C and L series of the Official Journal of the European Union; the Law Reports; the All England Reports; the Weekly Law Reports; Session Cases; the Scots Law Times; and the current edition of Halsbury's Laws. Subsequent volumes should contain all other material. The first volume must contain an index to the authorities volumes and a separate index to the first volume. Each subsequent volume must contain an index to that volume. The authorities themselves should be separated by numbered dividers. 17.3 Where a case is not reported in the Law Reports or Session Cases, references to other recognised reports should be given49. In Revenue appeals, Tax Cases may be cited but, wherever possible, references to the case in the Law Reports or Session Cases should also be given. 17.4 Electronic sources may be used for the duplication of authorities. Authorities may not be lodged in any form other than on paper. 17.5 In emergencies (for the convenience of the House or Committee), the House of Lords Library can arrange for photocopies of certain authorities to be made available at the hearing50. Parties must themselves provide seven copies of any other authority or of unreported cases. They must similarly provide copies of any authority of which adequate notice has not been given. 17.6 The cost of preparing the volumes is borne in the first instance by the appellants, though it will ultimately be subject to the decision of the House as to the costs of the appeal. 18. NOTICE OF HEARING 18.1 In arranging the dates for the hearing of an appeal, the Judicial Office will endeavour to suit the convenience of all parties, and to that end provisional dates are arranged in advance. However no guarantee can be given that these dates will be adhered to; and once an appeal has been set down it may be called on at any time, possibly at short notice. Counsel, agents and parties should, in any event, hold themselves in readiness during the week prior to, and the week following, the provisional date arranged. 18.2 Agents receive formal notification shortly before the hearing. 18.3 The Judicial Office must be informed as early as possible of the names of counsel briefed. 19. COSTS 19.1 If counsel wish to seek an order other than that costs be awarded to the successful party, a submission to that effect should be made at the hearing immediately after the conclusion of the argument. Any such submission, whether heard or not, should also be made in writing no more than 14 days after the conclusion of the hearing. If it is submitted that costs should follow the event, a short written submission to that effect should also be made within the same period of time. 19.2 Where one party is legally aided and where, in the event of proceedings being decided in favour of the unassisted party, the unassisted party would seek an order for costs under s. 18 of the Legal Aid Act 1988, a submission to that effect should be made and the Legal Aid Board should be informed. In these circumstances, it is the responsibility of the parties to bring to the attention of the Judicial Office any factor which might affect the making of such an order by the House51. Submissions at judgment 19.3 Leave may be given to a party to make such submissions at the judgment in the House. Prior notice of intention to make submissions on costs must be given in writing to the Judicial Office, at least two clear days before the judgment, stating the nature of the order sought. A copy of the submissions must be sent to the agents for the other party or parties to the appeal to arrive at least two clear days before the date of judgment. 20. JUDGMENT 20.1 Agents will be notified of the date of judgment, which is delivered in the Chamber of the House. Only one week's notice will normally be given. One junior of counsel for each party or group of parties who have lodged a case is required to attend when judgment is delivered; and only a junior's fee will be allowed on taxation. If leading counsel wish to attend judgment, it is the convention that Queen's Counsel wear full-bottomed wigs when appearing at the Bar of the House. Counsel instructed for judgment must be familiar with the subject matter of the appeal and with the options for its accurate disposal. 20.2 The opinions of the Lords of Appeal and the questions to be put to the House may be made available (from the Judicial Office) to each party a short while before judgment is given, usually at 10.30am when judgment is to be given at 2.00pm. In that event, a strict embargo applies until after judgment has been delivered. If these texts are so released in advance, it is the duty of counsel to check that the question to be put to the House disposes of the appeal in accordance with the opinions of the Lords of Appeal. Any query should be reported immediately to the Judicial Office. 21. ORDER OF THE HOUSE Draft order 21.1 After the House has given judgment, drafts of the order of the House are sent to all parties who lodged a case. The drafts must be returned to the Judicial Office within one week of the date of receipt (unless otherwise directed) either approved or with suggested amendments. If substantial amendments are proposed, they must be submitted to the agents for the other parties, who should indicate their approval or disagreement both to the agents submitting the proposals and to the Judicial Office. Where the amendments proposed are contrary to the questions put to the House, a petition should be lodged. Final order 21.2 The final order is sent free of charge to the agents for the successful parties. 21.3 Prints of the final order are sent free of charge to the agents for all parties who have entered appearance. 22. BILLS OF COSTS 22.1 Bills of costs for taxation must be lodged within three months from the date of the final judgment52, the decision of the Appeal Committee, or the date that a petition for leave or a petition of appeal is withdrawn in accordance with Direction 45. If an extension of the three month period is required, application should be made to the Taxing Officer in writing before the original time expires. If no application is made, a bill lodged out of time will be accepted only in exceptional circumstances. 