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Practice direction 6

The appeal hearing

Contents

General note

6.1.1 Attention is drawn to the provisions of Practice Direction 5 about papers for the appeal hearing. Duplication of material must be avoided particularly where two or more appeals are heard together. he Judicial Committee is moving to a system under which the vast majority of the documents filed are to be provided in electronic form only(1).

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Fixing the hearing date

6.2.1 Within 14 days after the filing of the statement of facts and issues (see paragraphs 5.1.7, 5.2.5 and 5.2.6 of Practice Direction 5), the parties must notify the Registrar that the appeal is ready to list and specify the number of hours that their respective counsel estimate to be necessary for their oral submissions (see rule 22(1)). Parties are encouraged to offer agreed dates which are convenient to all Counsel at an early stage and there is no need to wait until after the filing of the statement of facts and issues to fix the hearing date. Time estimates must be as accurate as possible since, subject to the Judicial Committee's discretion, they are used as the basis for arranging the Judicial Committee's list. The sittings of the Judicial Committee (or the 'law terms') are four in each year, that is to say:

  1. the Michaelmas sittings which begin on 1 October and end on 21 December;
  2. the Hilary sittings which begin on 11 January and end on the Wednesday before Easter Sunday;
  3. the Easter sittings which begin on the second Tuesday after Easter Sunday and end on the Friday before the spring holiday; and
  4. the Trinity sittings which begin on the second Tuesday after the spring holiday and end on 31 July.

The 'spring holiday' means the bank holiday falling on the last Monday in May or any day appointed instead of that day under section 1(2) of the Banking and Financial Dealings Act 1971.

6.2.2 Subject to any directions by the Judicial Committee before or at the hearing, counsel are expected to confine their submissions to the time indicated in their estimates. The Registrar must be informed at once of any alteration to the original estimate. Not more than one day is normally allowed for the hearing of an appeal and appeals are listed for hearing on this basis. Estimates of more than one day must be fully explained in writing to the Registrar. Counsel should agree an order of speeches and timetable for the hearing and submit it to the Registry at least 3 working days (2) before the hearing.

6.2.3 The Registrar will subsequently inform the parties of the date fixed for the hearing. The appellant and every respondent must then sequentially exchange their respective written cases and file them (see rule 23 and paragraph 6.3.9).

Requests for expedition

6.2.4 Any request for an expedited hearing should be made to the Registrar. Wherever possible the views of all parties should be obtained before a request is made.

Directions hearings

6.2.5 Where it considers it to be appropriate, the Judicial Committee may decide that a directions hearing should be held. A directions hearing will normally be held before three members of the Board. Any request for a directions hearing should be made to the Registrar. Wherever possible the views of all parties should be obtained before a request is made.

Hearings via video-link

6.2.6 The Annex to this Practice Direction sets out the technical requirements for holding a hearing via a video link and includes the hearing protocol (3).

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Appellants' and Respondents' cases

6.3.1 The case is the statement of a party's argument in the appeal. The Judicial Committee favours brevity and a case should be a concise summary of the submissions. A case should not (without the permission of the Board) exceed 50 pages of A4 size and in most cases fewer than 50 pages will be sufficient. (4).

6.3.2 The case should be confined to the heads of argument that counsel propose to submit at the hearing and omit material contained in the statement of facts and issues (see paragraph 5.1.7 of Practice Direction 5).

6.3.3 If either party is abandoning any point taken in the courts below, this should be made plain in their case. If they intend to apply in the course of the hearing for permission to introduce a new point not taken below, this should also be indicated in their case and the Registrar informed. If such a point involves the introduction of fresh evidence, application for permission must be made either in the case or by filing an application for permission to adduce the fresh evidence (see paragraph 7.1 of Practice Direction 7 for applications).

6.3.4 If a party intends to invite the Judicial Committee to depart from one of its own decisions or from a decision of the House of Lords or the UK Supreme Court, this intention must be clearly stated in a separate paragraph of their 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 their case.

6.3.5 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 when they are necessary for the understanding of some other authority.

6.3.6 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 for each party to the appeal who has appeared in the court below or who will be briefed for the hearing before the Judicial Committee.

