New rules governing appeals to the Privy Council introduce a number of significant changes, including new time limits. The rules will have retrospective effect and will apply to appeals and applications which were filed before 21 April 2009.
The Judicial Committee (Appellate Jurisdiction) Rules Order 2009 ("the Order") was published on 11 February and will replace the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 as of 21 April 2009. The Order and the eight Practice Directions ("PDs") accompanying the Order can be found on the Privy Council's website.
The new rules clarify and streamline the appeal process and bear more resemblance to the rules applicable in the Court of Appeal and the House of Lords (soon to be the Supreme Court) and are – for that reason – likely to be welcomed by parties and practitioners. However, the rules also introduce new time limits which appear to apply with retrospective effect to appeals and applications filed before 21 April 2009, which will be of some concern. Although applications for extensions of these time limits may be made, the onus will be on the appellant to persuade the Registrar that there are good reasons why they should be extended.
A summary of the most significant changes under the new rules
Although it remains to be seen how the new rules will be applied in practice the following is a summary of the most significant changes and clarifications which parties and practitioners need to be aware of.
As mentioned above, the new rules will apply, with any necessary modifications, to appeals and applications which were filed before 21 April 2009 (Article 3). This would appear to include the new rules relating to time limits for the filing of permissions or notices of appeal by the appellant or notices of objection or acknowledgment by the respondent.
Where permission to appeal is required from the Judicial Committee an application for permission to appeal must be filed within 56 days from the date of the order or decision of the Court below or the date of the Court below refusing permission to appeal (if later) (Rule 11(2)). Where permission has been granted by the Court below the notice of appeal must be filed within 56 days from the date of the order or decision of the Court below or the date of the order or decision of that Court granting permission to appeal (if later) (Rule 18(2)).
Where the appellant has applied for financial assistance from public funds in their jurisdiction and informed the Registrar of that application these time limits will be extended until 28 days after the final determination of the application for financial assistance (Rule 5(5)).
There is provision for the Registrar to extend time limits either of his/her own volition or on application from a party which may be entertained after the time limit has expired (Rule 5(1) to (4)).
However, PD 5 para. 5.2.3. points out that time limits provided in the Order are considered to be generous and that "applicants for an extension of time must set out in some detail why they are unable to comply with any relevant time limit". Also, the appellant is required to seek the respondent's views on the extension of time sought and, if possible, communicate those views to the Registrar (PD 4 para. 4.4); although the respondent is expected not to withhold unreasonably their consent (PD 5 para. 5.2.4). PD 2 para. 2.1.15 clarifies that "the Registrar may reject an application for permission to appeal solely on the ground that it is out of time".
It remains to be seen how generous the Registrar will be when considering applications for extensions of time, in particular in relation to appeals against orders or decisions made before 21 April 2009 when no specific time limits applied. Under the old rules an appeal needed to be brought "with the least possible delay" but in practice might be brought months or even years after the date of the decision or order appealed from.
Similarly specific time limits apply to the respondent's involvement in the appeal process. While under the old rules the respondent was entitled to "enter an appearance at any time between the arrival of the Record and the hearing of the appeal", the new rules require the respondent to file their notice of objection (to the application for permission to appeal) and/or their notice that they intend to participate in the appeal within 14 and 21 days respectively (Rules 13(1) and 19(1)). Where these time limits are not adhered to (and are not extended) the respondent will not be permitted to participate in the application or the appeal and will not be given notice of progress (Rules 13(3) and 19(3)).
The new rules also contain several time limits for the filing of documents throughout the appeal process which parties and practitioners will need to be aware of.
Consideration of the application for permission to appeal
The old rules anticipated that save for consented or formal and non-contentious petitions all applications for leave to appeal were to be dealt with at a hearing before the Judicial Committee. The new rules provide that applications for leave will in the first instance be considered on paper and that the Judicial Committee may direct an oral hearing, presumably only where it considers it necessary (Rule 15). This is likely to cut down significantly on oral hearings at the application for permission stage.
It is perhaps noteworthy that the Registrar has retained his/her ability to refuse to accept an application "that contains no reasonable ground of appeal or is an abuse of process" (Rule 11(3)).
The test that will be applied by the Judicial Committee when considering whether to give permission to appeal is now set out in PD 3 para. 3.3.3 and is equivalent to the test in the House of Lords, i.e. does the application "raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal".
Applications for permission to appeal and notices of appeal
While according to the old rules the petition for special leave from the Judicial Committee and the subsequent petition of appeal were two separate documents, the new rules provide that where the Judicial Committee grants permission, the application for permission will stand as notice of appeal. Also, and perhaps more importantly, Rule 17(1)(b) now clarifies that "the grounds of appeal shall be limited to those on which permission has been granted".
Further PD 3 para. 3.1.2 and PD 4 para. 4.2.1 provide that the appellant may consult the Registry at any stage of preparation of the application, and submit their application for permission to appeal and/or notice of appeal in draft for approval.
Application to adduce fresh evidence
PD 6 para. 6.3.3 stipulates that where either party wishes to adduce fresh evidence, an application needs to be made either in the case or by filing an application for permission to adduce fresh evidence.
Statements of facts and issues
The new rules require the parties to produce a statement of relevant facts and issues (Rule 21 and PD 5 para. 5.1.7) and a one page précis of the case (PD 5 para. 5.1.8). These documents are initially to be drafted by the applicant and are supposed to be agreed between the parties before being filed with the Registry.
The new rules make express provision for the bringing of cross-appeals and are similar to the rules in the Court of Appeal. Where a respondent is seeking a variation of the order or decision of the lower court rather than wishing to argue that the decision or order should be upheld for different reasons they will need to seek permission to appeal either from the Court below or the Judicial Committee along the same lines that apply to applications made by the appellant (Rule 25 and PD 7 paras. 7.5.1 to 7.5.7). Similar time limits apply.
Service and filings
The rules require that the appellant's application for permission to appeal and notice of appeal as well as the respondent's notice of objection and intention to participate in the appeal be served on the other parties before they are filed at the Registry together with a certificate of service (Rules 12, 18(4), 13(2) and 19(2)). Rule 6 and PD 2 para. 2.1.20 contain provisions as to the possible methods of service which will be familiar from the CPR. There are similar provisions as to the methods and practicalities of filing documents with the Registry (Rule 7 and PD 2 paras. 2.1.7 to 2.1.11) including the requirement that all documents be filed both in hard copy and in electronic form.
Financially assisted persons
An appellant may make an application to be treated as a financially assisted person and such application needs to be supported by sworn evidence as to the applicant's means (Rule 38 and PD 7 para. 7.12.1). The application will be determined by the Registrar and entitles the applicant to seek remission or reduction of any liability for fees and costs and means that they will not be required to give security for costs. This is fairly similar to the old rules relating to "poor persons".
Security for costs
It is perhaps noteworthy that PD 4 para. 4.7.1 provides that "orders for security for costs will be sparingly made". Rule 37(2) states that where permission to appeal has been granted by the Court below, the question whether there should be an order for security for costs shall be a matter for that Court.
The current fee levels have been increased across the board by the rate of inflation since 2003 and are appended to the Order.
Overall the new rules will come as a welcome clarification of the appeal procedure and will feel more familiar to practitioners who have dealt with appeals to the Court of Appeal and the House of Lords. However, there is an inherent risk of being caught out by stricter and more specific rules on time limits and documents to be lodged with the Registry and only time will tell whether the Registrar will take a lenient approach when dealing with slips while the new rules bed down.