22.2 The directions relating to taxation, and the form of bill to be lodged, are available on request from the Judicial Office. 23. DISPOSAL OF SECURITY MONEY 23.1 Where the appellants are ordered to pay the costs of the appeal, then unless it is otherwise agreed between the parties, the respondents' costs are first satisfied, either in whole or in part, by direct payment to the respondents of money deposited in the Security Fund. 23.2 If the total amount of the respondents' costs as allowed can be so satisfied, any balance of the money in the Security Fund is remitted to the party who paid it in. 23.3 If the respondents' costs are in part satisfied by such payment, the certificate of taxation which is forwarded to the respondents takes account of the amount so paid. 23.4 Where more than one bill of respondents' costs require payment by the appellants, and the money deposited as security is insufficient to satisfy all the bills, the money is divided between the bills in proportion to their amounts as allowed. 23.5 Where the appellants are not ordered to pay the costs of the appeal, money paid into the Security Fund is returned to them when the final order has been issued. 23.6 If an appeal is withdrawn before setting down or is dismissed for want of prosecution, or if the respondent fails to lodge a bill of costs within three months, the appellants may make written application to the Clerk of the Parliaments for the return to them of money deposited in the Security Fund. Such an application must be accompanied by the written consent of all the respondents who have entered appearance. If any respondents refuse consent, the appellants may send them a written demand that they lodge a bill of costs within four weeks from the date of such notice; and, if the Clerk of the Parliaments is satisfied that such a demand was duly sent and if the said respondent fails to lodge a bill of costs within the time specified, the money deposited in the Security Fund will be returned to the appellants. III. MISCELLANEOUS 24. BANKRUPTCY: DEFECT THROUGH 24.1 If a party to an appeal is adjudicated bankrupt, immediate notice must be given in writing to the other parties and to the Clerk of the Parliaments, who must also be provided with a certified copy of the bankruptcy order. The appeal cannot proceed until a petition to render the appeal effective has been agreed to by the House. 24.2 Such a petition must be lodged within three months of the date of the notice. 24.3 The form of petition and the procedure for a supplemental case follows that for abatement53. 25. CONSOLIDATION AND CONJOINDER 25.1 Where the issues in two or more appeals are similar, it may be appropriate for them to be consolidated or conjoined. Consolidation of two or more appeals results in them being carried on as a single cause with one set of counsel and one case on each side and a single appendix. Conjoinder is a looser linking of two or more appeals, and a number of variations are possible. The Judicial Office should be consulted on the question of whether consolidation or some form of conjoinder is most likely to be appropriate. A principal consideration should be to avoid, wherever possible, separate representation by counsel or any duplication in the submissions made. 25.2 Applications to consolidate or to conjoin appeals and other incidental applications must be made by petition54. 25.3 The petition should be signed by the agents for all petitioners and must be submitted to the agents for all the other parties who have entered appearance for the endorsement of their consent. If consent is refused, the petition must be endorsed with a certificate that it has been served on the agents in question. 25.4 If all parties consent to or join in the petition, two copies of the petition should be lodged, together with the appropriate fee. If any party refuses their consent, six copies of the petition should be lodged, together with the appropriate fee. In that event, the petition will be referred to an Appeal Committee55. 26. CROSS-APPEALS 26.1 The presentation of an appeal does not entitle a respondent to present a cross-appeal56. Leave is required. 26.2 A petition of cross-appeal must be lodged, with the appropriate fee, within six weeks of the presentation of the original appeal57. A cross-appeal may be presented out of time in accordance with Direction 7.2. In a petition of cross-appeal, the original respondent in the House of Lords lodging the cross-appeal should be designated the cross-appellant and the original appellant should be designated the cross-respondent. 26.3 Argument in respect of a cross-appeal must be included by each party in their case in the original appeal. Such an inclusive case must clearly state that it is lodged in respect of both the original and cross-appeals. 26.4 Documents in respect of the original appeal and the cross-appeal should be included in one Appendix. Responsibility for lodging the statement and appendix and setting the cause down for hearing (including payment of the fee) lies with the original appellants. 27. DEATH: ABATEMENT THROUGH 27.1 In the event of the death of a party to an appeal, notice in writing must be given immediately both to the Clerk of the Parliaments and to the other parties. The appeal abates as from the date of death and cannot proceed until a petition for revivor has been agreed to by the House. 27.2 A petition for revivor must be lodged, together with the appropriate fee, within three months of the date of death58. It must be accompanied by an affidavit explaining the circumstances in which the petition for revivor is lodged. The petition must be endorsed with a certificate of service on the respondents, together with the appropriate fee. 27.3 If abatement takes place after the case for the deceased person has been lodged and before the appeal has been heard, the appellants must lodge a supplemental case setting out the orders of the House on revivor and information as to the newly added parties. |
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