6.3.7 The filing of a case carries the right to be heard by two counsel and, generally (5) fees of two counsel only for any party are allowed on assessment.

Separate cases

6.3.8 Parties whose interests in the appeal are passive (for example, stakeholders, trustees, executors, etc.) are not required to file a separate case but should ensure that their position is explained in one of the cases filed.

Filing and exchange of cases

6.3.9 Rule 23 provides the time limits for the parties to file their cases. Cases must be filed in electronic form as well as in hard copy (see Practice Direction 9 for electronic documents). No later than eight weeks (6) before the proposed date of the hearing, the appellants must file at the Registry the original and (7) 1 copy(8) of their case and serve it on the respondents. The case should be filed in hard copy and electronically(9).

6.3.10 No later than six weeks (10) before the proposed date of the hearing, the respondents must serve on the appellants a copy of their case in response and file at the Registry the original and 1 copy (11) of their case, as must any other party filing a case (for example, an intervener).

6.3.11 The number of copies of cases exchanged should be enough to meet the requirements of counsel and agents and should not usually exceed eight.

6.3.12 Following the exchange of cases, further arguments by either side may not without permission be submitted in advance of the hearing.

Form of cases

6.3.13 Cases must be produced on A4 paper, securely bound on the left, using both sides of the paper with:

  1. numbered paragraphs, and
  2. signatures of counsel at the end, above their printed names.

Key documents bundle

The key documents bundle must contain in the following order hard copies of

  1. the statement of facts and issues;
  2. the appellants' and respondents' cases, with cross-references (in a footnote or in the body of the text) to the record and authorities volume(s);
  3. the case of the advocate to the court or intervener, if any; and
  4. the following orders and judgments
    1. the order appealed against;
    2. the official transcript of the judgment of the court below;
    3. the final order(s) of all other courts below; and
    4. the official transcript of the final judgment(s) of all other courts below.(12)

The key documents bundle:

  1. should be bound, preferably with plastic comb binding and with card covers;
  2. should include tabs for each of the documents, preferably with the name of the document on the tab;
  3. should show on the front cover a list of the contents and the names and addresses of the agents for all parties;
  4. must indicate (by e.g. a label attached to the plastic spine) the short title of the appeal.

Any pagination should accord with the pagination of the electronic volume.

A copy of the key documents bundle must be provided for each member of the Board hearing the appeal and the copies must be filed four weeks before the hearing(13).

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Authorities

6.4.1 A joint set of authorities, jointly produced, should be compiled for the appeal at least 28 days before the hearing. This set should include a primary volume, agreed between Counsel for the parties, containing those legislative provisions and caselaw authorities to which frequent reference is likely to be made during oral argument. Two(14) sets of the primary volume should be filed in hard copy at least 28 days(15) before the hearing. All these authorities must also be filed electronically and included in the electronic bundle prepared for the hearing in accordance with Practice Direction 9 (16). Respondents should arrange with the appellants for the delivery to them of such authorities volumes as the respondents' counsel and agents require. Volumes of authorities which do not comply with paragraph 5.1.2 of Practice Direction 5 will not be accepted. Authorities' volumes must be filed in electronic form (see Practice Direction 9 for electronic documents). The following paragraphs give guidance on the arrangement and order of the volumes but where the parties consider that a different order or arrangement would be of greater assistance to the Board, that order or arrangement should be adopted (17).

6.4.2 The authorities should appear in alphabetical order in the primary volume as well as in other bundles or categories within bundles. The primary volume should include an index to all authorities in all the volumes of authorities, and, where there is a large number of volumes, this index should also be reproduced separately. Every volume of authorities other than the primary volume should contain an index of its own contents. (The indexes must be included in the pagination) (18).

  1. be A4 size reproduced as one page per view (with any authorities smaller than A4 being enlarged);
  2. separate each authority by numbered dividers (20);
  3. contain an index and (21) an index to all the volumes;
  4. be numbered consecutively on the cover and spine with numerals at least point 72 in size for swift identification of different volumes during the hearing;
  5. have printed clearly on the front cover the title of the appeal and the names of the agents for all parties;
  6. have affixed to the spine a sticker indicating clearly the volume number in Arabic numerals and short title of the appeal.

Where an authority or other document extends to many pages, only those pages that are relevant to the appeal should be copied.

6.4.3 The Board has on numerous occasions criticised the over-proliferation of authorities. It should be understood that not every authority that is mentioned in the parties' printed cases need be included in the volumes of authorities. They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in any of the recognised reports.

6.4.4 The cost of preparing the volumes of authorities falls to the appellants, but is ultimately subject to the decision of the Judicial Committee as to the costs of the appeal.

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The hearing

6.5.1 The Registrar lists appeals taking into account the convenience of all the parties. Provisional dates are agreed with the parties well in advance of the hearing and every effort is made to keep to these dates. Agents receive formal notification shortly before the hearing.

6.5.2 Parties should inform the Registry as early as possible of the names of counsel they have briefed.

6.5.3 The Judicial Committee usually hears appeals on Mondays from 11am-1pm and from 2-4pm, and on Tuesdays to Thursdays from 1030-1300 and 1400-1600.

6.5.4 Only in wholly exceptional circumstances will the Judicial Committee consider sitting in private. Any request for the Judicial Committee to sit in private should be addressed to the Registrar and should be copied to the other parties. The request should set out fully the reasons why it is made and the request together with any objections filed by the respondents will normally be referred to the Judicial Committee.

6.5.5 Generally, no more than two counsel will be heard on behalf of a party (or a single counsel on behalf of an intervener permitted to make oral submissions) (22).

6.5.6 If a party wishes to have a stenographer present at the hearing or to obtain a full transcript of the hearing, he must notify the Registrar not less than 7 days before the hearing. Any costs of the stenographer or of transcription must be borne by the party making such a request.

6.5.7 The Registrar will on request inform the parties of the intended constitution of the Judicial Committee for the hearing of a forthcoming appeal; this will be subject to possible alteration. Counsel should assume that the Judicial Committee will have read the printed cases and the judgment under appeal but not all the papers which have been filed.

6.5.8 Provided that all Counsel in the case agree, they may communicate to the Registrar their wish to dispense with part or all of court dress. The Board will normally agreed to such a request (23).

6.5.9 The Judicial Committee has been given permission for video footage of proceedings to be streamed live, and made available afterwards on the JCPC website. Permission has also been given for video footage of proceedings before the Board to be broadcast by media outlets where this does not affect the administration of justice and the recording and broadcasting is conducted in accordance with the protocol which has been agreed with representatives of the relevant UK broadcasting authorities. The Board may additionally impose such conditions as it considers to be appropriate including the obtaining of consent from all the parties involved in the proceedings (24).

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Costs

6.6.1 Rule 43 deals with orders for costs. If counsel seek an order other than that costs should be awarded to the successful party, they may make written submissions in accordance with rule 44 if the Judicial Committee so directs.

The original and 1 copy(25) of any written submissions must be filed at the Registry. Copies should also be sent to the other parties to the appeal. Costs submissions are considered without a hearing(26).

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Judgment

Place and time of judgment

6.7.1 Judgments are given on a day notified in advance. One week's notice is normally given.

Attendance of counsel

6.7.2 Counsel or agents for each party or group of parties who have filed a case may attend if the judgment is delivered in Court, but the attendance of counsel is not required.

6.7.3 The judgment of the Board may be made available to the parties' legal teams before judgment is given. In releasing the judgment, the Board gives permission for the contents to be disclosed to counsel, agents and solicitors (including solicitors outside London who have appointed London agents) and in-house legal advisers in a client company, Government department or other body. The contents of the judgment and the result of the appeal may be disclosed to the client parties themselves 24 hours before the judgment is to be given unless the Board or the Registrar directs otherwise. A direction will be given where there is reason to suppose that disclosure to the parties would not be in the public interest.

6.7.4 It is the duty of counsel and agents to check the judgment for typographical errors and minor inaccuracies. In the case of apparent error or ambiguity in the judgment, counsel are requested to inform the Court as soon as possible. This should be done by email to the judgments clerk, in line with the deadline provided. The purpose of disclosing the judgment is not to allow counsel to re-argue the case and attention is drawn to the opinions of Lord Hoffmann and Lord Hope in R (Edwards) v Environment Agency [2008] UKHL 22, [2008] 1 WLR 1587 (28).

6.7.5 Accredited members of the media may, with the express permission of the Board, be given a copy of the judgment in advance. The contents of this document are subject to a strict embargo, and are not for publication or broadcast before judgment has been delivered. The documents are issued in advance on the strict understanding that no approach is made to any person or organisation about their contents before judgment is given.

6.7.6 The Registrar will prepare a draft of the order, which will normally be sent to counsel for comment. If parties have been able to agree the order for costs, the Registry should be informed.

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Intervention

6.8.1 A person who is not a party to an appeal may apply in accordance with rule 27 for permission to intervene.

6.8.2 An application should be made in the general form of application, Form 2, (see paragraph 7.1 of Practice Direction 7) and should state whether permission is sought for both oral and written interventions or for written intervention only. The application should be filed with the prescribed fee and confirmation of the consent of the appellants and respondents in the appeal. If their consent is refused, the application must be endorsed with a certificate of service on them, with a brief explanation of the reasons for the refusal.

6.8.3 The application should explain the intervener's interest in the proceedings, and any prejudice which the intervener would suffer if the application were refused. It should summarise the submissions to be advanced if permission is given, and explain why those submissions will be useful to the court and different from those of the parties. If permission is sought for an oral intervention, the application should explain why oral intervention is necessary in addition to written intervention. If an intervener wishes to support the submissions to the Court with a witness statement and exhibits, permission to do so must be sought from the Court.

6.8.4 Applications for permission to intervene should be filed at least 10(31) weeks before the date of hearing of the appeal. Failure to meet this deadline may increase the burden on the parties in preparing their cases, and may delay the hearing of the appeal. If permission is given, written submissions must be filed and also given to the appellants and respondents. They should avoid repeating material that is in the parties' written cases. They should concentrate on the particular points that the intervener wishes to raise and should normally not exceed 20 pages of A4 size.

6.8.5 Permission is not given as a matter of course, even if no party objects. The fact that a person was allowed to intervene in the court below does not entitle a person to intervene in this Court. Permission will be given only for interventions which will provide the Court with significant assistance over and above the assistance it can expect to receive from the parties, and only where any cost to the parties or any delay consequent on the intervention is not disproportionate to the assistance that is expected.

6.8.6 Interventions will be allowed in writing only, unless compelling reasons are shown for the allowance of oral intervention. If oral intervention is allowed, the time allocated to an intervener will normally come out of the time allowed to the party with whose case the intervener's submissions are aligned. In considering applications to intervene, the Court will be mindful of the need to maintain a balance between the arguments before it, and the importance of the appearance, as well as the reality, of an equality of arms. It will also have regard to the matters mentioned in paragraphs 6.8.5 above and 6.8.8 below.

6.8.7 If permission is given, written submissions must be filed and also given to the appellants and respondents for incorporation into the core volumes at least 6 weeks (40) before the hearing. They should normally not exceed 20 pages of A4 size, inclusive of any supplementary documents, other than authorities. Permission should be sought if that limit is to be exceeded.

6.8.8 Interveners' submissions, whether written or oral, should focus on advancing the intervener's argument on a legal issue before the court. They should avoid repeating material that is in the parties' written cases. They should not challenge findings of fact. They should not ordinarily seek to introduce new evidence, especially where that would cause procedural unfairness to a party or undermine the basis on which the legal issues were considered by the courts below. They should not introduce new legal issues or seek to expand the case.

6.8.9 All counsel instructed on behalf of an intervener with permission to address the Court should attend the hearing unless specifically excused.

6.8.10 Subject to the discretion of the Judicial Committee, interveners bear their own costs and any additional costs to the appellants and respondents resulting from an intervention are costs in the appeal.

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Annex (32)

Video-link hearings

These are the requirements which have to be met if an appeal is to be heard via a video-link.

  1. Premises must be identified that have excellent internet access (50 Mbps minimum); this must be an ethernet cable connection and not Wi-Fi.
  2. Skype (not Skype for Business) will be used for the hearing as this is the only platform that the Board supports. It is freely available to access and the Skype login ID should be provided to the JCPC's IT team at the earliest opportunity.
  3. The premises must be professional and quiet. Small, modern meeting rooms are recommended as they provide the best acoustics. The room must be open to the public or the proceedings live-streamed to a place which is accessible to members of the public.
  4. The technical setup should be kept as simple as possible: a laptop/desktop connected to an external camera and microphone work best. The cameras must be positioned so that counsel are looking at the members of the Board and so that the members of the Board can see the whole room.
  5. Integrated room microphones are not recommended as they can create issues with software sound limiting.
  6. Approximately six to four weeks prior to the hearing, the JCPC IT team will contact the party overseas to carry out testing.
  7. The test will be used to check connection settings and should NOT be used to configure microphone and monitoring levels; that should be completed independently prior to testing.
  8. It is imperative that all testing is completed in the room that will be used for the hearing: failure to do this could result in the Board being advised that the hearing cannot go ahead on technical grounds.
  9. Parties must confirm approximately eight weeks before the hearing date that steps 1 and 2 have been achieved.
  10. Sitting times have to be agreed, taking into account the time difference between the country concerned and the Board in London. Please note that the hearing should end at 16:15 UK time if possible.
  11. If further technical information is required, please contact the JCPC IT team: +44 20 7960 1981 or +44 20 7960 1982 or email ICT@supremecourt.uk.

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Hearing protocol (33)

  • If counsel wish to stand, make sure the microphones are positioned so counsel speaks directly into the microphone
  • If counsel are seated, make sure they speak up and into the microphones
  • Counsel should speak clearly and not too quickly as there is a time lag
  • Counsel should make it clear when they have finished dealing with a point
  • The microphone will pick up any rustling or handling of papers etc. so all papers should be kept as still as possible. The microphones must be kept completely clear of papers, books etc; they must not be covered in any way
  • Counsel should not move out of the range of the camera or microphone
  • If a member of the Board wishes to interject, they will say 'stop' and hold up a hand
  • If it is necessary for counsel to interject, they should say 'My Lord/Lady, please' and hold up a hand
  • If counsel have to refer to a document which is not in the court bundle, it should be emailed to registry@jcpc.uk so it can be forwarded to the members of the Board in the courtroom.

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Footnotes

  1. Amended Oct 2020. Return to footnote 1
  2. Amended Apr 2015. Return to footnote 2
  3. Amended Nov 2018. Return to footnote 3
  4. Amended Oct 2020. Return to footnote 4
  5. Amended Apr 2015. Return to footnote 5
  6. Amended Oct 2020. Return to footnote 6
  7. Amended Jan 2012. Return to footnote 7
  8. Amended Oct 2020. Return to footnote 8
  9. Amended Oct 2020. Return to footnote 9
  10. Amended Oct 2020. Return to footnote 10
  11. Amended Oct 2020. Return to footnote 11
  12. Amended Oct 2020. Return to footnote 12
  13. Amended Oct 2020. Return to footnote 13
  14. Amended Oct 2020. Return to footnote 14
  15. Amended Oct 2020. Return to footnote 15
  16. Amended Nov 2018. Return to footnote 16
  17. Amended Apr 2015. Return to footnote 17
  18. Amended Nov 2018. Return to footnote 18
  19. Amended Oct 2020. Return to footnote 19
  20. Amended Nov 2018. Return to footnote 20
  21. Amended Nov 2018. Return to footnote 21
  22. Amended Dec 2015. Return to footnote 22
  23. Amended Jan 2012. Return to footnote 23
  24. Amended Apr 2015. The protocol ensures that certain types of proceedings and some aspects of proceedings such as private discussion between parties and their advisers are not recorded, televised or filmed. It also regulates the use of extracts of proceedings and prevents their use in certain types of programmes (such as party political broadcasts) and in any form of advertising or publicity. Return to footnote 24
  25. Amended Oct 2020. Return to footnote 25
  26. Amended Oct 2020. Return to footnote 26
  27. Amended Apr 2015. Return to footnote 27
  28. Amended Apr 2015. Return to footnote 28
  29. Amended Apr 2015. Return to footnote 29
  30. Amended Apr 2015. Return to footnote 30
  31. Amended Oct 2020. Return to footnote 31
  32. Added Nov 2018. Return to footnote 32
  33. Added Nov 2018. Return to footnote 33